Industrial Relations Commission of New South Wales CITATION : Dorothy Jonns Total Beauty and Slimming Centre Pty Limited and Goode [2001] NSWIRComm 34 APPELLANT Dorothy Jonns Total Beauty and Slimming Centre Pty Limited PARTIES : RESPONDENT Barbara May Goode FILE NUMBER: IRC 6287 of 2000 CORAM: Wright J President CATCHWORDS : Costs application - Appeal against decision in unfair dismissal proceedings - Whether appeal instituted without reasonable cause - Circumstances relevant to that issue - Application for costs granted. LEGISLATION CITED : Industrial Relations Act 1996 s 89(5) s 181 s 190A Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 CASES CITED : Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 Imogen Pty Ltd v Sangwin (1996) 70 IR 254 Pendergast v Tony Blain Pty Ltd [2000] NSWIRComm 107 HEARING DATES: 12/29/2000; 02/01/2001 DATE OF JUDGMENT: 03/14/2001 APPELLANT Mr G Krayem The Australian Retailers Association, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr L N Dunn, Solicitor Collaroy NSW JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WRIGHT J, President Wednesday 14 March 2001 Matter No IRC 6287 of 2000 DOROTHY JONNS TOTAL BEAUTY AND SLIMMING CENTRE PTY LIMITED AND BARBARA MAY GOODE Application to extend time to appeal, leave to appeal and appeal against a decision of Redman C given on 30 November 2000 in Matter No IRC2000/1817. DECISION [2001] NSWIRComm 34 1 On 1 February 2001 the Commission as presently constituted ordered that the appeal in the present proceedings be dismissed for want of appearance by the appellant and that the stay order earlier made by consent on 29 December 2000 be lifted. The application for costs made by the respondent, who was represented at that time by Mr L N Dunn solicitor, was reserved. 2 However, because of the non-appearance of the appellant, the operation of the order dismissing the appeal was suspended until 4 pm on 21 February 2001 to enable the Industrial Registrar to advise the Australian Retailers Association (which acted for the appellant) of the orders and to invite it to provide an appropriate explanation of the failure of the appellant to appear and also to provide submissions as to the costs application made by the respondent. 3 This decision deals with the costs application and it is appropriate to set out some of the background to the present proceedings. However, before referring to that material, it is appropriate to indicate that, in my opinion, notwithstanding that the present costs application is made as to an appeal and the Commission is presently constituted by a single member of the Commission, a single member has power to determine the question of costs in the matter because of the terms of s 181 of the Industrial Relations Act 1996, and particularly so when that provision is read with s 190A. Background to the proceedings 4 The application for leave to appeal and appeal and the associated application to extend time was lodged on 22 December 2000 and related to a decision of Redman C given on 30 November 2000 in Matter No IRC2000/1817. Because the application not only involved an application to extend time but also an application for a stay, the matter was listed for directions and hearing during vacation on 29 December 2000 and at that time Mr G Krayem , an officer of the Australian Retailers Association, New South Wales, appeared for the appellant and Mr L Dunn solicitor appeared for the respondent. 5 At that hearing, the solicitor for the respondent adopted what I consider to be an entirely reasonable approach. He indicated that his client had been approached on 22 December with a request that she consent to an extension of time. The respondent indicated a willingness to consent subject to a condition. Immediately following those discussions the present proceedings were instituted and there was no response to the respondent's offer. The condition was straightforward: that the sum awarded to the respondent by Redman C be paid into an account and held in trust pending the outcome of the proceedings. 6 The advocate for the appellant indicated that the appellant did not have the financial means to pay the relevant sum into a trust account and that it would be necessary to seek a loan from a financial institution for that purpose. 7 Subsequently, at the suggestion of the Commission, the parties conferred at some length and an agreement was reached to enable the matter to be set down for hearing in May and listed for further directions on Thursday 1 February 2001. The consent orders made by the Commission were the grant of the application to extend time and a stay of the orders of Redman C subject to: (a) The appellant paying into the trust account of the respondent's solicitor the sum of $9,000 not later than 12 January 2001; (b) Dorothy Jonns giving an undertaking to the Commission for the period up to and including 12 January 2001 that she guarantee the payment of the moneys referred to above. After 12 January 2001 the liability of Dorothy Jonns would be no more than that attached to her as a director of the appellant. 8 The agreement also provided that in the event that the appellant determined not to proceed with the appeal then it would discontinue the proceedings forthwith and any moneys held by the respondent's solicitor pursuant to the orders would be paid out to the respondent. The costs of the proceedings were reserved at the request of the respondent's solicitor. 9 On 1 February Mr Dunn advised the Commission that one of the arrangements reached between the parties on the earlier occasion was that the appellant was to advise his office by 12 January 2001 of its intentions regarding the appeal; and it had not done so. Further, that a term of the earlier settlement was that, in the event the appellant decided not to proceed with the appeal, it was to discontinue the proceedings forthwith. Again this had not occurred. Mr Dunn also indicated that attempts on his part to contact Mr Krayem of the Australian Retailers Association by telephone had been unsuccessful. He had been advised that Mr Krayem was not available and messages left had not been responded to. Similarly, attempts to contact the office of the Association a short time before the matter came before the Commission had not been successful; he was not able to speak to any industrial officer who knew what was happening in the matter. Finally, the term as to the payment of money contemplated by the consent orders as to the stay made on 29 December 2000 was not adhered to. 10 It is reasonable to conclude on the material available up to that point that whilst the respondent and her legal representative appeared to be acting in an entirely appropriate way and indeed one which represented a somewhat lenient and entirely co-operative approach to progressing the litigation, the same could not be said for the appellant. 11 On 20 February 2001 an affidavit was filed by Mr Krayem . It is unnecessary to go to the material included in that affidavit except to indicate that the non-appearance before the Commission on 1 February 2001 and the failure to provide appropriate notice to the respondent had arisen from a combination of oversight and leave over the New Year period. It was also indicated that the Australian Retailers Association had reviewed the matter and obtained the advice of counsel and that "after considering its position further, the [appellant] elected not to proceed with the appeal. The [appellant] instructed the Association to advise both the Commission and the [respondent] of this course". That did not occur apparently through oversight. It is also relevant to note that, notwithstanding the letter from the Registrar made plain that the appellant was advised to file submissions in relation to the question of costs by 21 February 2001, no such submissions were received. The costs issue must therefore be determined on the material before the Commission. 12 The power to award costs in proceedings such as the present is limited. The limitation arises from the terms of s 181 of the Act which relevantly provides: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or … (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 13 The relevant parts of the section may be dealt with shortly. First, the Commission when not in Court Session has only limited powers to award costs. That is, costs may be awarded only in certain specified circumstances. Second, subject to a relevant circumstance being demonstrated, the question of costs is in the discretion of the Commission. Although I consider that the circumstances set out respectively in paragraphs (a), (b) and (c) of subsection 181(2) potentially apply to the present appeal proceedings, the only paragraph which seems actually applicable to the circumstances of this matter is that set out in s 181(2)(b). The issue then becomes a question of whether it is open to the Commission to form the opinion that the appellant instituted the present proceedings without reasonable cause. 14 There have been a number of recent Full Bench decisions which have considered the question of costs in unfair dismissal proceedings, or in relation to appeals in such proceedings: see Bankstown City Council v Paris (1999) 93 IR 209; Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 and Pendergast v Tony Blain Pty Ltd [2000] NSWIRComm 107. Those decisions essentially relate to applications made under s 181(2)(c) except that, in the last mentioned decision, there is also reference to an application made under the other limbs of s 181(2). However, the consideration by the Full Bench in that case related specifically to the facts of that case. 15 It is therefore appropriate to set out what I consider to be the approach that should be adopted in relation to an application for costs to which s 181(2)(b) is relevant. Although the question the Commission needs to consider is whether the party instituting proceedings did so without reasonable cause, it is appropriate in forming that opinion where circumstances subsequent to that commencement are relevant to the issue, to have regard to such circumstances. In doing so, it is also appropriate in the context of an appeal (as noted in Bankstown City Council v Paris at 220) to have regard to the following observations of Wilcox CJ in Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 260 - 261: I appreciate that a party who has been unsuccessful at trial may wish to have time to consider whether or not to prosecute an appeal. In order to avoid losing its right of appeal, the party may file a notice of appeal with the intention of discontinuing the appeal if, on reflection, it decides against proceeding. It is usual, in such a case, for the party who files the notice of appeal to inform the opposing party that no final decision has yet been made as to the prosecution of the appeal and to suggest that the latter may defer incurring any substantial costs in connection with the appeal, pending a further intimation. 16 It is also relevant to have regard to the current statutory scheme as to appeals which was described in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 in the following way: The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. 17 The matters which then require consideration are the decision appealed from and the notice of appeal. The decision appealed from is a detailed decision delivered on 30 November 2000. For present purposes it is sufficient to note that the decision related to a dismissal which was portrayed as one brought about by a redundancy situation where the employer had, for financial reasons, decided to "abolish" the position held by the respondent. In determining the matter, the commissioner held that the evidence before him did not make out the financial difficulties which the appellant relied on and, in any event, the respondent was denied an opportunity to put forward any proposal to the employer for consideration of a course of action other than her dismissal. The employee was, on the commissioner's finding, "denied a fair consideration of alternatives to dismissal". A discretionary consideration, raised by the employer as a basis to decline any grant of compensation to the respondent, which related to an alleged misrepresentation of her qualifications, was treated by the commissioner as irrelevant in the light of his findings as to the way in which the employee was originally employed. The commissioner awarded the sum of $9,000 pursuant to s 89(5) which represented an amount equal to approximately ten weeks wages. 18 Turning to the notice of appeal, the grounds as to leave to appeal included a jurisdictional issue as to the power of the Commission where an employee had been terminated on account of redundancy; an issue as to assessment of compensation and the obligation to provide reasons for the assessment of same; and an issue as to reliance on information discovered by an employer following the dismissal of an employee. The grounds of appeal included the assertion that the commissioner erred in law in requiring the appellant to establish the need for the respondent to be made redundant and error in holding that the respondent had an obligation to discuss with the respondent alternatives to dismissal. There are other grounds of appeal but the most significant have, I think, been shortly stated. 19 Having carefully read the commissioner's decision and also the grounds set out in the notice of appeal both as to leave to appeal and as to the substantive appeal, and having regard to the requirements of the Act as to leave to appeal and the provisions which govern the hearing of an appeal, I consider that the appeal was bound to fail. On that basis, I consider that it is open to find that the appeal was instituted without reasonable cause in terms of s 181(2)(b). However, as earlier indicated, I consider that it is appropriate to consider all the relevant circumstances of the appeal. That is, not only the circumstances as at the time of the initiation of appeal but, at least in the circumstances of this case, the circumstances up to and including the non-appearance of the appellant in the further proceedings before the Commission on 1 February 2001. When all of those considerations are taken into account the situation is one which clearly meets the relevant criteria. Not only was the appeal, when lodged, bound to fail but, in addition, notwithstanding what has been found to be the reasonable and co-operative approach adopted by the respondent and her solicitor, the agreement reached by the respondent in that spirit of co-operation was not honoured either in the letter, or in spirit, by the appellant. Notwithstanding this situation, the appellant obtained a stay of the commissioner's order for a period of some significance. The appellant thereby gained through the lodging of an appeal a stay which, with the benefit of hindsight, should not have been properly allowed to it. This, in my view, only occurred because of the co-operative attitude adopted by the respondent, and may have been agreed because of the perceived need to have the proceedings go forward. I do not consider that the circumstances, on analysis, come within the situation discussed in Imogen Pty Ltd v Sangwin . In all the circumstances, the application meets the statutory criterion in s 181(2)(b) and there is no reason why the resulting discretion should not be exercised in favour of the respondent. The respondent has suffered delay and incurred legal costs unnecessarily. An order for costs should therefore be made in her favour. Orders 20 Accordingly, the Commission makes the following orders: 1. The appellant shall pay the respondent's costs of and in connection with the application for extension of time and application for leave to appeal and appeal filed by the appellant on 22 December 2000 in a sum as agreed, or in default of agreement, as assessed. 2. These proceedings are now concluded. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.