Industrial Relations Commission of New South Wales CITATION : Vernon and Broadwall Pty Ltd [2002] NSWIRComm 109 PARTIES : Lee Vernon Broadwall Pty Ltd FILE NUMBER: IRC5262 of 2001 CORAM: Harrison DP CATCHWORDS : Application for costs by respondent Found - Unfair dismissal application found to be frivolous and vexatious - costs awarded - argument that costs limited to fees charged by legal practitioners refused. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 02/13/2002 DATE OF JUDGMENT: 05/23/2002 APPLICANT Mr D Dimitric of Hynes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Royce of Australian Industrial Reinstatement Services JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 23 May 2002 Matter No IRC 5262 of 2001 LEE VERNON AND BROADWALL PTY LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE COSTS [2002]NSWIRComm 109 1 A decision was issued in the substantive proceedings of this matter on 12 March 2002 in favour of Broadwall Pty Limited ('the respondent'). The respondent now makes application for costs to the amount of $4,602.38. 2 Directions were issued on 28 March 2002 setting out a schedule for the provision of written submissions and a requirement that the parties indicate in those submissions whether they were content for the matter of costs to be resolved on the basis of written submissions or whether they sought an opportunity for hearing. 3 Written submissions are now received from Mr D Dimitric of Hynes Lawyers on behalf of Mr Lee Vernon, the applicant and from Mr S Royce of Australian Industrial Reinstatement Services on behalf of the respondent. 4 The respondent seeks indemnity costs of $8,587.38 and indicates that they are content for the matter to be resolved on the basis of written submissions. 5 Submissions received on behalf of the application oppose an order of costs, however, do not deal with the direction which required an election as to the method of disposition. 6 In the absence of a request to be heard, I proceed to determine the matter on the basis of the written submissions. 7 Costs are available in proceedings brought pursuant to s 84 of the Industrial Relations Act 1996 ('the Act') pursuant to s 181(2)(c) which states: (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 8 The respondent argues that the application was frivolous and vexatious, a conclusion self-evident from the primary decision delivered on 12 March 2002. 9 The applicant refutes the assertion that the application was frivolous or vexatious, submitting that there was an arguable case determined by the Commission on the basis of extensive evidence and submissions from the parties; and that the applicant was successful in persuading the Commission to exercise discretion pursuant to s 85 of the Act to admit the application out of time. The applicant puts an argument that this exercise of discretion is an indicator of merit in the application. 10 The applicant further contends that costs are limited to "legal costs", characterised by the applicant in his submissions as those arising from the engagement of a duly qualified legal practitioner with a certificate to practice in the state of New South Wales. CONSIDERATION 11 The notion that extension of time is inextricably linked to merit is misguided. 12 S 85 of the Act sets out criteria upon which the Commission is required to determine an exercise of discretion. There should be no doubt in the minds of any party that the exercise of discretion to admit this application out of time arose directly and solely from the New South Wales/Queensland cross border jurisdictional dilemma, not merit. 13 The argument that costs are to be limited to those incurred as a result of advice or appearance by a legally qualified practitioner is absurd. 14 Costs are discretionary and accordingly a matter for the Commission to consider as to extent, substance and reasonableness. 15 The arguments put by the respondent in support of its application for costs in this matter are made out. The criteria of frivolous or vexatious necessary to evoke an exercise of discretion found in s 181(2)(c) is met. I find the application was more vexatious than frivolous and determine that an award of costs should be made. 16 It is not appropriate, in my view, for a consideration of indemnity costs. Costs are awarded against the applicant to the amount of four thousand six hundred and two dollars and thirty eight cents ($4,602.38). oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 23 May 2002 Matter No IRC 5262 of 2001 LEE VERNON AND BROADWALL PTY LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to s 181(2)(c) of the Industrial Relations Act 1996 Mr Lee Vernon is ordered to pay to Broadwall Pty Ltd the amount of four thousand six hundred and two dollars and thirty eight cents ($4,602.38) no later than 5 July 2002. I so order. The Hon R W Harrison Deputy President 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.