Applied Medical Australia P/L v Monaghan CASE PROCEDURES – costs – lawyers and paid agents – ss.400A, 611 Fair Work Act 2009 – application for costs orders – related to unsuccessful claim under s.394 for unfair dismissal remedy – worker had been dismissed in connection with their status as an ‘unvaccinated person’ – employer applied for costs order under ss.400A and 611(2) Fair Work Act – order seeks that worker pay some of employer’s costs in defending the unfair dismissal application – Commission may order costs against a party if it is satisfied that an unreasonable act or omission caused the other party to the matter to incur costs (s.400A) – Commission may also order that a person bear some or all the costs if an application is made or responded to vexatiously or without reasonable cause or it should have been reasonably apparent that the application or response had no reasonable prospects of success (s.611) – employer submitted that the unfair dismissal application was vexatious, without reasonable cause and had no prospects of success – whether it is ‘reasonably apparent’ that an application or response to an application has no reasonable prospects of success requires an objective test [Baker] – Commission determined the worker did not act vexatiously in their unfair dismissal application – an application ‘is not without reasonable cause just because it fails or is not accepted’ – Commission held unfair dismissal application was not made without reasonable cause – Commission rejected employer’s argument that the unfair dismissal application had no reasonable prospects for success – application for costs under s.611(2) refused – employer then relied upon s.400A – employer argued that worker failed or refused to discontinue their application numerous times, sought last minute adjournments, failed to comply with Commission directions and was combative during proceedings – argued that worker’s failure to comply with directions constituted an unreasonable omission and caused costs to be incurred by the employer – worker argued that the financial, psychological and personal suffering endured during proceedings should persuade the Commission to refuse the costs order – Commission rejected this and concluded in favour of the employer – application allowed – costs order awarded under s.400A. U2022/7842 [2022] FWC 3263 Gostencnik DP Melbourne 15 December 2022
