CITATION : 2013 WAIRC 00387 CORAM : COMMISSIONER S J KENNER HEARD : THURSDAY, 21 MARCH 2013, TUESDAY, 4 JUNE 2013, MONDAY, 26 AUGUST 2013, TUESDAY, 27 AUGUST 2013 DELIVERED : TUESDAY, 2 JULY 2013 FILE NO. : B 19 OF 2013 BETWEEN : FRANK MORETTI Applicant AND H J HEINZ CO AUSTRALIA LTD Respondent 1720 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Catchwords : Industrial law - Contractual benefits claim - Application for costs thrown away - Applicant’s agent unable to appear due to illness - Commission’s power to award costs under s 27(1)(c) of the Industrial Relations Act 1979 (WA) - Relevant principles applied - Application dismissed. Legislation : Industrial Relations Act 1979 (WA) s 27(1)(c) Result : Application for costs dismissed Representation: Applicant : In person Respondent : Mr M Rodgers as agent and with him Ms J Tiffin Case(s) referred to in reasons: Brailey v Mendex Pty Ltd (1993) 73 WAIG 26 Case(s) also cited: Edwards v Turner & Townsend Pty Ltd [2011] WAIRC 01148 Klemm v Darg Pty Ltd (1996) 76 WAIG 2019 McGlone v Alvic Pty Ltd (1986) 66 WAIG 1753 Shaw v City of Wanneroo [2012] WAIRC 00088 Reasons for Decision 1 The substantive application in this matter is a claim by Mr Moretti that he was denied contractual benefits by way of redundancy payments. Mr Moretti claims the sum of $74,888. 2 The application was listed for hearing on 4 June 2013. On the morning of the hearing Mr Moretti’s agent, Mr Mullally, advised my Associate that he had taken ill and was unable to appear on behalf of his client. A medical certificate accompanied an email to my Associate. Mr Mullally had also alerted the agent for Heinz that he was unwell and had hoped that medication would enable him to continue to appear. That was prior to attending his doctor who certified him as totally unfit for work. Accordingly Mr Moretti appeared in person before the Commission and sought an adjournment of the application. 3 In the circumstances, the agent for Heinz did not oppose the adjournment but however, has made an application for costs thrown away by it. This is because both he and a representative of his client travelled to Perth from Brisbane for the hearing. Additionally, video conferencing arrangements had been made for the taking of evidence from witnesses for Heinz from Melbourne. Having due regard to these matters the Commission granted the adjournment and directed Heinz to file a bill of costs claimed. It has done so and claims costs in the total sum of $2,386. The costs claimed include two return airfares Brisbane – Perth – Brisbane; accommodation; car hire; and Brisbane parking and cab charges. It was ultimately unnecessary to claim costs for the video link. 4 In response to the application for costs, Mr Moretti was afforded an opportunity to file written submissions which he has done. The submissions of Mr Moretti are to the effect that the adjournment, although regrettable, was necessary due to no fault of either Mr Moretti or Heinz. The reason for the adjournment was a genuine and sudden substantial illness of Mr Moretti’s agent, which was supported by a medical certificate certifying Mr Mullally as being totally unfit for work until 7 June 2013. A reference was made in Mr Moretti’s written submissions to the relevant principles in relation to the awarding of costs in the Commission’s jurisdiction. In particular, the decision of the Full Bench in Brailey v Mendex Pty Ltd (1992) 73 WAIG 26. In Brailey, the Full Bench referred to the Commission’s power to award costs under s 27(1)(c) of the Act, but observed however, that given the general policy in industrial jurisdictions, costs should not be awarded except in extreme cases. Of course, costs may not be awarded for the services of a legal practitioner or industrial agent. Accordingly, Mr Moretti submitted that the principle is that it is only in extreme or exceptional circumstances will cost be awarded. 5 In the present circumstances, Mr Moretti contended that the adjournment, although very regrettable, was not caused by any conduct of the applicant himself, or any intentional or negligent conduct of his agent, such that costs should be awarded. Consideration 6 It is the case as Mr Moretti has submitted that the Commission’s jurisdiction to award costs under s 27(1)(c) of the Act is discretionary, however the discretion is to be exercised only in circumstances where there is an exceptional and compelling reason to do so. In this matter, it is most regrettable that the application had to be adjourned at very short notice, after Heinz’s agent and representative arrived in Perth and incurred travel and accommodation costs. However, it must also be taken into consideration by the Commission, that the reason for the adjournment was an unanticipated and genuine incapacitating illness of Mr Moretti’s agent. It would obviously have been unfair on Mr Moretti, for the hearing of the application to have proceeded in the absence of Mr Moretti’s agent. That being so, in my view, the circumstances giving rise to the adjournment, do not cause the Commission in this case, to conclude that the circumstances are exceptional or extreme, to warrant the imposition of a costs order on Mr Moretti. To do so in the present case, would be tantamount to punishing him, for circumstances over which he had no control. 7 Accordingly, the application by Heinz for costs is refused. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1721 2013 WAIRC 00388 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES FRANK MORETTI APPLICANT -v- H J HEINZ CO AUSTRALIA LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 2 JULY 2013 FILE NO/S B 19 OF 2013 CITATION NO. 2013 WAIRC 00388 Result Application for costs dismissed Representation Applicant In person Respondent Mr M Rodgers as agent and with him Ms J Tiffin Order HAVING heard Mr F Moretti on his own behalf and Mr M Rodgers as agent on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application by the respondent for costs be and is hereby dismissed. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00956 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION