Abdulrahim v QBE Management Services Pty Limited [2016] FWC 4912 (22 July 2016) [2016] FWC 4912 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal ss.400A , 401 and 611 —Costs Khoder Abdulrahim v QBE Management Services Pty Limited (U2016/2) DEPUTY PRESIDENT KOVACIC MELBOURNE, 22 JULY 2016 Application for costs, including indemnity costs, against the Costs Respondent and his legal representative. [1] Mr Khoder Abdulrahim (the Costs Respondent) was employed by QBE Management Services Pty Limited (QBE – the Costs Applicant) as a Customer Service Officer until his summary dismissal on 23 December 2015. On 31 December 2015 Mr Abdulrahim lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal was unfair. That application was heard by the Fair Work Commission (the Commission) on 11 May 2016. In an ex tempore decision 1 handed down at the hearing, the Commission dismissed Mr Abdulrahim’s application after determining, among other things, that there was a valid reason for his summary dismissal. [2] On 19 May 2016 QBE made an application for costs under sections 400A (costs against parties in unfair dismissal cases), 611 and 401 (costs against lawyers and paid agents in relation to an unfair dismissal matter) of the Act. QBE also sought costs on an indemnity basis. In the absence of any request to the contrary, the Commission has determined the costs application on the papers. [3] For the reasons set out below, I am satisfied that an Order should be made pursuant to s.611(2)(b) that Mr Abdulrahim pay all of the costs, including disbursements, incurred by QBE in this matter on or after 20 April 2016. However, as QBE’s itemised schedule of accounts set out in its costs application did not “identify, by an item number, each cost and disbursement claimed” as required by Regulation 3.08(4) of the Fair Work Regulations 2009 (the Regulations), Directions will be issued requiring QBE submit an itemised schedule of costs which reflects my decision and complies with Reg 3.08(4). Background [4] In October 2015 Mr Abdulrahim purchased a discounted motor vehicle insurance policy under QBE’s Employee Insurance Program for his father’s motor vehicle. Mr Abdulrahim was nominated as the contact person for that insurance policy on the basis that his father could not speak English. [5] On 10 November 2015 Mr Abdulrahim made an insurance claim against that policy contending that someone had run into his father’s vehicle whilst it was parked in the street. [6] In December 2015 Mr Abdulrahim refused to participate in an interview with an investigator from QBE’s Financial Crimes Team regarding the abovementioned insurance claim. On 21 December 2015 QBE wrote to Mr Abdulrahim in the following terms: “On Friday 18 December, you were advised by Simon McQualter, Customer Service Manager Motorcycle to attend an interview with an investigator as instructed by the Financial Crime Team. This matter is in relation to a claim made in the name of Farouk Abdulrahim and the nominated contact on that claim is you. We have number of questions relating to this claim and given you are listed as a contact on the claim it is expected that you should be willing to assist the investigation. You have refused to participate previously and QBE considers this to be very concerning QBE is issuing you with a lawful and reasonable direction to attend an interview with Mr Peter Hiscock who we have engaged to assist in this matter… As an employee of QBE, you are expected to comply with this direction and if you do not attend, QBE may take disciplinary action including termination of employment.” 2 [7] Mr Abdulrahim did not subsequently agree to participate in the interview and on 23 December 2015 was summarily dismissed by QBE. The termination letter stated: “This is to advise QBE has made a decision to terminate your employment summarily, on the basis of your repeated failure to follow a lawful and reasonable direction to attend an interview with an investigator from the QBE Financial Crimes Team.” 3 [8] Mr Abdulrahim submitted, inter alia , that the direction issued to him by QBE was not available to it at law; that there was no valid reason for his dismissal and that should the Commission find that there was a valid reason for his dismissal, that his dismissal was harsh, unjust or unreasonable. [9] On the other hand, QBE submitted that Mr Abdulrahim’s dismissal was not harsh, unjust or unreasonable and that his application should be dismissed. In its submissions, QBE contended that its investigations had determined that 24 motor vehicle claims totalling over $106,000 and two household claims totalling more than $15,000 had been made from Mr Abdulrahim’s residential address, with Mr Abdulrahim’s personal bank account having been the nominated bank account for five QBE motor vehicle insurance claims during his period of employment with QBE. [10] Ms Claire Sultana, QBE’s Senior HR Specialist – Employment Relations, gave unchallenged evidence that Mr Abdulrahim indicated to her that his main reason for not participating in the interview was that the investigator had been very arrogant and that when she offered to provide a different investigator Mr Abdulrahim advised he was still not willing to participate in the investigation. [11] In my decision I noted that the QBE’s Code of Conduct stated at item 6.2 that “Employees are required, upon reasonable request by QBE, to provide full and complete cooperation with any investigation related to actual or potential breaches of this Code.” 4 Against that background, I concluded that the direction which QBE issued to Mr Abdulrahim on 21 December 2015 was a lawful and reasonable direction in circumstances where QBE had legitimate concerns about a potential conflict of interest regarding not only Mr Abdulrahim’s father’s insurance claim but also Mr Abdulrahim’s business, Essential Panel Perfections. I further concluded that Mr Abdulrahim’s spurious reason for not participating in the interview based on the conduct of the investigator no longer remained following Ms Sultana’s offer to provide an alternative investigator. [12] For all the above reasons, I determined that Mr Abdulrahim’s failure to comply with QBE’s direction constituted a valid reason for his dismissal. The statutory framework [13] The provisions of the Act relied upon by QBE in respect of its cost application are set out below together with s.402 of the Act which sets out the timeframe within which a costs application under either ss.400A or 401 of the Act must be made. “ 400A Costs orders against parties (1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter. (2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402. (3) This section does not limit the FWC’s power to order costs under section 611. 401 Costs orders against lawyers and paid agents (1) This section applies if: (a) an application for an unfair dismissal remedy has been made under section 394; and (b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative. (1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because: (a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter. (2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402. (3) This section does not limit the FWC’s power to order costs under section 611. 402 Applications for costs orders An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after: (a) the FWC determines the matter; or (b) the matter is discontinued. 611 Costs (1) A person must bear the person’s own costs in relation to a matter before the FWC. (2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note: The FWC can also order costs under sections 376, 400A, 401 and 780. (3) A person to whom an order for costs applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1).” [14] It is not disputed in this case that QBE’s costs application was made within 14 days of the Commission having determined Mr Abdulrahim’s application. Accordingly, s.402 is satisfied. The Costs Applicant’s case [15] QBE submitted that: Mr Abdulrahim caused QBE’s costs to be incurred unreasonably by continuing the proceedings to hearing [s.400A]; Mr Abdulrahim’s legal representative caused QBE’s costs to be incurred where it should have been reasonably apparent to her that Mr Abdulrahim had no reasonable prospect of success in the matter from at least when his submissions and evidence were filed in March 2016 and because aspects of his case, as filed, were unreasonably persisted with up to and during the hearing, and were then abandoned in final submissions, and by continuing the matter to hearing [s.401(1A)]; Mr Abdulrahim made the application vexatiously or without reasonable cause [s.611(2)(a)]; and it should have been reasonably apparent to Mr Abdulrahim, including with the benefit of legal advice, that he had no reasonable prospects of success [s.611(2)(b)]. [16] On the issue of indemnity costs, QBE submitted that it should have been reasonably apparent to Mr Abdulrahim and his legal representative from at least 26 April 2016 until just before the Commission handed down its decision on 11 May 2016 that Mr Abdulrahim had unwisely chosen to persist with his litigation and that he was well aware that he risked costs, including indemnity costs orders. QBE further submitted that Mr Abdulrahim, with the benefit of legal advice, made an imprudent refusal of an offer to compromise and that therefore indemnity costs should be awarded from 26 April 2016 which is the date that the offer lapsed. [17] In support of its submissions, QBE relied on a number of authorities including Green v Toll Holdings Ltd 5 ; Church v Eastern Health 6 ( Church ); Stanley v QBE Management Services Pty Limited 7 ( Stanley) ; and Spencer v The Commonwealth of Australia 8 . The Costs Respondent’s case [18] Mr Abdulrahim submitted that he truly believed that his application had reasonable prospects of success given his length of service. Mr Abdulrahim also submitted that he could not afford to pay the costs sought by QBE as he did not have any assets. [19] As to QBE’s costs application against Ms Mona Youssef, Mr Abdulrahim’s legal representative, Ms Youssef disputed a number of QBE’s contentions. Further, with regard to Ms Sultana’s attendance at the hearing, Ms Youssef submitted that QBE’s legal representative had confirmed that Ms Sultana was instructing him and contended that as such she would have attended the hearing regardless. Ms Youssef also pointed out that Ms Sultana was required to give evidence at the hearing. Consideration [20] In this instance the questions to be determined by the Commission are: Was Mr Abdulrahim’s application made vexatiously or without reasonable cause? Should it have been reasonably apparent to Mr Abdulrahim that his application had no reasonable prospect of success? Should it have been reasonably apparent to Mr Abdulrahim’s legal representative, Ms Youssef, that his application had no reasonable prospect of success? Should indemnity costs be awarded? [21] Each of these questions must be considered in the context of s.611(1) of the Act which provides that “ A person must bear the person’s own costs in relation to a matter before the FWC. ” [22] The meaning of the terms “vexatiously”, “without reasonable cause” and “no reasonable prospect of success” in s.611 of the Act were considered by the Full Bench in Church in the following terms: “[21] Ascertaining the meaning of s 611 necessarily begins with the ordinary and grammatical meaning of the words used. These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose. [22] There are some similarities between s 611 and s 570 of the FW Act. Section 570 deals with the circumstances in which a party to proceedings in a court in relation to a matter arising under the FW Act may be ordered to pay costs incurred by another party to the proceedings. Section 570 states: “570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings.” [23] Given the similarities between ss 611 and 570, in particular the common use of the expression “vexatiously or without reasonable cause”, judgements which have construed s 570 and its legislative antecedents are relevant to our consideration of s 611. [24] In Heidt v Chrysler Australia Ltd Northrop J said of s 197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor provision to s 570 of the FW Act: “The policy of s 197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties, defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.” [25] The application of these observations to the construction of s 611 requires some qualification. Section 570 deals with the ordering of costs in court proceedings in relation to matters arising under the FW Act. In court proceedings the usual practice is that an order for costs follows the outcome of the substantive proceedings. As we have mentioned the Commission context is different. The Commission’s power to order costs only arises in the context of ss 376, 400A, 401, 611 and 780 of the FW Act. There is no general practice of cost following the event. Despite these differences the observations of Northrop J in Heidt are apposite to s 611. [26] Section 611 sets out a general rule — that a person must bear their own costs in relation to a matter before the Commission (s 611(1)) — and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms: “2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA. 2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success. 2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters. 2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.” [27] In the context of s 570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s 570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s 611 of the FW Act. [28] We now turn to the exceptions to the general rule expressed in s 611(1) and the meaning of the expression “vexatiously or without reasonable cause”. [29] The question of whether an application was made “vexatiously” looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made “without reasonable cause” and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously “where the predominant purpose … is to harass or embarrass the other party, or to gain a collateral advantage”. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said: “The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously or unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.” [30] We now turn to the expression “without reasonable cause”. A party cannot be said to have made an application “without reasonable cause”, within the meaning of s 611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union , Wilcox J put it this way: “It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” [31] In the context of an appeal the question becomes whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. As Wilcox CJ (with whom Madgwick J agreed) observed in Imogen Pty Ltd v Sangwin : “The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If having regard to those matters, there was not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it would seem to me it cannot be fairly described as having been instituted ‘without reasonable cause’. This is so even if, in the result, the appeal proved unsuccessful.” [32] In the same matter Ryan J said: “The existence of ‘reasonable cause’ within the meaning of s 347 falls to be determined at the time when the relevant proceedings were instituted. The fact that the party instituting the proceedings later discontinues them is therefore not a matter to be taken directly into account in the application of the section. However, an appeal stands in somewhat different case from proceedings at first instance in that discontinuance may bear indirectly on the discretion conferred by s 347 by tending to confirm an impression derived from the grounds of appeal and the reasons for judgment below that the prospects of success on the appeal were slight. Not without significance to an assessment of the reasonableness of the institution of an appeal are the amount at issue and the nature of the points raised by the notice of appeal. Where, as here, the appeal is essentially against findings of fact made by the trial judge after a two day hearing resulting in a judgment for $16,900 and raises no important or distinctive point of law or principle, the Court may more readily conclude that it was not reasonable in the circumstances to have instituted it. On a fairly fine balance of the relevant considerations and not without hesitation, I have been led to reach that conclusion in this case and agree with the Chief Justice and the orders which he has proposed.” [33] In construing s 570 and its legislative antecedents courts have observed that the test imposed by the expression “without reasonable cause” is similar to that adopted for summary judgement, that is “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed”.” (Citations not included) [23] I turn now to deal with each of the questions which the Commission must determine in this case. Was Mr Abdulrahim’s application made vexatiously? [24] As stated by the Full Bench in Church “The question of whether an application was made “vexatiously” looks to the motive of the applicant in making the application.” [25] QBE submitted that in persisting with his compensation claim of over $500,000 on the basis that Mr Abdulrahim would have remained in his role for another 15 years and the alleged trauma which his dismissal had caused was patently misconceived and raised the question of whether Mr Abdulrahim persisted with his claim for an ulterior motive. As to the ulterior motive, QBE submitted that Mr Abdulrahim’s actions in doing so were most likely a misguided attempt to use untenable litigation as a way of getting back at QBE. [26] Mr Abdulrahim did not specifically address the issue of whether his application was made vexatiously in his submissions. [27] While I note QBE’s submissions, I would also observe that there is no evidence to support QBE’s assertion. In the absence of probative material pointing to some other purpose on Mr Abdulrahim’s part, I am not satisfied that his application was made vexatiously. Was Mr Abdulrahim’s application made without reasonable cause? [28] In Church the Full Bench observed that “A party cannot be said to have made an application “without reasonable cause”, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made.” The Full Bench then went on to refer to Justice Wilcox’s decision in Re Joseph Michael Kanan v Australian Postal and Telecommunications Union 9 . [29] QBE in its submissions cited paragraph [32] from Church but then did not further address why it considered that Mr Abdulrahim’s application was made without reasonable cause. Instead QBE’s submissions go on to address in some detail why Mr Abdulrahim’s application had no reasonable prospect of success. [30] Mr Abdulrahim did not specifically address the issue of whether his application was made without reasonable cause in his submissions. [31] As previously noted, Mr Abdulrahim submitted that the direction issued to him by QBE was not available at law; that there was no valid reason for his dismissal and that were the Commission to find that there was a valid reason for his dismissal, that his dismissal was harsh, unjust or unreasonable. While Mr Abdulrahim’s contentions as to the lawfulness of the direction given to him by QBE may not have been compelling, given his almost 10 years of employment with QBE Mr Abdulrahim’s subsequent contention that his dismissal was harsh does not support a finding that, drawing on the language in Church , his “application should not have been made.” [32] Against that background, I am not satisfied that Mr Abdulrahim’s application was made without reasonable cause. Should it have been reasonably apparent to Mr Abdulrahim that his application had no reasonable prospect of success? [33] In Church the Full Bench stated that “… the courts have observed that the test imposed by the expression “without reasonable cause” is similar to that adopted for summary judgement, that is “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed”.” [34] QBE submitted that it was objectively obvious at all times that Mr Abdulrahim’s application had no reasonable prospect of success. QBE further submitted that during the course of the proceedings it afforded Mr Abdulrahim a number of opportunities to withdraw his application early so as to limit the costs that it would incur, adding that it should have been reasonably apparent on all of the evidence filed that his application had no reasonable prospect of success. [35] Mr Abdulrahim submitted that he truly believed that his application had a reasonable prospect of success after he had been extremely loyal to QBE over a long period. [36] QBE’s submission and evidentiary material (including a folder of confidential evidence which was made available to Mr Abdulrahim and Ms Youssef), which was filed on 13 April 2016, was both comprehensive and compelling. Based on any reading of that material, it should have been clear to Mr Abdulrahim from that point, after allowing a reasonable period for him to digest QBE’s case and obtain legal advice on it, that in the light of the evidentiary case against him the merits of his application were particularly poor and that therefore his application had no reasonable prospect of success. Should it have been reasonably apparent to Mr Abdulrahim’s legal representative, Ms Youssef, that his application had no reasonable prospect of success? [37] QBE submitted, among other things, that it ought to have been reasonably apparent to Ms Youssef that Mr Abdulrahim’s application had no reasonable prospect of success from at least March 2016 when Mr Abdulrahim’s submissions and evidentiary material were filed with the Commission. [38] For the reasons outlined above, in the light of QBE’s evidentiary case against Mr Abdulrahim, it should have been abundantly clear to Ms Youssef, that the merits of Mr Abdulrahim’s application were less than compelling and that therefore his application had no reasonable prospect of success from when QBE filed its submissions and evidentiary material. In those circumstances, it behoved Ms Youssef to advise Mr Abdulrahim in the strongest possible terms that he should either discontinue his application or seek to settle the matter on mutually agreeable terms. It is not clear from the material before the Commission as to whether or not Ms Youssef did so. Should indemnity costs be awarded? [39] In Stanley , Commissioner Jones, as she then was, considered the power to order and the circumstances in which an order for indemnity costs might be made under s.611 of the Act. I adopt the Commissioner’s analysis, without repeating it. [40] Somewhat analogous to the circumstances in this case, in Stanley Commissioner Jones determined as follows: “[35] In this matter I have found that it was reasonably apparent to the Applicant that she had no reasonable prospect of success at the time she made her application on 28 February 2012. I have done so on the facts known or should have reasonably been known to her having regard to the material referred to in [33] of the costs decision. The award for indemnity costs requires some further factor influencing my discretion. [36] I am satisfied that the further factor operated from 18 May 2012 when, provided with all the material the Respondent relied on, and which is summarised in the costs decision at [33], the Applicant failed to discontinue her proceedings. Allowing some time for the Applicant to read QBE’s Outline of Submission and witness statements filed on 18 May 2012, I am satisfied that it was “delinquent” of the Applicant not to have discontinued on 20 May 2012.” (Underlining added) [41] QBE submitted that it ought to have been reasonably apparent to both Mr Abdulrahim and Ms Youssef from at least 26 April 2016 until just before the Commission handed down its decision on 11 May 2016 that Mr Abdulrahim had unwisely chosen to persist with his application and that he risked costs, including indemnity costs orders. [42] Mr Abdulrahim did not address this issue in his submissions. [43] As stated above, it should have been clear to Mr Abdulrahim and Ms Youssef once they received QBE’s submissions and evidentiary material on 13 April 2016 that Mr Abdulrahim’s application had no reasonable prospect of success. In those circumstances, drawing on the language in Stanley , I consider it delinquent that he did not discontinue his application at the time. This supports a finding that it is appropriate in this case to order indemnity costs from 20 April 2016 until the matter was determined by the Commission on 11 May 2016. The gap between 13 and 20 April 2016 is to allow one week for Mr Abdulrahim to absorb QBE’s submissions and evidentiary material and to obtain legal advice on the materials relied upon by QBE. Summary [44] In circumstances where I have found that from 20 April 2016 it should have been clear to Mr Abdulrahim that his application had no reasonable prospect of success, I consider his failure to discontinue his application at that time warrants the Commission departing from the approach specified in s.611(1) of the Act and exercising its discretion to order costs from that date. For the reasons outlined above, I also consider that Mr Abdulrahim’s failure to discontinue his application at that time warrants the Commission ordering indemnity costs in this case. [45] As to Ms Youssef, based on the material before the Commission, I am not satisfied that she encouraged Mr Abdulrahim to continue his application after 13 April 2016. As such, I am not prepared to exercise the discretion available to the Commission under s.401(1A) to make an order requiring Ms Youssef to pay some or all of the costs incurred by QBE in this matter on or after 20 April 2016. Conclusion [46] For all the above reasons, I am satisfied that an Order should be made pursuant to s.611(2)(b) that Mr Abdulrahim pay all of the costs, including disbursements, incurred by QBE in this matter on or after 20 April 2016. However, while QBE provided an itemised schedule of accounts in its costs application, that itemised schedule did not “identify, by an item number, each cost and disbursement claimed” as required by Regulation 3.08(4) of the Regulations. Accordingly, Directions will be issued requiring QBE submit an itemised schedule of costs which reflects my decision and complies with Reg 3.08(4). 1 [2016] FWC 2985 2 Exhibit 2 at Annexure CS-6 3 Ibid at Annexure CS-9 4 Exhibit 2 at Annexure CS-10 5 [2016] FWC 2790 6 (2014) 240 IR 377 7 [2012] FWA 10164 8 [2010] HCA 28 9 [1992] FCA 366 Printed by authority of the Commonwealth Government Printer <Price code C, PR583158>