PR974462 PR974462 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.643 - Appl’n for relief re (Unlawful and HUU) termination of employment J Bellinger and MG & BM cash (U2006/4294) M Bellinger and MG & BM cash (U2006/4297) COMMISSION FOGGO MELBOURNE, 31 OCTOBER 2006 Termination of employment – application for costs. DECISION [1] This decision is in relation to two applications made to the Commission pursuant to s.643 of the Workplace Relations Act 1996 (Workchoices)(the Act). The applicants J.�Bellinger and M. Bellinger are a married couple who worked for the same employer MG and BM Cash. The reasons for the termination of employment are the same and the applicants’ have lodged the same reasons for their applications. In these circumstances the parties have requested, and it is logical, that the applications be heard concurrently. The Applications [2] The file relating to the application shows as follows; On 29 May 2006 the applications were lodged alleging that the terminations of employment were harsh, unjust or unreasonable and unlawful. On 7 June 2006 the respondent, through their solicitor, filed a notice of employer’s appearance which included a motion to dismiss the applications on the grounds that the applicants were engaged on written contracts of employment for a specified period, that the employees were dismissed while serving a period of probation and that the employer employs less than 100 people. On 8 June 2006 the Registry wrote to the applicants to advise them of the jurisdictional objection and that the objection would need to be determined by the Commission. On 19 June 2006 Senior Deputy President Acton issued directions which sought the filing of submissions and supporting material on specified dates prior to a jurisdictional hearing to be conducted in Warrnambool although the Directions did not state the specific time of the hearing. On 6 July 2006 the respondent complied with directions by filing their submissions and witness statement. In these submissions the respondent included a request that costs be awarded against the applicants. The matters had now been allocated to Commissioner Blair who listed them for 29 August 2006 in Warrnambool. On 11 August 2006, after failing to comply with the directions issued by Senior Deputy President Acton, the applicant’s representative advised the Commission of their appearance and included Notices of Discontinuance from the two applicants. On 16 August 2006 as a result of the receipt of the Notices of Discontinuance the jurisdictional hearing listed before Commissioner Blair was cancelled. Also on 16 August 2006 the respondent’s representative requested a rescheduling of the hearing which had been cancelled. Mr Kennedy stated that the respondent’s now sought to pursue an Order for Costs against the applicants. The terms of the applications were stated as follows; “ We request that the listing be rescheduled as the respondents seek to have the Commission make an order that the applicant pay costs of these proceedings, which application was detailed in paragraph 5 of the Respondent’s Submission in Support of Jurisdictional objection dated 6 July 2006 and filed with the Commission on 6 July 2006. ” The submissions referred to state as follows at paragraph 6; “ That the applicant pay the respondent’s costs in these proceedings in the circumstance where the applicant was fully aware of the basis upon such proceedings were defended by the respondent, but failed to withdraw his application. ” Both Mr and Mrs Bellinger received letters in the same terms. On 17 August 2006 the matters were relisted for a costs hearing before Commissioner Blair at the same date and time of the jurisdictional hearing. On 24 August 2006 the parties were advised the matters would now be heard by the Commission as currently constituted. [3] The hearing relevant to this costs application was conducted in Warrnambool on 30�August 2006. Mr Kennedy represented the applicants in this application who are the respondents in the original application. Mr Collopy represented the applicants who are the respondents in this matter. The Legislative Framework [4] The relevant section of the Act under which the application is made is s.658 which states as follows; “ 658 Commission may order payment of costs (1)�If the Commission is satisfied: (a)�that a person ( first party ): (i)�made an application under section�643; or (ii)�began proceedings relating to an application; and (b)�the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding; the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party. (2)�If the Commission is satisfied that a party ( first party ) to a proceeding relating to an application under section�643 has acted unreasonably in failing: (a)�to discontinue the proceeding; or (b)�to agree to terms of settlement that could lead to the discontinuance of the application; the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party. (3)�If the Commission is satisfied: (a)�that a party ( first party ) to a proceeding relating to an application made under section�643 caused costs to be incurred by the other party to the proceeding; and (b)�that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding; the Commission may, on an application by the other party under this section, make an order for costs against the first party. (4)�If the Commission is satisfied: (a)�that a person (the representative ) representing a party to a proceeding relating to an application made under section�643 caused costs to be incurred by the other party to the proceeding; and (b)�that the representative caused the costs to be incurred because of the representative’s unreasonable act or omission in connection with the conduct of the proceeding; the Commission may, on an application by the other party, make an order for costs against the representative. (5)�In making a decision under this section, the Commission may have regard to any certificate issued or advice given under section�650 and whether a party pursued a course of action contrary to any such certificate or advice. (6)�An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section�643 or proceeding relating to an application under section�643 (as the case may be). (7)�A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of: (a)�an application to the Commission under section�643; and (b)�a proceeding in respect of an application under section�643. (8)�Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include: (a)�legal and professional costs and disbursements; and (b)�expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and (c)�expenses of witnesses. (9)�If a schedule of costs is prescribed for the purposes of subsection�(7), then, in awarding costs under this section, the Commission: (a)�is not limited to the items of expenditure appearing in the schedule; but (b)�if an item does appear in the schedule - must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule. (10)�For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section�643 in respect of which the Commission may make an order for costs: (a)�a proceeding for dismissal of an application under section�643 on the ground that the application is outside jurisdiction; (b)�conciliation proceedings under section�650; (c)�arbitration proceedings under section�652; (d)�an appeal to the Full Bench from an order of the Commission under section�654 or a costs order under section�658; (e)�a proceeding concerning an application for costs by one party in respect of another party’s application for costs. ” The Applicant’s case [5] Mr Kennedy provided a detailed chronology of the events associated with the applications confirming the dates outlined above and providing copies of the correspondence between the parties to this application [Exhibit Cash 1]. [6] He reaffirmed that at the time the original applications were filed on 29 March 2006 the applicant’s did not have legal representation and he stated they had relied on the information made available from the Registry of the Commission to proceed with their claim. Mr Kennedy stated that the information, in part, warns the parties that a cost order can be made in favour of the party at the discretion of the Commission. [7] On 7 June 2006 the solicitors acting on behalf of the respondent sent to each of the applicants the notice of the employer’s appearance and a motion to dismiss the application for want of jurisdiction. The accompanying letter stated that should the applicants not withdraw their applications the respondent would rely on the letter dated 7 June 2006 in support of an application for costs. [8] Mr Kennedy referred to the Direction issued by Senior Deputy President Acton on 19 June 2006 which sought that the respondent file submissions in relation to the issue of jurisdiction by 7 July 2006. He noted that the employers filed the outline and submissions in relation by the due date and subsequent to that date the notices of discontinuance were filed. [9] He submitted that that both applicants acted unreasonably in failing to discontinue the proceedings in circumstances where they were fully aware of the basis of the defence by the respondent. Further, a copy of correspondence between lawyers for the parties was provided to the Commission and Mr Kennedy stated it was apparent from their content that the applicants were aware of the basis on which the respondent was defending its claim that the applications were not within jurisdiction. [10] Mr Kennedy emphasized that the correspondence received by him on 22 June 2006 from the solicitors who then had taken over the conduct of the matter on behalf of the applicants, W�S�DeGaris and Co, solicitors of Mount Gambier, was important in establishing the time when the Notices of Discontinuance should have been lodged. He submitted that from 22 June 2006 the applicants had legal advice in relation to their proceedings. [11] The letter from the Bellinger’s lawyers stated that if $32,000 was paid to the applicants they would withdraw their proceedings in the Commission. Mr Kennedy stated that subsequently the applications were withdrawn without payment having been made and it was open to the Commission to infer that the applicants recognised the strong argument held by the respondents. [12] On 23�June 2006 the lawyers for the respondents wrote to the solicitors for the applicants indicating that if they withdrew their application by 5pm on 28 June 2006 an application for costs would not be pursued, but if they did not withdraw such an do an application would be pursued. Mr Kennedy submitted that by that date the Directions Order from Senior Deputy President Acton had been received and the respondents’ were required to file an outline of submissions and witness statements by 7 July 2006. He stated “That would entail further extensive conferencing between my clients and myself and then the preparation and filing of those documents.” [Transcript PN3] [13] He submitted that there could be no misunderstanding by the applicants’ or their solicitor of the basis of the respondents’ defence and that if the applicants did not discontinue their proceedings that such failure would be unreasonable and costs against them would be pursued. Mr Kennedy submitted that this was the same offer put directly to the applicants at the point when they did not have legal representation. [14] Following the lodging of submissions with the Commission by the required 7 July 2006 date, the respondents’ solicitor received a letter from the applicants’ solicitors which indicated that they had taken advice from Counsel and were prepared to withdraw and discontinue their proceedings provided the applicants agree to the proceeding being discontinued with each party bearing their own costs. Mr Kennedy emphasized that this offer was made after his client was required to file the outline document and the affidavits with the Commission. [15] On 3 August 2006 in immediate response to the applicants’ solicitors, the respondents’ Solicitors set out the history of the matter through the correspondence which had been exchanged, the offers previously made and stated that if the respondents’ costs to the 3�August 2006 were paid, then that would dispose of the matter. The costs were detailed as approximately $1700 for Mr Bellinger’s application and due to duplication some $800 for Mrs Bellinger’s application. [16] Mr Kennedy submitted that the applicants filed their Notice of Discontinuance on 11�August 2006, that the Commission on 16 August 2006 cancelled the proceedings and then relisted them after the request from the respondents for the hearing of the costs application previously foreshadowed. [17] He referred to s.658(1) and submitted that costs should be awarded because it should have been reasonably apparent to the applicants that they had no reasonable prospect of success in the first instance after reading the material supplied to the applicants with the application. If the Commission did not accept this argument he submitted that it was clearly apparent to the applicants that they had no reasonable prospect of success once they obtained legal advice from 22 June 2006. [18] In reference to s.658(2) Mr Kennedy submitted that the applicant acted unreasonably in failing to discontinue the proceedings. They were served with the respondents’ argument regarding the jurisdictional objection to the applications, they were provided offers on two occasions to withdraw their application with each party to bear their own costs and, as a final offer from the respondents that the costs incurred by them to 3 August 2006 be paid by the applicants. [19] The awarding of costs was, in Mr Kennedy’s submissions, consistent with s.658(3) of the Act because the applicants caused the employer to incur significant additional costs in that they had acted unreasonably in not agreeing to withdraw their applications prior to the respondents being required to file the documents required in the substantive proceedings before the Commission. [20] Mr Kennedy submitted that s.658(10)(a) specifically provides that the Commission has the discretion to order costs where applications are dismissed for want of jurisdiction and he stated that on the basis of the facts as shown in the correspondence between the parties, the Commission should exercise its jurisdiction in favour of the employers. He stated “that the correspondence between the parties which clearly sets out on three or four occasions the applicants were afforded the opportunity of withdrawing their applications with no penalty, but declined to take up that offer, despite having legal counsel’s advice.” [Transcript PN10] [21] Mr Kennedy submitted that even on the applicants’ own versions of the facts that the proceedings were always likely to fail. On this issue he referred to and relied on the decision in Aqua Assets Pty and Bottlick [ PR973504 ]. [22] In summary Mr Kennedy stated that the nature of the employment was known by the applicants prior to the commencement of their employment. They entered into a fixed term contract to develop a full knowledge of the operations of the respondent’s enterprise with the intention that the contract would be replaced with a share farming agreement between the employers. They were the only people employed. On all the facts the applications by the Bellinger’s were bound to fail and accordingly the employers were entitled to costs. The Respondent’s case [23] Mr Collopy generally agreed with the chronology of events outlined by the applicant. He agreed that the applicant’s had filed their applications prior to seeking legal advice. He stated that the applicants had lodged their applications on Form R18 which was the predecessor form prior to Form R27 which came into place arising from the introduction of the Workchoices legislation on 27 March 2006. [24] It should be noted that the grounds which are listed on the Forms for lodging applications under the pre-reform Act and the Workchoices amendments are the same and that the wording and layout are slightly changed. Section 170CE(1)(a) of the pre-reform Act pertains to applications regarding termination of employment on grounds that the termination was ‘harsh, unjust or unreasonable’. The relevant section of the new Act is s.643(1)(a). Section 659 of the new Act incorporates the discriminatory provisions which can be contested under unlawful termination of employment and which were previously found in s.170CK, failure to notify Centrelink is now s.660 and failure to give notice is now s.661. [25] Mr Collopy noted that where applications for relief from termination of employment alleged that the grounds of the termination were unlawful, an employee was not barred from lodging an application by s.638 of the Act which refers to circumstances where the employer employs less than 100 employees, where the contract is of a specified period of time or where the probationary period had not been completed. [26] Mr Collopy submitted that pursuant to s.659 of the Act the Commission had jurisdiction hear an application for unlawful termination of employment as the applicants had lodged their applications on grounds that the terminations were harsh, unjust and unreasonable and on the grounds that they were unlawful on the basis of discrimination or other prohibited reasons. [27] He referred to the facts he said were established through the copies of the correspondence between the parties tabled before the Commission. He agreed that at least by 22 June 2006, the Bellinger’s had engaged Mr W DeGaris, Solicitors in Mount Gambier, to advise them in relation to their applications. Mr Collopy stated that the solicitor’s firm had sought the advice of Counsel and referred to the letter from DeGaris solicitors to the respondents’ representative dated 1 August 2006. [28] In large part, and it is worth noting since it is relied upon during both parties submissions’, the letter states: “ Please note that we have taken advice from counsel (unfortunately quite late in arriving) in relation to the AIRC proceedings this client acted on his own account without legal advice. Could you please note that both Mr and Mrs Bellinger are prepared to withdraw and discontinue their proceedings in the AIRC provided you agree that the proceedings can be discontinued and dismissed without any Order as to cost. These proceedings should properly be brought and prosecuted in the Magistrates Court in Hamilton and our client intends to proceed for breach of Contract against your client. No doubt your client will counterclaim in those proceedings in due course. In the meantime, we would be obliged if you could obtain your client’s instructions so that we may proceed to discontinue the AIRC proceedings of both Jamie and Marianne Bellinger. ” [Exhibit Cash 1] [29] Mr Collopy then referred to the response from the respondent’s lawyers dated 3 August 2006. [Ibid] He agreed with the submissions by Mr Kennedy regarding the correspondence but noted that the offer by the applicants to not proceed with their applications on the basis of each party paying their costs was rejected. Instead the respondents Solicitors replied “Our client’s instructions are to proceed in the AIRC for an order for costs against each of your clients unless our costs to date (as detailed in the enclosed copy Tax Invoices) are paid to this office by way of bank cheque for 5.00 PM no Friday 18 August 2006. After that date we would intend to brief Counsel to appear at the AIRC which will significantly increase the costs to which your clients are exposed.” [Ibid] [30] The final correspondence between the parties occurred in a letter dated 11�August 2006 [Exhibit Bellinger 1] from the Bellingers’ Solicitors. Mr Collopy emphasized the contents of the letter in so far as a chronology of correspondence regarding the matters was written down, the principles to be applied by the Commission in determining applications for costs were noted, including the decisions in the Bottlik and Fullerton cases, and it was stated that the contents of the letter would be relied on in the Commission if the application for costs proceeded. [31] Mr Collopy submitted that it was not unreasonable for the applicant’s to await receipt of advice from counsel before making a decision as to whether to proceed or discontinue their applications. He stated that the correspondence showed that the advice was received on or about, or at least by 1 August 2006 and the proceedings were discontinued 10 days later on 11�August 2006. He submitted that there was no evidence before the Commission as to the merits of either the applicants’ application or the respondent’s defence save for the two pages outlining the respondent’s submission regarding jurisdiction and a similarly brief statement of Mr Cash filed by the respondent pursuant to the Directions Order. [32] He noted that attached to Mr Cash’s statement dated 4�July is a document headed, “Jamie and Marianne Bellinger Proposals for Breda and Malcolm Cash”. He stated that the document included sub sections regarding the employment Contract and other matters that it was not signed and did not purport to be the Contract of employment. [33] Mr Collopy stated that the applicants filed their applications to protect their position and they had the specified 21 days within which to do so. He stated also that the terms and conditions of their employment were not clear to the applicants as the documents they had relating to their employment were not signed and were headed as a ‘proposal’. He referred to the documents as being identical to those which had been lodged with the Commission appended to the Affidavit of Mr Cash. In such circumstances he stated it was not unreasonable for the applicants to file applications to protect their position and to do so prior to seeking legal advice. [34] Mr Collopy emphasized that there is no evidence before the Commission as to whether the applicants had any grounds for succeeding for unlawful termination and that the applications did not specifically identify the discriminatory conduct. He submitted that there was no jurisdictional barrier to the applicants proceeding on these grounds which fall within unlawful termination and not unfair termination of employment applications for which are bound by s.638 of the Act. [35] He referred to the decision of Vice President Lawler in Fullerton and Gimbala Pty Ltd t/as Coolibah Hotel [ PR973283 ] as support for the argument that even if the primary grounds required to be met under sections 658(1), (2) and (3) are all made out and met, there was still discretion for the Commission to award costs. Mr Collopy stated that the facts in the extant matter were similar to Fullerton’s case in that there were negotiations after the applicants instructed their solicitors to make an offer including an offer to dispose of the matter in total. [see Transcript PN23 – 26] [36] Mr Collopy confirmed Mr Kennedy’s submission that there was at the time the foreshadowed litigation in the Magistrates’ court in relation to breach of contract. He stated that the letter on behalf of the applicants dated 22 June 2006 sought to resolve the matter on both jurisdictions and as such was directly referable to the decision by His Honour. He referred in particular to the following extract of the decision; “ The negotiations between the parties were not confined to the merits of Ms Fullerton’s application for costs in the Commission. They extended to and indeed focused on the causes of action that Ms Fullerton may have against Mr Barwick in the courts. It is obvious that the real point of the negotiations was not the possibility that Ms Fullerton might succeed in her application for costs in the Commission but rather the prospect that she might succeed in a civil claim in a court. It is tolerably clear from the evidence as to the course of the negotiations between the parties that Ms Fullerton did not intend to persist with her costs application in the Commission but was quite reasonably seeking to finalise all of the issues that arose out of relevant events in the primary proceeding. The critical offer of settlement on which litigators arise is confined to Ms Fullerton’s costs application in the Commission and did not encompass Ms Fullerton’s broader claims. While it was perfectly open to litigators to proceed in this fashion in all the circumstances it was not manifestly unreasonable for Ms Fullerton to persist for a short time in seeking to resolve, finally all of the issues that arose between the parties particularly bearing in mind that the time, trouble and expense involved in pursuing a civil claim for such a small amount of damages rendered that option unattractive. ” [37] Mr Collopy submitted that such reasoning should be applied in this case but conceded that the quantum sought in Fullerton’s case was less than that pursued in this matter. [38] He submitted that even if the Commission was satisfied that the primary grounds in s.658(1), (2) and (3) had been met, that the circumstances overall should convince the Commission to exercise the discretion by refusing costs. [39] It was further put for the applicants that there was good reason for the instructing solicitors to seek the advice of counsel given the very substantial amendments made to the Act that came into effect on 27�March 2006. Mr Collopy submitted that once that advice was received there was no delay or no unreasonable delay by the applicants. In summary that advice was received around 1 August 2006 at which time an offer was made and the applications ultimately discontinued on 11 August 2006. [40] With reference to the Bottlik case Mr Collopy agreed that it was accepted that where, on the applicant’s own version of events and of the facts it is clear that the proceeding must fail, the applicant should not proceed. He submitted that this situation did not apply to this case. These applications did not proceed as far as a conciliation conference before the applications were discontinued. [41] He also emphasized that in the Bottlik case the matter was arbitrated and the facts were that the applicant’s had rejected an amount offered by the employer and was not awarded any amount by the Commission and the application for costs was denied. He added s.658(5) was not applicable to this matter as it did not proceed to conciliation and no certificate had been issued by the Commission. [42] Mr Collopy submitted that should the Commission award costs the costs sought by the applicant in this matter are excessive and complied on the basis of solicitor/client costs rather than in accordance with schedule 7 of of the Act. He submitted that the Commission should hear further submissions prior to fixing a quantum for costs. The Applicant’s reply [43] Mr Kennedy submitted that the applicants discontinued their applications after consideration of any grounds they may have continued for application. They had legal advice including advice from Counsel including whether they had grounds to pursue claims for either or both unlawful dismissal or unfair dismissal. Following that advice the applicants’ filed their Notices of Discontinuance. He stated that it could not now be argued that there may have been some remedy open to the applicants through the Commission or that the facts were not clear to them. [44] He referred to the following excerpt from the letter dated 1 August from W S DeGaris; “These proceedings should properly be brought and prosecuted in the Magistrates’ Court in Hamilton and our client intends to proceed with the breach of contract against your client. No doubt your client - - -.” [45] Mr Kennedy submitted the letter showed that this Commission did not have jurisdiction and the proper jurisdiction for the matters between the Bellingers’ and the Cashs’ was the Magistrates’ Court. He stated that after obtaining advice from counsel regarding the reasonableness of their case, and various offers being made to settle the matter of costs, the applicants did not discontinue their proceedings until after their previous employer was required to prepare and lodge material in accordance with Directions from the Commission. [46] In summary Mr Kennedy submitted “Our client had no knowledge at that time that the applicants were unable to respond because they were apparently obtaining counsel’s advice. It has been suggested that our client should bear a cost penalty because – for having that work performed because the applicant was reasonably awaiting the advice of counsel. We say that the issue is so clear cut that that advice wasn’t necessary.” [Transcript PN40] [47] In relation to the amount of the costs sought, Mr Kennedy submitted that the Commission can order costs that they consider reasonable and is not bound to award costs under schedule 7 of the Act. He stated that the itemisation of the account tendered had been prepared in relation to the Practitioner’s Remuneration Order. Conclusion [48] The first issue which is addressed relates to the applications lodged by the applicants’. It has been urged on the Commission, that it was apparent to the applicants’ that at the time they commenced these proceedings and were provided with information from the Registry, that their applications did not meet the pre-requisite that the employer must have at least 100 employees. This prerequisite exists through the terms of s.643(10) and Mr Kennedy’s submission on this issue is correct. [49] However this particular section of the Act does not determine the applications before the Commission and is not fatal to them. The scope of the two applications by Mr and Mrs Bellinger was not confined to s.643(1)(a) which pertains to an application alleging that the termination of employment was harsh, unjust and unreasonable. [50] The applications made by the Bellingers’ encompassed not only s.643(1)(a) but also s.643(1)(b) which relates to alleged unlawful dismissal. Applications of this nature are not constrained by the limitations imposed through s.638. It is uncontested that the employer did not have 100 employees which would rule out an application pursuant to s.643(1)(a) even if arguments regarding the veracity or accuracy of the actual document recording the terms and conditions of employment remained. [51] Even if the applications has been lodged pursuant to s.643(1)(a) only, the failure to discontinue a proceeding because an applicant receives information from the Registry which provides information which appears to rule out an application, cannot mean that an applicant has been unreasonable in not discontinuing an application. True it is that the written information is accurate but it cannot be that an applicant must make a decision on whether to proceed with an application on the basis of the written information provided by the Registry. [52] An applicant cannot be penalised because a delay occurs, particularly where that delay is not substantial, due to an applicant seeking independent legal advice regarding their applications in light of the information provided by the Registry and on the basis of the facts of their case. That is what occurred in this case and it would be wrong, in my view, to deny any person whose employment has been terminated, the opportunity to seek independent legal advice on the information which has been provided by the Registry prior to making a decision whether or not to proceed with the application. [53] In this instance, the applicants were provided information by the Registry on 8 June 2006 and received a copy of the Directions Orders on 19 June 2006 regarding the required filing of written submissions prior to the hearing of their case. It is during this period that the applicants sought legal advice regarding their applications and that legal representation was secured by 22 June 2006 as shown by the letter from Mr De Garis to the respondents’ Solicitors. [54] The Direction Orders issued by Senior Deputy President Acton on 19 June 2006 directed the respondent (the Cashs’) who had objected to the applications on jurisdictional grounds, to lodge their written submissions by 7 July 2006. The respondent complied with the directions. [55] On 22 June 2006 De Garis Lawyers, by letter marked ‘Urgent’ advised the respondent’s Solicitors that they now acted for the applicants’ and making a claim on the ex-employers to settle the dispute between the parties. From 22 June 2006 the respondents were aware that the applicants were considering withdrawing their applications albeit on agreement to a substantial financial settlement. [56] What follows from 22 June 2006 to 11 August 2006 is a series of correspondence between the parties which constitutes evidence of the ongoing nature of the negotiations with offers initiated by both parties. [57] In lieu of the applications being settled the respondent met its requirements to lodge written submissions by 7 July 2006. On this issue in particular the applicant for costs states that they have been put to expense not imposed on the Bellingers’. In lieu of settlement being reached the applicant’s had a requirement to lodge the written submissions on 21 July 2006 in accordance with the Direction Orders. The applicants did not comply with this Order. [58] At this time the applicants’ lawyers had not been provided with the advice they had sought from legal Counsel regarding the applications by the Bellingers’. It was not, in my view, unreasonable for the applicants to await that advice. I note however that the advice from Counsel was not received by the applicants’ lawyers until well after the due date for the lodging of written submissions. I am unable to find written notification on file that an extension was sought. [59] From 21 July 2006 the parties were aware that the hearing regarding the Bellingers’ applications was listed for hearing in Warrnambool on 29 August 2006. Some time after 3�August 2006 the applicants decided to discontinue their applications. The letter from their lawyers dated 11 August 2006 to the respondents’ Solicitor and the Commission must be seen as the final element in the ongoing attempts between the parties to settle the matter with concurrent notice of the discontinuance of the applications. [60] Having received the legal advice there is a responsibility on an applicant who does not intend to proceed with their application to take the appropriate action to withdraw the application in order that the previous employer is not financially disadvantaged through engaging a lawyer to act on their behalf or taking time away from their business in order to brief legal counsel and provide statements and any other documentation which may relate to the case brought against them. [61] The final offer regarding settlement of the dispute between the Bellingers’ and the Cashs’ was put by the Cashs’ on 3 August 2006. The applicants were given until 18 August 2006 to agree to the offer which had been made. The rejection of this offer was provided in writing to the respondents’ representative and the Commission, together with notices of Discontinuance by both applicants on 11 August 2006. The refusal of the offer and the discontinuance of the applications were enacted 7 days prior to the date by which final settlement was sought. Those circumstances further militate against awarding costs against the applicants. [62] On the basis of the facts of this case I do not accept that the applicants acted unreasonably in not withdrawing their applications prior to the date they did or that it was unreasonable for them to believe that on the facts apparent to them they did not have a chance of success. [63] For completeness regarding the issues to be considered by the applicants regarding the merit of their applications, it should also be noted that the document which the respondent purports to be the Contract of Employment is not signed by the parties and is titled ‘draft proposals’. Of course in an application for unfair dismissal pursuant to s.643(1)(a) the employer having less than 100 employees would mean the application could not be heard. [64] Obviously all the issues associated with the applications by the Bellinger’s from the time they were lodged through to the time they were withdrawn and through to and including the hearing of the application for costs must be considered in this matter. It is not as straight forward as it would appear perhaps at first glance. The actions associated with the extant applications are further complicated because they do not stand alone but are being considered concurrent with applications in another jurisdiction. [65] The Commission is bound to consider whether the parties in matters regarding unfair dismissal are given a ‘fair go’. [see s.635(2)] This consideration is not limited to the employee only and it must also be considered whether the employer has been accorded a fair go. The respondents in this case have been put to the additional expense of preparing the written submissions lodged with the Commission on 6 July 2006. [66] I make no judgement on the adequacy or quality of the submissions but can agree with the submission by Mr Collopy that the submissions are not extensive. I repeat that the timing of the provision of legal advice to the applicants has in my view not assisted but, on balance, I do not believe that the costs associated either with the lodgement of the written submissions, or the costs associated with seeking to negotiate a settlement of the applications by the Bellingers’ is sufficient reason to exercise my discretion to award costs in favour of the Cashs’. [67] A decision of Commissioner Larkin in Aqua Assets Pty Ltd and P. Bottlik [ PR973504 ] considers the changes regarding costs applications which came into effect on 27 March 2006 arising from the Workchoices amendments. I do not repeat the explanation of the variations save that I agree with the statements of the Commissioner. [68] In relation to the decision by Vice President Lawler in Fullerton’s case [ PR973283 ] I accept that there are parallels with the facts of this case save for the very important fact that in this matter there have been no proceedings before the Commission other than the hearing of the costs application. The applicants have not had the benefit of a conciliation conference through which process they would have received the views of a member of the Commission regarding the merits of their applications. In such circumstances it was not unreasonable to await Counsel’s advice regarding their applications. [69] The comments by His Honour regarding the civil proceedings being conducted parallel to the proceedings in the Commission are on point and I refer to and rely on his decision on that issue [ibid PN13]. [70] For the reasons above I do not grant the application to exercise the discretion available to award costs for MG and BM Cash against J Bellinger in application U2006/4294 and M Bellinger in application U2006/4297. BY THE COMMISSION: COMMISSIONER Appearances: N. Kennedy for the MG & BM Cash. J. Collopy for J & M Bellinger Hearing details: 2006. Warrnambool: August 30. Printed by authority of the Commonwealth Government Printer <Price code C>