Burke v An Adjudication Officer & Anor (Costs)

Factual and Procedural Background

This opinion concerns judicial review proceedings initiated by the Applicant challenging procedural rulings made by an adjudication officer in the context of an unfair dismissal claim. The judicial review was dismissed in its entirety by the High Court. The proceedings included serious allegations made by the Applicant against the adjudication officer and the Workplace Relations Commission, which were withdrawn on the second day of the hearing. Following the principal judgment, the parties engaged in written and oral submissions regarding costs, culminating in this costs determination.

Legal Issues Presented

1. Whether the Applicant’s conduct in making unfounded allegations against the adjudication officer warranted a costs order against her despite the dismissal of her judicial review.
2. Whether the Applicant’s asserted impecuniosity should influence the court’s discretion on costs.
3. Whether the judicial review proceedings raised issues of general public importance sufficient to justify departure from the usual costs rule.
4. The appropriate apportionment of costs between the Workplace Relations Commission and the notice party employer in light of their respective participation in the proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the Applicant’s conduct throughout the proceedings, focusing on her serious and unfounded allegations of bias and impropriety against the adjudication officer and the Workplace Relations Commission. These allegations prolonged the hearing and increased costs for the respondents. The court rejected the Applicant’s contention that she did not allege bias, noting that her pleadings and oral submissions clearly accused the adjudication officer of partiality favoring her former employer.

The court considered the Applicant’s claimed impecuniosity but held that financial hardship is not a recognized factor under the Legal Services Regulation Act 2015 to avoid costs liability. The court emphasized the principle that costs generally follow the event to prevent unsuccessful litigants from imposing unjust financial burdens on successful parties.

The court acknowledged that the judicial review raised issues of general public importance, particularly concerning the Supreme Court’s decision in Zalewski and subsequent legislative amendments affecting part-heard unfair dismissal claims. This warranted a partial departure from the normal costs rule.

However, because the proceedings also included unrelated procedural challenges and unfounded allegations, the court adopted a nuanced approach. It apportioned costs between the Workplace Relations Commission and the notice party employer, reflecting their respective roles and the nature of the issues they addressed. The Workplace Relations Commission was awarded one-third of its costs, reflecting its limited participation and the public importance of the issues it addressed. The notice party employer was awarded two-thirds of its costs, reflecting its primary role in defending the procedural and other substantive challenges.

The court also addressed the necessity of costs related to transcripts and multiple hearings, finding these reasonable given the circumstances.

Holding and Implications

The court ORDERED that the Applicant pay one-third of the Workplace Relations Commission’s measured costs and two-thirds of the notice party employer’s measured costs, including reserved costs, costs of written submissions, two counsel fees, and stenography fees for the main hearing day. Costs related to the costs hearings were also ordered against the Applicant, limited to the first hearing date.

The decision balances the public interest in allowing judicial review on important legal issues with the need to deter unmeritorious and costly litigation conduct. The Applicant’s withdrawal of serious allegations mitigated but did not eliminate her liability for the additional costs incurred. The ruling underscores that impecuniosity does not exempt litigants from costs liability under the current statutory framework and that costs orders may be apportioned to reflect the nature of issues and parties’ involvement.

No new precedent was established beyond the application of existing principles to the facts of this case. The ruling clarifies the court’s approach to costs in judicial review proceedings related to unfair dismissal claims, particularly where public importance and litigant conduct intersect.