Solicitor Ammi Burke has been ordered to pay most of the legal costs incurred by the Workplace Relations Commission (WRC) and her former employer in successfully defending against her challenge to a rejection of her unfair dismissal claim.
Ms Justice Marguerite Bolger said the court “can and should mark its disapproval of how the applicant chose to conduct herself during the proceedings”.
She ordered Ms Burke to pay the bulk of the WRC and law firm Arthur Cox’s legal fees on a “legal practitioner and client basis”, which covers all reasonable costs incurred, even those that were not absolutely necessary.
This type of order is “highly unusual” and generally limited to circumstances where the court considers it necessary to indicate its disapproval of a party’s conduct, said the judge.
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This order excludes the expense of the adjourned costs hearing last week and any costs relating to the engagement of a stenographer and transcript of the hearing.
Ms Burke had complained about Arthur Cox’s hiring of a stenographer service (which she described as a “private arrangement”) and the court’s use of the transcripts in producing judgments in the case.
That the court had received a copy of the transcript when Ms Burke had not, came as a surprise to Ms Justice Bolger during a costs hearing last July. She directed that Ms Burke must be furnished with a copy and adjourned that hearing to October 11th.
The court accepted a later explanation that the stenographer had furnished the transcripts to the court without instructions from Arthur Cox or the WRC. Ms Justice Bolger did not agree with Ms Burke’s contention that the court’s receiving and relying upon the transcripts impugns its judgment.
The judge said she was “forced to terminate” the resumed costs hearing last week and to finalise her decision based on written submissions which she had repeatedly warned Ms Burke would occur if she sought to shout over others in court.
“It is a matter of regret that the applicant, yet again, chose to conduct herself in an unacceptable way before the court,” the judge added.
The judge said she has made “no finding critical of the institution of these proceedings”, and she was satisfied there was an “arguable case” for Ms Burke’s requested orders.
However, Ms Burke’s conduct on May 4th, which led to the judge dismissing her claim mid-hearing, was a “blatant abuse of process” that rendered it impossible to continue hearing the case, the judge said.
Ms Burke had asked the court to depart from the usual practice of making the losing side pay the costs, by directing the parties to pay their own costs. She submitted her proceedings raised issues of “manifest public importance” regarding the WRC’s operations.
The court was not persuaded she rendered a public service in instituting the proceedings or that her failed application seeking for the judge to recuse herself was bona fide and reasonable.
The judge reiterated her finding that Ms Burke’s repeated accusations of lying against opposing council were “devoid of any merit”, yet Ms Burke and members of her family present in court “chose to loudly repeat” the accusations.
Ms Burke should discharge the costs incurred by the WRC and Arthur Cox save for those related to the October 11th hearing and the stenographer, the judge ruled.
Ms Burke’s WRC complaint alleging she was unfairly dismissed from Arthur Cox in late 2019 was thrown out due to persistent interruptions from the Burke family.
Arthur Cox denied she was unfairly dismissed.
