CLARA TAI SAW LAN v. KURNIA INSURANS (MALAYSIA) BHD
COURT OF APPEAL, KUALA LUMPUR
GOPAL SRI RAM, JCA; HAIDAR MOHD NOOR, JCA; ABDUL HAMID MOHAMAD, JCA
CIVIL APPEAL NO: W-02-928-1999
 2 CLJ 1
LABOUR LAW: Industrial Court – Decision – Reinstatement and payment of back wages, order of – Refusal by Company to comply – Whether an unfair Labour practice
ADMINISTRATIVE LAW: Remedies – Certiorari, application for – Whether Industrial Court erred in ordering reinstatement unders. 56 of Industrial Relations Act 1967
The respondent, Kurnia Insurans, dismissed the appellant, Clara Tai (ie, the first dismissal) alleging that she was guilty of conduct prejudicial to the company’s interests. The matter proceeded to the Industrial Court (the first complaint) which decided, inter alia, that the appellant be reinstated to her last post on a designated date, and be paid back wages within a week after reporting to work (ie, the first award). The respondent instead gave the appellant a letter (‘the said letter’) stating that she would not be reinstated. The appellant then forwarded a complaint of non-compliance (ie, the second complaint) under s. 56 of the Industrial Relations Act 1967(‘the Act’) to the Industrial Court which ordered the respondent to comply with the first award. The respondent later informed the appellant that it was unable to reinstate the claimant to her former post as it had already been filled. However, she was told to report to work. She refused and the company proceeded to terminate her services again (ie, the second dismissal).
The appellant forwarded the matter again under s. 56 of the Actto the Industrial Court where the tribunal ordered the respondent to reinstate her (ie, the second award). The respondent applied to the High Court for a certiorari to quash the said award. In granting the application, the learned judge held that the respondent had correctly terminated the appellant’s services as her refusal to report for work was tantamount to insubordination. It was also held that this amounted to a fresh act of misconduct and therefore the appellant’s only course of action should be by commencing a fresh action under s. 20 of the Actand not s. 56.
This was an appeal against the said decision and the main issue was whether the respondent had complied with the terms of the first award.
Held:Per Abdul Hamid Mohamad JCA
 The respondent did not intend to fulfil the terms of the first award. The said letter was the clearest form of non-compliance of the said award. Firstly, the appellant was informed that she would not be reinstated only two days before the due date mentioned in the first award, and secondly, that the said letter was dated one day prior to the expiration of the period given for due compliance, and thirdly, that the appellant was not paid backwages.
 It was clearly within the Industrial Court’s discretion to hand down the second award as provided for under s. 56(1) of the Act.
[Appeal allowed with costs.]
[Bahasa MalaysiaTranslation Of Headnotes]
Pihak responden, Kurnia Insurans, telah menamatkan perkhidmatan perayu, Clara Tai (pembuangan kerja pertama), dengan mendakwa bahawa beliau bersalah kerana berkelakuan prejudis terhadap kepentingan syarikat. Hal ini dihadapkan ke Mahkamah Perusahaan (aduan pertama) di mana diputuskan bahawa, antara lain, responden mesti mengembalikan semula kerja perayu kepada jawatannya yang terakhir pada tarikh berkenaan, dan dibayar gaji kebelakangan dalam masa seminggu selepas melaporkan diri di tempat kerjanya (award pertama). Pihak responden sebaliknya telah memberi perayu sepucuk surat (‘surat berkenaan’) yang mengatakan bahawa beliau tidak akan diambilsemula bekerja. Perayu kemudiannya telah membuat aduan ketidakpatuhan (aduan kedua) di bawah s. 56 Akta Perhubungan Perusahaan 1967(‘Akta’) ke Mahkamah Perusahaan yang mengarahkan responden mematuhi award pertama. Responden sejurus itu memberitahu perayu bahawa ia tidak dapat mengembalikan jawatan asalnya semula kerana ia telah dipenuhi. Namun begitu, beliau diarah melaporkan diri untuk berkerja. Beliau enggan dan responden seterusnya memberhentikan pekerjaannya sekali lagi.
Perayu sekali menghadapkan perkara ini di bawah s. 56 Akta ke Mahkamah Perusahaandi mana tribunal tersebut mengarahkan responden untuk mengembalikan kerjanya (award kedua). Responden telah membuat permohonan ke Mahkamah Tinggi untuk suatu perintah certiorari untuk membatalkan award berkenaan. Dalam membenarkan permohonan tersebut, hakim bijaksana memutuskan bahawa responden telah memberhentikan perkhidmatan perayu dengan betul kerana keengganannya dianggap sebagai ingkar perintah. Telah juga dinyatakan bahawa ini sama seperti suatu kesalahan yang baharu dan oleh itu tindakan seharusnya yang terbuka kepada perayu adalah dengan memulakan suatu perbicaraan yang baharu di bawah s. 20Akta dan bukan s. 56.
Ini adalah suatu rayuan terhadap keputusan tersebut dan isu utama adalah samada responden telah mematuhi terma-terma award pertama.
Diputuskan: Oleh Abdul Hamid Mohamad HMR
 Responden tidak berniat untuk mematuhi terma-terma award pertama. Surat berkenaan merupakan bentuk paling jelas ketidakpatuhan award berkenaan. Pertamanya perayu hanya diberitahu bahawa beliau tidak akan diambilsemula bekerja hanya dua hari sebelum tarikh kuatkuasa yang disebut dalam award pertama, keduanya surat berkenaan bertarikh sehari sebelum berakhirnya tempoh yang diberi untuk kepatuhan, dan ketiganya perayu tidak dibayar gaji kebelakangan.
 Sememangnya, adalah di bawah budibicara Mahkamah Perusahaan untuk menurunkan award kedua seperti yang diperuntukkan di bawah s. 56(1)Akta.
[Rayuan dibenarkan dengan kos.]
Case(s) referred to:
Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd.  1 CLJ 2;  CLJ 45 (Rep)
Chartered Bank, Kuching v. Kuching Bank Employees’ Union [1965-67] MLLR 28 (foll)
Council of Civil Service Unions & Ors v. Minister for the Civil Service  AC 374 (refd)
Dunlop Industries Employees Union v. Dunlop Malaysian Industries Bhd & Anor  1 CLJ 232;  CLJ 86 (Rep) (foll)
Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor  4 CLJ 687
Kurnia Insurans (malaysia) Bhd. v. Clara Tai Saw Lan  1 ILR 874
Ng Hee Thoong v. Public Bank Bhd  1 CLJ 609 (dist)
R Rama Chandran v. Industrial Court Of Malaysia & Anor  1 CLJ 147
Sangram Singh v. Election Tribunal AIR  SC 425 (foll)
Syarikat Kenderaan Kelantan Melayu Bhd v. Transport Workers’ Union  2 CLJ 748 (refd)
Legislation referred to:
Industrial Relations Act 1967, ss. 20, 33A, 33B(2), 56(1)
Rules of the High Court 1980, O. 3 r. 6, O. 18 r. 19
For the appellant – P Kuppusamy (P Thavaselvi with him); M/s P Kuppusamy & Co
For the respondent – John SN Fam; M/s SN FamReported by Bhawani Mano
Abdul Hamid Mohamad JCA:
The appellant was employed by the respondent as senior manager (claims) since 2 May 1992. By a letter dated 9 June 1995, the appellant was dismissed by the respondent. That letter reads:
Re: MANAGEMENT DECISION – DOMESTIC INQUIRY
Reference to the above, we regret to inform you that the Domestic Inquiry Committee, after going through the necessary inquiries, has found you guilty of conduct prejudicial to the interests of the Company.
For the reason aforesaid, we now terminate your service with us with immediate effect.
The appellant then made a representation to the Director General of Industrial Relations (DGIR) that she had been dismissed without just cause or excuse (“the first representation”).
As the DGIR could not resolve the dispute, the Minister of Human Resources referred the dispute to the Industrial Court. The reference was made on 22 June 1996 and was registered as Industrial Court case No. 4/4-329/96 (“the first complaint”).
On 22 November 1997, the Industrial Court handed down the award – Award No. 561 of 1997 (“the first award”). The court made the following orders:
1. That the Claimant be reinstated to her former position in the Company within one month from the date hereof without loss of allowance, seniority and service benefits.
2. Backwages – In the circumstances of this case the Company is entitled to a remission for reason of delay by the Claimant. The hearing should have proceeded on December 31, 1996 but for the Claimant who had requested for an adjournment and was unable to proceed. It would be inequitable for the Company to compensate the Claimant for the delay which was not the Company’s fault.
Therefore the Claimant is awarded back wages from June 9, 1995 to December 31, 1996.
3. The back wages or other payments are to be paid, less Income Tax deduction and Employees Provident Fund contribution, if any, to the Claimant within one week after the Claimant has complied with clause (1) of this award by reporting for duty.
When the appellant reported for duty on 22 December 1997, she was handed a letter dated 20 December 1997. That letter was not exhibited but as stated by the President of the Industrial Court in the court’s Award No. 252 of 1999 handed down on 22 May 1999 (“the second award”) and which was not in dispute, the gist of the letter was that the company was “in the process of appealing to the High Court against the decision of the Industrial Court and that it was not reinstating the claimant.”
On 3 January 1998, the respondent applied in the High Court for an order of certiorari to quash the first award. The application was dismissed by the High Court on 22 September 1998.
On 17 December 1998 the appellant made a complaint to the Industrial Court under s. 56(1) of the Industrial Relations Act 1967(“the Act”) for non-compliance by the respondent of the first award (“the second complaint”).
On 5 February 1999 the respondent wrote to the appellant. The letter reads:
INDUSTRIAL COURT AWARD NO. 561 OF 1997 BETWEEN KURNIA
INSURANS (M) BERHAD AND CLARA TAI SAW LAN
We refer to the above matter and the various negotiations between your Solicitors and our Solicitors to resolve the above matter on a without prejudice basis.
As the parties are unable to reach an amicable resolution of the above matter until recently, we therefore take the relevant steps to comply with the Industrial Court Award abovementioned.
Please be informed that in compliance with the said Award, Kurnia Insurans (M) Berhad (the Company) shall:
1) Reinstate you with effect from 9 of February 1999,
2) That upon you reporting for duty, the relevant back wages net, of EPF contributions and personal tax payable to the Inland Revenue, in accordance to the said Award from 9 June 1995 to 31 December 1996 shall be paid to you within one (1) week thereof.
Be that as it may, we regret to inform you that your last position as Senior Manager Claims is no longer vacant in the Company as the same has been filled by suitably qualified personnel sometime after your dismissal.
In the circumstances, you are to report on the 9 of February 1999 and liaise with the undersigned.
The appellant responded by letter dated 8 February 1999 as follows:
INDUSTRIAL COURT AWARD NO. 561 OF 1997
Reference is made to the Company’s letter dated 5th February, 1999 in respect of the above matter.
I note from the letter that the Company has not complied with the abovementioned Award in the following respects:
(a) I have not been reinstated to my former post as ordered by the Industrial Court; and
(b) The Company’s computation of arrears of salary is incorrect.
As the Company has refused to reinstate me to my former post, I am unable to comply with the Company’s request to report for duty to some new post.”
On 24 February 1999 the respondent wrote to the appellant:
INDUSTRIAL COURT AWARD NO. 561 OF 1997 BETWEEN KURNIA
INSURANS (M) BERHAD AND CLARA TAI SAW LAN
We refer to the above and your letter dated 8 February 1999 and noted the content thereof.
Please be informed that your failure or refusal to report for duty premised upon the content of your letter is unjustifiable, wrongful and without any basis and amounted to a deliberate action on your part to frustrate the due compliance of the Industrial Court Award by us after the recent breakdown of the negotiation toward an amicable resolution of the above matter between yourself and us on a without prejudice basis.
Further, your refusal and failure to report for duty amounted to a breach of the said Award and the letter of appointment dated 10 April 1992 without any justification.
In the above circumstances, we regret to inform you that your service is hereby terminated with immediate effect for failing and refusing to report for duty without justification after receiving your letter dated 8 February 1999.
Please be informed that you are to attend at our office and contact the undersigned within seven (7) days from the date of receipt of this letter for the settlement of the backwages in accordance to the said Award less EPF contribution and personal tax payable to the Inland Revenue.
On 11 March 1999, the appellant made representation to the DGIR (“the second representation”) that she had been dismissed without just cause or excuse. The respondent was informed of the representation to the DGIR by letter from the appellant’s solicitors dated 24 March 1999. The said representation is still pending in the Industrial Relations Department.
The Industrial Court heard the second complaint and handed down the second award on 22 May 1999.
The court, in its award found:
The Court could only conclude that the Company had never had the intention to have the Complainant (appellant – added) back in the Company (respondent – added) less still of reinstating her to her former position.
The court held that the respondent had not complied with the first award and ordered the respondent to comply within 14 days from the date of service of the second award on the respondent.
The respondent again went to the High Court and applied for an order of certiorari. On 27 October 1999, the High Court allowed the respondent’s application. The learned judge held that the effect of the order for reinstatement was to restore the relationship of master and servant ie, that the appellant was and continued to be an employee of the respondent. The reinstatement invested in the respondent with rights over the appellant including the power of disciplinary action, including dismissal for any fresh misconduct. An employee is bound to obey a lawful command of an employer “and failure to do so is misconduct that justifies summary dismissal.” The learned judge also held that the respondent’s letter dated 5 February 1999 was such a lawful command. The appellant must comply whether she agreed with it or not. Her failure to do so was a clear insubordination. That was a fresh event subsequent to the first award. She could contend that the termination was wrongful but she had to do so by way of a fresh proceeding under s. 20(1) of the Act, not under s. 56(1). The learned judge went on to say:
6. A new legal regime had replaced the state of affairs created by the first award and hence it was a new termination that attracted a new recourse for redress under the Act. Therefore, a new remedy for a new dismissal founded on misconduct after the first award, cannot be given by a different authority (ie, the Industrial Court) under the guise of non-compliance of the first award given for a dismissal that arose for a different misconduct. By doing so, the Industrial Court had acted ultra vires the Act by usurping the powers of the Minister and without a reference from the Minister which reference was the source of the jurisdiction of the Industrial Court for a claim of wrongful dismissal for a workman under s. 20. The legality or otherwise of the second termination was a matter for separate and independent proceedings
following upon the complaint made by the 1st Respondent (Appellant – added). The first award so far as it concerned the reinstatement had been superseded or spent by the 2nd termination.
The learned judge also held that the appellant “had elected and accepted” the respondent’s letter dated 24 February 1999 as dismissal without just cause or excuse and made a complaint to the DGIR under s. 20 of the Act. Having done so, she was estopped from complaining of non-compliance of the first award. The learned judge also held that the order for reinstatement had become academic by reason of the second termination. Lastly, the learned judge took up the point that the appellant had not filed an affidavit in opposition to the substantive motion. In the absence of such an affidavit the appellant was “deemed to admit the averments of” the respondent.
The appellant appealed to this court.
The law regarding the jurisdiction of the High Court to issue an order of certiorari to quash an award of the Industrial Court is well settled in this country and need not be repeated. The learned judge in this case himself had referred to the judgment of my learned brother Gopal Sri Ram JCA, in Syarikat Kenderaan Kelantan Melayu Bhd v. Transport Workers’ Union 2 CLJ 748(CA). Another leading case in this country is of course the case of R Rama Chandran v. Industrial Court Of Malaysia & Anor 1 CLJ 147. In the latter case, the Federal Court followed the judgment of the House of Lords in Council of Civil Service Unions & Ors v. Minister for the Civil Service  AC 374 (HL) in particular, Lord Diplock’s three grounds ie, (i) illegality, (ii) irrationality and (iii) procedural impropriety. As the judgment of the learned judge in this case is not challenged on the ground that he had misdirected himself on law, I do not think I need say more on it.
The challenge to the judgment of the learned judge is against his finding that the appellant had failed to comply with a valid order of the respondent to report for duty on 9 February 1999, that that was a fresh misconduct, that the respondent had the right to terminate her for that misconduct and had rightly terminated her the second time.
With respect to the learned judge, I am of the view that the issue is whether the respondent had complied with the terms of the first award.
That award says that the appellant was to be reinstated within one month of the date of the award, ie, 22 November 1997. The appellant reported for duty on 22 December 1997 but she was given the letter dated 20 December 1997 saying that the respondent was not reinstating her as the respondent was “appealing” (actually applying for an order of certiorari ) against the said award. It should be noted that even as on the day the respondent reported for duty (22 December 1997) the respondent had not even filed the application for certiorari in the High Court. The motion was only filed on 3 January 1998.
Further, the fact that the said letter was dated 20 December 1997, ie, one day prior to the expiry of the one-month period, shows very clearly that the respondent did not intend to reinstate her during the said one-month period ordered by the Industrial Court.
It is also understandable why the appellant reported for duty on 22 December 1997 and not earlier. The first award ordered the respondent to reinstate her within one month, which period expired on 21 December 1997. The court did not order the appellant to go back to work within that period. It is reasonable to infer that during that period she was waiting for the respondent to call her back to work. The respondent did not do so. So, on the following day she went back to work but was given the letter dated 20 December 1997 saying that the respondent was not reinstating her. That is the clearest form of noncompliance by the respondent that can ever be.
Next, the first award also ordered that back wages be paid to her within one week after the appellant had reported for duty on 22 December 1997 (even though refused by the respondent). The back wages should have been paid by 29 December 1997. It was not paid. Here again there is a very clear noncompliance of the first award by the respondent.
In the circumstances, I am of the view that this is a clear case of non-compliance of the first award by the respondent. What had happened subsequently is of no consequence. It would have been different if the respondent had reinstated her during the period of one month and paid her back wages within the period of one week thereafter and subsequently she committed another misconduct and for that fresh misconduct her service was terminated. That could be a fresh case, under s. 20 of the Act. Here, it is the respondent who had not complied with the first award by not calling her to go back to work within the one-month period and by not allowing her to resume her job when she reported for duty on 22 December 1997 and by not paying her the back wages as ordered by the Industrial Court. What happened subsequently is of no relevance. So, in my view, the argument that the second award had superceded the first award, that the first award had become academic, that the appellant had committed a fresh misconduct by not complying with the respondent’s letter dated 5 February 1999 (more than one year after the expiry of the period by which time she should have been reinstated as ordered by the Industrial Court), that the respondent had a right to terminate her the second time and therefore her remedy lies under s. 20(1) of the Actand not s. 56(1), that she had “accepted” the second termination and had elected to seek her remedy under s. 20(1) and is therefore estopped from seeking her remedy under s. 56(1), all fall to the ground.
The Industrial Court clearly has the jurisdiction to make the second award that it did under s. 56(1) of the Act. That section provides:
56(1) Any complaint that any term of any award or of any collective agreement which has been taken cognisance of by the Court has not been complied with may be lodged with the Court in writing by any trade union or person bound by such award or agreement.
(2) The Court may, upon receipt of the complaint,
(a) make an order directing any party –
(i) to comply with any term of the award or collective agreement; or
(ii) to cease or desist from doing any act in contravention of any term of the award or collective agreement;
(b) make such order as it deems fit to make proper rectification or restitution for any contravention of any term of such award or collective agreement; or
(c) make such order as it considers desirable to vary or set aside upon special circumstances any term of the award or collective agreement.
The leading case on this section is Dunlop Industries Employees Union v. Dunlop Malaysian Industries Bhd & Anor 1 CLJ 232;  CLJ 86 (Rep) 2 MLJ 81 (SC).
The headnote of the report summarises the facts and the judgment clearly and accurately and I quote:
In this case the respondent employers and the appellant trade union had entered into a collective agreement which provided inter alia that the respondent will give such advance notice as it is reasonably possible too the appellant in writing of any redundancy or retrenchment but such notice shall not be less than two months prior to retrenchment. The respondent informed the appellant of the need to retrench some of its employees and issued the notices of retrenchment on the same day. The appellant protested and subsequently lodged a complaint with the Industrial Court of non-compliance of the collective agreement. The Industrial Court held that the appellant had made out its case and ordered the employees to be reinstated. The respondent then applied to the High Court for certiorari to quash the decision of the Industrial Court. The High Court holding that the Industrial Court had acted in excess of jurisdiction in ordering reinstatement when dealing with a complaint of non-compliance, quashed the award of the Industrial Court.
The appellants appealed.
Held: It is abundantly clear that the Industrial Court could in the circumstances of the complaint of non-compliance in this case make the order that it did for the retrenched employees to be reinstated and this order was properly made in accordance with the provisions of section 56(2)(b) of the Industrial Relations Act 1967, for the purpose of making proper rectification and restitution for a contravention of a term of the collective agreement. The order of the learned Judge of the High Court in quashing the award of the Industrial Court must therefore be set aside.
Abdoolcader SCJ, delivering judgment of the court said at p. 83:
The complaint of non-compliance with an award or collective agreement taken cognizance of is made under section 56(1)and the Industrial Court can then give the relief specified in subsection (2) of that section 205.
It is true that in that case the complaint was for non-compliance of a collective agreement while in this case the complaint is for non-compliance with an earlier award of the Industrial Court. But both such complaints are clearly provided for by s. 56(1)as complaints that can be lodged with the court and regarding which the court can make the orders provided for in that section.
The learned judge had also taken into consideration in arriving at his judgment that the appellant had not filed any affidavit in opposition to the substantive motion and said:
In the absence of such an affidavit, the Respondent (appellant in the appeal before this Court – added) is deemed to admit the averments of the Applicant (respondent in this court).
He cited the case of Ng Hee Thoong v. Public Bank Bhd 1 CLJ 609(CA).
Again, in that case, it was my learned brother Gopal Sri Ram JCA, who delivered the judgment of this court. My learned brother said at p. 614:
Now, it is a well-settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted: Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd. 1 CLJ 2;  CLJ 45 (Rep); Overseas Investment Pte Ltd. v. Anthony William O’Brien & Anor.  3 MLJ 332.
There is no doubt that that is the law. However, it should be noted that that appeal arose from an application for summary judgment by the respondent therein. The appellant therein opposed the summons by way of an affidavit, asserting that he had not received any demand from the respondent and that the respondent had not given him one month’s notice of intention to proceed under O. 3 r. 6 of the Rules of the High Court 1980in view of the delay exceeding one year since the last proceeding. The respondent, however, did not file any affidavit in reply.
The allegations made by the appellant in that case in his affidavit, that were not replied to, were allegations of facts and in an application for summary judgment.
In Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd. 1 CLJ 2;  CLJ 45 (Rep)(SC) Lee Hun Hoe CJ (Borneo) delivering judgment of the court said:
In his affidavit in reply dated January 23, 1984 and opposing the summary judgment, Liew Mook, the Managing Director of appellant set out the facts relating to the variation of the agreement by the transfer of shares instead of transfer of land.
Paragraph 14 of the affidavit which set out earlier referred to the variation of the agreement and stated that the respondent was estopped from relying on the terms of the agreement.
In his affidavit dated April 30, 1984 Choo Chok Low did not answer the matters raised in the above affidavit of Liew Mook.
There is force in the appellant’s contention that an affidavit must reply specifically to allegations, and if it does not, then those allegations not replied to must be taken to have been accepted.
As can be seen, it is also about an allegation of fact in a summary judgment proceeding.
In the present appeal, first, the proceeding before the learned judge was for an order of certiorari, arising from the second award made by the Industrial Court. The record of the proceeding before the Industrial Court was before the High Court. Both awards were there. The relevant letters were before the court, produced by the respondent in support of its application. What was in issue, really, was whether the respondent had complied with the first award. The relevant facts on that issue were not in dispute. Clearly, the appellant could rely on the same facts, letters and awards produced by the respondent at the proceeding before the learned judge. So, even if the appellant should not be allowed to refer to the affidavit she filed in support of her application to strike out the motion because she had not given notice of such intention (indeed I am of the view that it is a matter of discretion for the High Court whether to refer to it or not since the affidavit was filed in the same proceeding and in the same file), there was ample evidence for the learned judge to make his decision, whether in favour of the respondent or the appellant. In the circumstances of this case, the failure of the appellant to file an affidavit of opposition against the substantive motion is of no consequence.
In the circumstances, I am of the view that this is a clear case falling within the ambit of the provisions of s. 56 of the Actand that it was within the jurisdiction and powers of the Industrial Court to make the second award that it did. The Industrial Court had not committed any error of law that warrants the High Court to review and quash the second award by an order of certiorari. We allowed the appeal with costs. The deposit lodged by way of security will be paid out to the appellant towards her taxed costs.