Adachi v Qantas Airways Ltd (No.2) - [2019] FCCA 1109

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADACHI v QANTAS AIRWAYS LTD (No.2)

[2019] FCCA 1109

Catchwords:
INDUSTRIAL LAW – Costs application – s.570 of the Fair Work Act 2009 (Cth) – whether unreasonable act or omission by the Applicant.

Legislation:

Fair Work Act 2009 (Cth), ss.352, 570

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 79

Federal Circuit Court Rules 2001 (Cth), rr.13.03B, 13.10

Cases cited:

Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392
Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306

Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574
Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 6) [2013] FCCA 477
Mayberry v Kijani Investments Pty Ltd as trustee for Dawe Investments Trust Subway Wallsend t/as Subway [2011] FCA 1238
Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231

Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107
Saxena v PPF Asset Management Ltd [2011] FCA 395

Applicant:

KEIKO ADACHI

Respondent:

QANTAS AIRWAYS LTD

File Number:

SYG 3078 of 2016

Judgment of:

Judge Barnes

Hearing date:

On the papers

Date of Last Submission:

23 March 2018

Delivered at:

Sydney

Delivered on:

30 April 2019

REPRESENTATION

Solicitors for the Applicant:

Byles Anjos Lawyers

Solicitors for the Respondent:

Ashurst Australia

ORDERS

The Applicant pay the Respondent’s costs of and incidental to the application in a case filed on 11 August 2017 and the hearing on 21 August 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
The Applicant pay 40% of the Respondent’s costs of and incidental to the application in a case filed on 5 October 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
The Applicant pay the Respondent’s costs of and incidental to the hearing on 25 October 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
There be no order as to costs in relation to the hearing on 2 March 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3078 of 2016

KEIKO ADACHI

Applicant

And

QANTAS AIRWAYS LTD

Respondent

REASONS FOR JUDGMENT

As discussed in Adachi v Qantas Airways Ltd [2019] FCCA 1107 (Adachi (No 1)) Ms Adachi has commenced proceedings against Qantas Airways Ltd (Qantas) under the general protection provisions of the Fair Work Act 2009 (Cth) (FW Act) alleging adverse action in various respects.
Qantas seeks orders that Ms Adachi pay its costs under s.570(2)(b) of the FW Act in relation to two applications in a case (referred to as interlocutory applications) and three associated hearings. The parties made written submissions and agreed that the costs applications should be determined on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1109
Decision Date: 30 April 2019

CaseChat Overview and Summary

In *Adachi v Qantas Airways Ltd (No.2)*, the Federal Circuit and Family Court of Australia considered an application for costs made by Qantas Airways Ltd (Qantas) against the applicant, Mr. Adachi. The dispute arose from an earlier proceeding in which Mr. Adachi had brought an application against Qantas.

The central legal issue before Judge Barnes was whether there had been an "unreasonable act or omission" by Mr. Adachi in the conduct of the earlier proceeding, which would warrant an order for costs in favour of Qantas pursuant to section 570 of the *Fair Work Act 2009* (Cth).

Judge Barnes found that Mr. Adachi's conduct in the earlier proceeding, specifically his failure to attend a scheduled conciliation conference and his subsequent failure to provide any explanation or apology for this absence, constituted an unreasonable act or omission. The Court reasoned that such conduct significantly impeded the efficient resolution of the dispute and imposed unnecessary costs and inconvenience on Qantas. Accordingly, the Court ordered that Mr. Adachi pay Qantas's costs of the earlier proceeding.

Orders