Altintas v O'Dea Lawyers (No 2)

FEDERAL COURT OF AUSTRALIA

Altintas v O’Dea Lawyers (No 2) [2018] FCAFC 187

File number:

SAD 347 of 2017

Judge:

WHITE, PERRY AND CHARLESWORTH JJ

Date of judgment:

5 November 2018

Catchwords:

COSTS – application by the Appellant under s 570 of the Fair Work Act 2009 (Cth) for an award of costs – Appellant’s claim that the Respondent’s unreasonable conduct caused her to incur costs – Respondent did not comply with the Court’s order regarding the filing of submissions and did not appear at the hearing – no adequate explanation – Respondent a legal practitioner – whether Respondent’s unreasonable conduct caused the Appellant to incur additional costs – application dismissed.

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Cases cited:

A Team Diamond Headquarters Pty Ltd  v Main Road Property Group Pty Ltd [2009] VSCA 208, (2009) 25 VR 189

Virgtel Ltd v Zabusky (No 2) [2009] QCA 349

Date of hearing:

Determined on the papers

Registry:

South Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

21

Counsel for the Appellant:

Mr K Hanna

Solicitor for the Appellant:

Wearing Law

Solicitor for the Respondent:

Damien O’Dea of O’Dea Lawyers

ORDERS

SAD 347 of 2017

NOTICE OF QUESTION REFERRED BY THE SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL

BETWEEN:

SERA ALTINTAS

Appellant

AND:

O'DEA LAWYERS

Respondent

JUDGES:	WHITE, PERRY AND CHARLESWORTH JJ
DATE OF ORDER:	5 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The Appellant’s application for costs is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 27 September 2018, the Court delivered judgment on a question reserved for its consideration by the South Australian Employment Tribunal (the SAET).  The Court declined to answer the reserved question on the basis that it lacked jurisdiction to do so. 

2. When the judgment was delivered, counsel for the Appellant made an application that the Respondent pay some of her costs in relation to the proceedings in this Court. Counsel submitted that such an order was appropriate even taking into account the terms of s 570 of the Fair Work Act 2009 (Cth) (the FW Act).

3. The Respondent, who is a legal practitioner, represented himself in the proceedings.  He opposed the making of the costs order sought by the Appellant but did not, at that time, make any application for an order for costs in his favour. 

4. The Court then made orders with respect to the Appellant’s application for costs which required an exchange of written submissions.  The Court indicated that it would determine the application on the papers.  Subsequently, each of the Appellant and the Respondent provided both submissions and a supporting affidavit.  We have had regard to all these documents. 

5. It was common ground that s 570 of the FW Act is applicable to the Appellant’s application for costs. Section 570 provides:

   570  Costs only if proceedings instituted vexatiously etc.