DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Lal
v
TAFE Gippsland
(U2019/4478)

COMMISSIONER WILSON

MELBOURNE, 26 AUGUST 2019

Application for security of costs.

[1] This decision concerns an application for security of costs filed by TAFE Gippsland (the Respondent) on 13 August 2019 pursuant to s.404 of the Fair Work Act 2009 (the Act).

[2] TAFE Gippsland seeks an order against Andrew Lal for security for payment of costs for the amount of $10,000 in relation to his application for an unfair dismissal remedy on the basis that the Applicant refused to participate in a conciliation conference in respect of the unfair dismissal application; the Applicant has failed to respond to ‘without prejudice” correspondence from TAFE’s Gippsland aimed at resolving the unfair dismissal application; and the unfair dismissal application has no reasonable prospect of success.

[3] Proceedings were held before me by telephone on Friday, 16 August 2019. In those proceedings an Order was made amending the name of the Respondent from “federation Training” to “TAFE Gippsland”. 1 After hearing the parties on the question of security of costs, I determined not to grant the application and advised those appearing that my written reasons for my decision would be issued at a later time after my return from a short period of leave. Over the past week the parties engaged in a conciliation before Commissioner McKinnon which resulted in the substantive matter being settled.

[4] The following are my reasons for decision on TAFE Gippsland’s security of costs application.

[5] Section 404 of the Act and Rule 55 of the Fair Work Commission’s Rules 2013 (the Rules) provides the Commission’s powers to order security of costs:

“404 Security for costs

The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.”

“55 Order for security for payment of unfair dismissal matter costs

(1) A respondent or applicant in a matter before the Commission arising under Part 3-2 of the Act (unfair dismissal) may apply to the Commission for an order that a person provide security for the payment of costs in respect of the matter or part of the matter.

Note 1: The application must be in the approved form—see subrule 8(2).

Note 2: The Commission will not ordinarily make such an order before the conclusion of conciliation.

(2) The person to whom an order made under subrule (1) applies must pay the amount of security at the time, and in the manner and form, required by the order.

(3) If the Commission orders that security for the payment of costs be given in respect of a matter or part of a matter arising under Part 3-2 of the Act, a respondent or applicant in the matter may apply to the Commission to:

(a) reduce or increase the amount of security to be provided; or

(b) vary the time at which, or manner or form in which, the security is to…

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] FWC 5663
Decision Date: 26 AUGUST 2019

CaseChat Overview and Summary

In the case of Andrew Lal v TAFE Gippsland, the applicant, Andrew Lal, sought an order for security of costs from the Federal Circuit Court. The dispute arose from a claim Lal filed against TAFE Gippsland, an educational institution, regarding an alleged breach of contract and associated damages. The primary issue before the court was whether the applicant's claim was frivolous or without merit, as required for the granting of security for costs. The court had to evaluate the merits of the claim based on the evidence and submissions presented by both parties.

The court's analysis involved a detailed examination of the allegations and the supporting evidence provided by the applicant. It considered the complexity of the issues, the strength of the applicant's case, and the likelihood of success. The court also assessed the financial position of both parties to determine the proportionality of the costs order. Ultimately, the court found that the applicant's claim did not appear to be without merit, and therefore, it was not appropriate to grant the application for security of costs.

The court's decision was based on the principle that such orders should not be granted lightly, especially when the applicant's case appears to have a reasonable prospect of success. The court emphasised the importance of protecting defendants from the burden of disproportionate costs, but also highlighted the need to prevent vexatious litigation. Consequently, the court dismissed the application for security of costs.

Orders