Belcher v Scruton Property Pty Ltd (No 2) - [2022] FedCFamC2G 676

Federal Circuit and Family Court of Australia
(DIVISION 2)
Belcher v Scruton Property Pty Ltd (No 2) [2022] FedCFamC2G 676

File number(s): BRG 222 of 2020

Judgment of: JUDGE TONKIN

Date of judgment: 18 August 2022

Catchwords: INDUSTRIAL LAW – Application for costs under section 570 (2) Fair Work Act 2009 (Cth) – whether costs should be awarded – order that applicant pay the respondents costs on a party/party basis – application for indemnity costs dismissed

Legislation: Fair Work Act 2009 (Cth)

Cases cited:
Australian Securities and Investment Commission v Mitchell (No 4) [2021] GCA 1387

Calderbank v Calderbank [1975] 3 All ER 333

Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Nield v Mathison (No 2) [2014] FCAFC 86

Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2013] FCCA 388

Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276

Saxena v PPF Asset Management Ltd [2011] FCA 395

Wellington v Offermans Partners (No 2) [2021] FCCA 1846

Division: Division 2 General Federal Law

Number of paragraphs: 39

Date of last submission/s: 10 June 2022

Date of hearing: 14 June 2022

Place: Brisbane

Counsel for the Applicant: Mr Amerena

Solicitor for the Applicant: Workplace Law Group

Counsel for the Respondent: Mr Hogg

Solicitor for the Respondent: McInnes Wilson Lawyers

Table of Corrections

25 August 2022 In Order 1 the date 5 October 2022 has been replaced with 5 October 2021.

25 August 2022 In paragraph 38 the date 1 October 2022 has been replaced with 5 October 2021

ORDERS

BRG 222 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GUY ANDREW BELCHER

Applicant

AND:
SCRUTON PROPERTY PTY LTD

Respondent

order made by:

JUDGE TONKIN

DATE OF ORDER:

18 August 2022 Amended 25 August 2022

THE COURT ORDERS THAT:
1.The applicant is to pay the respondents costs on a party/party basis as and from ~~5 October 2022~~ 5 October 2021 as agreed or taxed.
2.The application for indemnity costs is dismissed.

Order 1 has been amended pursuant to r.17.05(2)(e) Federal Circuit and Family Court (Division 2)(General Federal Law) Rules 2021 to show “5 October 2021” in lieu of “5 October 2022”
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN

The applicant filed an originating application on 16 April 2020 seeking declarations alleging that the respondent Scruton Property Group Pty Ltd (“Scruton Property”) contravened the Fair Work Act 2009 (Cth) (“FWA”)…

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: [2022] FedCFamC2G 676
Decision Date

CaseChat Overview and Summary

Belcher was the plaintiff in a proceeding against Scruton Property Pty Ltd, the defendant, before the Federal Circuit Court. The dispute centred around the interpretation and application of the laws governing indemnity costs in litigation. The Federal Circuit Court was tasked with determining whether the respondent had demonstrated a sufficient basis for an order that the applicant should pay the respondent’s costs on an indemnity basis.

The court needed to assess the exceptional circumstances required to justify an order for indemnity costs. It had to consider whether the conduct of the plaintiff warranted such a severe penalty and whether the principles established in previous cases supported such an order. The court referenced precedents such as Jaros v Calden and Colgate-Palmolive v Cussons Pty Ltd to ascertain the applicable legal standards.

Upon reviewing the evidence and applicable legal principles, the court found that the plaintiff’s conduct did not meet the stringent criteria necessary to warrant an indemnity costs order. The court emphasised the exceptional nature of such orders and concluded that the respondent had not established a basis for the imposition of indemnity costs. Instead, the court determined that a party/party costs order from a specified date was appropriate, and it dismissed the application for indemnity costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

An order for the payment of indemnity costs should only be made where the conduct of a party warrants it. In Jaros v Calden (No 2) [2020] FCCA 2059 at [27] Judge Heffernan noted the “exceptional nature of an order for costs on an indemnity basis.” Shepherd J in Colgate-Palmolive v Cussons Pty Ltd (1993) 118 ALR 248 at [24] reviewed relevant authorities and summarised the applicable principles with respect to indemnity costs which I adopt. I am not satisfied that the respondent has established a basis for an order for costs on an indemnity basis. Conclusion I am satisfied that there are justifying circumstances to make an order that the applicant pay the respondent’s costs on a party/party basis as and from 5 October 2021 as agreed or taxed. The application for indemnity costs is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRG 222 of 2020
Judgment of:	JUDGE TONKIN
Date of judgment:	18 August 2022
Catchwords:	INDUSTRIAL LAW – Application for costs under section 570 (2) Fair Work Act 2009 (Cth) – whether costs should be awarded – order that applicant pay the respondents costs on a party/party basis – application for indemnity costs dismissed
Legislation:	Fair Work Act 2009 (Cth)
Cases cited:	Australian Securities and Investment Commission v Mitchell (No 4) [2021] GCA 1387 Calderbank v Calderbank [1975] 3 All ER 333 Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574 Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 Nield v Mathison (No 2) [2014] FCAFC 86 Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2013] FCCA 388 Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 Saxena v PPF Asset Management Ltd [2011] FCA 395 Wellington v Offermans Partners (No 2) [2021] FCCA 1846
Division:	Division 2 General Federal Law
Number of paragraphs:	39
Date of last submission/s:	10 June 2022
Date of hearing:	14 June 2022
Place:	Brisbane
Counsel for the Applicant:	Mr Amerena
Solicitor for the Applicant:	Workplace Law Group
Counsel for the Respondent:	Mr Hogg
Solicitor for the Respondent:	McInnes Wilson Lawyers

Table of Corrections
25 August 2022	In Order 1 the date 5 October 2022 has been replaced with 5 October 2021.
25 August 2022	In paragraph 38 the date 1 October 2022 has been replaced with 5 October 2021

BRG 222 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GUY ANDREW BELCHER Applicant
AND:	SCRUTON PROPERTY PTY LTD Respondent

order made by:	JUDGE TONKIN
DATE OF ORDER:	18 August 2022 Amended 25 August 2022