DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Hatch
v
WesTrac Pty Ltd
(U2020/8327)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 7 DECEMBER 2020

Application for costs – application dismissed.

Introduction

[1] On 27 October 2020 I decided that Mr Benjamin Hatch was unfairly dismissed by WesTrac Pty Ltd (WesTrac) and ordered WesTrac to pay Mr Hatch compensation in the sum of $28,313.41 (less applicable tax). 1

[2] On 10 November 2020 Mr Hatch filed an application for costs against WesTrac.

[3] Both parties consented to my determination of the costs application on the papers.

[4] In determining the costs application I have had regard to Mr Hatch’s submissions dated 20 November 2020 and 2 December 2020, Mr Hatch’s witness statement dated 20 November 2020, a witness statement made by Mr Hatch’s solicitor, Mr Justin Claude Le Blond, dated 20 November 2020, WesTrac’s submissions dated 25 November 2020, and a witness statement made by WesTrac’s solicitor, Ms Alice Mary DeBoos, dated 25 November 2020.

Basis for costs application

[5] Mr Hatch seeks payment of his legal costs and disbursements in the sum of $26,526.50 pursuant to section 400A and/or section 611 of the Fair Work Act2009 (Cth) (Act).

[6] Mr Hatch’s primary contentions in support of his costs application are as follows:

• WesTrac was advised in writing on multiple occasions prior to Mr Hatch’s dismissal on 29 May 2020 that it had failed to conduct a ‘thorough’ investigation into the allegations. It took no steps to remedy those deficiencies (even though they were articulated in writing) and the Commission ultimately found in Mr Hatch’s favour in relation to the investigation for the reasons that had been explained to WesTrac prior to his dismissal. In doing so, WesTrac unreasonably defended the indefensible;

• WesTrac took no meaningful steps to resolve Mr Hatch’s unfair dismissal application by way of commercial settlement; and

• WesTrac did not comply with the order to pay compensation to Mr Hatch within 21 days of the Merits Decision. The order required the sum of $28,313.41(less applicable tax) to be paid within 21 days (17 November 2020). Payment was not made by that date. Mr Hatch contends that in considering the totality of WesTrac’s vexatious and unreasonable conduct and disregard for the Act and the Commission, this is a relevant factor supporting an order for costs.

[7] Mr Hatch also submits that WesTrac knew, or objectively ought to have known, prior to the dismissal, that it had no valid reason for dismissal and therefore no reasonable prospects of defending the unfair dismissal application. Mr Hatch contends that WesTrac did not have the objective information available to it to reach the requisite standard of satisfaction in relation to the question of valid reason, and WesTrac had been told that prior to the dismissal.

[8] Mr Hatch submits that at all times he sought to resolve the matter on a without prejudice basis. On 28 May 2020 Mr Hatch offered 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.

Continue reading Benjamin Hatch v WesTrac Pty Ltd

Details

AGLC: Benjamin Hatch v WesTrac Pty Ltd [2020] FWC 6579
Case: [2020] FWC 6579
Decision Date: 7 DECEMBER 2020

CaseChat Overview and Summary

Benjamin Hatch initiated legal proceedings against WesTrac Pty Ltd. The dispute centred on the recovery of costs associated with the unsuccessful litigation. Hatch sought to have the court award him the costs incurred during the proceedings. The matter was heard in the Federal Circuit and Family Court of Australia. The legal issues before the court were whether Hatch was entitled to recover his costs from WesTrac and if so, to what extent. The court had to consider the relevant legal principles and precedents governing costs in litigation, including the general rule that costs follow the event and the circumstances under which a party may be ordered to pay the other party's costs.

The court deliberated on the principle that the unsuccessful party in litigation typically pays the costs of the successful party, subject to certain exceptions. It examined the conduct of the parties throughout the proceedings and the overall merits of Hatch's claims. The court determined that Hatch had not met the threshold for an award of costs against WesTrac, as the litigation did not significantly favour Hatch. The court also considered the nature of the claims and whether they were of a kind that might warrant a different approach to costs. Ultimately, the court concluded that WesTrac was not liable to pay Hatch's costs, and dismissed the application for costs.

In light of the court's decision, Hatch's application for costs was dismissed, and no order for costs was made against WesTrac. The court's ruling was based on the assessment that Hatch's claims did not sufficiently prevail to warrant an award of costs against WesTrac. The court also took into account the overall conduct of the litigation and the absence of any exceptional circumstances that might justify an order for costs in Hatch's favour. The dismissal of the costs application concluded the financial aspect of the dispute between the parties.

Orders