FEDERAL COURT OF AUSTRALIA
Birner v Aircraft Turnaround Engineering Pty Ltd (No 2) [2019] FCA 1706
ORDERS
QUD 241 of 2017 BETWEEN: ROBERT BIRNER
Appellant
AND: AIRCRAFT TURNAROUND ENGINEERING PTY LTD
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
21 OCTOBER 2019
THE COURT ORDERS THAT:
1.There be no costs ordered in the appeal in QUD 241 of 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
BACKGROUND
On 11 July 2019, I delivered judgment in the appeal in Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085. The background facts and reasons for my decision are set out in detail in that judgment.…
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- Case
- [2019] FCA 1706
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to decide included whether the appeal was instituted vexatiously or without reasonable cause, as per section 570(2) of the Fair Work Act. The court had to consider the policies and principles underlying section 570, including the protection of parties from vexatious litigation while also ensuring that the right to litigate is not unduly restricted. The appellant argued that the proceedings had reasonable prospects of success at the time they were instituted and that costs should not be awarded as his case had merit.
The court acknowledged that the appellant, as a litigant in person, had addressed various aspects of the appeal in his submissions. However, the court found that the appeal was not instituted without reasonable cause. The appellant's argument that his case had merit was not sufficient to meet the threshold required under section 570(2). The court considered the dismissal of the respondent’s application for costs in the Federal Circuit Court as evidence that the appellant believed his case had merit. The court concluded that the appeal lacked reasonable prospects of success at the time it was instituted, warranting the imposition of costs against the appellant. However, the court decided not to award costs in the appeal, citing the overall circumstances of the case.
The court ordered that there be no costs awarded in the appeal in QUD 241 of 2017. The decision highlighted the importance of ensuring that proceedings are not brought vexatiously or without reasonable cause, while also considering the broader implications for litigants in person and the protection of their right to litigate.
Orders
Orders of the court
1. There be no costs ordered in the appeal in QUD 241 of 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The appellant filed submissions on 6 September 2019. In these submissions the appellant addresses a wide range of matters including further arguments in relation to the merits of the substantive appeal. I consider that the appellant’s submissions were not strictly in response to the respondent’s submissions. However, in light of the appellant’s position as a litigant in person, I am willing to accept these submissions to the extent that they address the issue of costs. In relation to the issue of costs, the appellant submitted, in summary: ·The appellant opposes the application for costs and considers that the application should be dismissed. ·If costs are to be ordered, they should be ordered on the event-based scale contained in Sch 1 of the Rules. ·Section 570 of the Fair Work Act 2009 (Cth) lies within Ch 4, Pt 4-2 of that Act. The Court should consider a number of policies and principles when considering s 570(2), including: a. The policy and purpose of the section is to free parties from the risk of having to pay their opponent’s costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause. b.A person will rarely be ordered to pay the costs of a proceeding. c.It is not necessary to prove that there are exceptional circumstances warranting the making of such an order. d. The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: Australian Workers Union v Leighton Contractors Pty Ltd (No. 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7]; Gonzalez-Barbosa v Go to Court Franchising Pty Ltd (No 2) [2017] FCCA 910. ·The bringing and continuing of proceedings in which allegations of contravention of the Fair Work Act are made ought not to be discouraged. ·Employees ought not to be discouraged from action against employers, by the prospect of costs orders, especially where they already feel aggrieved by the employer. ·The relevant consideration is whether the proceedings had reasonable prospect of success at the time it was instituted. At this time the appellant considered that his case had merit. This is evidenced by the dismissal of the respondent’s application for costs in the Federal Circuit Court. ·Costs should not be awarded as the appellant’s case had merit. CONSIDERATION Section 570 of the Fair Work Act provides: Costs only if proceedings instituted vexatiously etc.(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. …(2) The party may be ordered to pay the costs only if:(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or(c)the court is satisfied of both of the following:(i)the party unreasonably refused to participate in a matter before the FWC;(ii)the matter arose from the same facts as the proceedings.