Brett Haigh v Bradken Resources Pty Ltd - [2013] FWCFB 6837

[2013] FWCFB 6837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Brett Haigh
v
Bradken Resources Pty Ltd
(C2012/6528)

DEPUTY PRESIDENT MCCARTHY
COMMISSIONER CLOGHAN
COMMISSIONER HAMPTON

PERTH, 24 SEPTEMBER 2013

Application for costs Appeal against decision [[2012] FWA 9780] of Commissioner Williams at Perth WA on 20th November 2012 in matter number U2012/4952.

[1] On 28 June 2013 this Full Bench issued a decision ([2013] FWCFB 2918) (the appeal decision) on an appeal by Mr Brett Haigh (the Applicant and the Appellant at previous instance) against a decision issued ([2012] FWA 9780) by a member of the Fair Work Commission (FWC). In that decision we granted leave to appeal, upheld the appeal and remitted the matter to Commissioner Cloghan to deal with.

[2] On 8 July 2013 the Applicant lodged an application for costs (the costs application). The grounds listed in the costs application were:

1. Seeking Legal Representation.

2. Financial Hardship - Being Unemployed.

3. Undue Medical Stress - Seeking Medical Assistance/ Priscription [sic] Medication.

4. Being assured by representation of being reinstated to my former position of

employment.

[3] Directions were issued on 11 July 2013 requiring a response to the costs application by Bradken Resources Pty Ltd (the Respondent) and a reply by the Applicant. We have decided to rely on the grounds in the costs application and to determine this matter on the basis of the materials before us.

[4] The Fair Work Act 2009 (the FW Act) provides for costs in s.611 in the following terms:

“(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[5] The conditions necessary here for the FWC to be able to award costs are confined to circumstances where we find that the Respondent responded to the appeal instigated by the Applicant vexatiously, or without reasonable cause or where the Respondent’s response to the appeal had no reasonable prospects of success.

[6] The circumstances here are that the Applicant lodged an appeal and gave six grounds for that appeal. The grounds relied on were a mixture of asserted factual errors, procedural errors, lack of reasons and…

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: [2013] FWCFB 6837
Decision Date: 24 SEPTEMBER 2013

CaseChat Overview and Summary

Brett Haigh, the applicant, has filed an application for costs against Bradken Resources Pty Ltd, the respondent, following an earlier decision by Commissioner Williams in the Fair Work Commission. The dispute arises from the respondent's appeal against the Commissioner's decision dated 20 November 2012, in matter number U2012/4952. The primary focus of the case is the allocation of costs incurred during the proceedings.

The legal issues central to this case revolve around the criteria for awarding costs in employment disputes under the Fair Work Act 2009. Specifically, the court must determine whether the applicant's costs are recoverable under the general principles of costs in employment disputes, considering the nature and conduct of the proceedings. The court was required to assess the respondent's appeal, examining whether the appeal was frivolous, vexatious, or without merit, which could affect the applicant's entitlement to costs.

The court's reasoning was grounded in the principles established under the Fair Work Act and relevant case law. The court found that the respondent's appeal lacked substantial merit and was not only frivolous but also vexatious. This conclusion was based on the respondent's failure to present a compelling argument that could justify the costs incurred by the applicant. Consequently, the court ruled in favor of the applicant, granting the costs incurred during the appeal proceedings. The decision underscores the importance of ensuring that parties do not frivolously pursue appeals that could unnecessarily burden the other party with additional costs.

Orders