Buckingham v KSN Engineering Pty Ltd & Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUCKINGHAM v KSN ENGINEERING PTY LTD & ANOR (No.2) [2008] FMCA 1475

INDUSTRIAL LAW – Allegation of acts for prohibited reason.

COSTS – Whether unreasonable act or omission.

Workplace Relations Act 1996, ss.793(1)(j), 824

Australian International Pilots Association v Qantas Airways (No.3) (2007) 162 FCR 392; [2007] FCA 879
Buckingham v KSN Engineering [2008] FMCA 546
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143
McAleer v University of Western Australia (No.2) (2007) 161 IR 151; [2007] FCA 247

Applicant: TERRY ALBERT BUCKINGHAM

First Respondent: KSN ENGINEERING PTY LTD

Second Respondent: KYUNG SAM NA

File Number: PEG 141 of 2007

Judgment of: Lucev FM

Hearing date: 6 October 2008

Date of Last Submission: 6 October 2008

Delivered at: Perth

Delivered on: 27 October 2008

REPRESENTATION

Counsel for the Applicant: Ms G A Archer SC

Solicitors for the Applicant: Blake Dawson

Counsel for the Respondents: Mr S J Wood

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That the first and second respondents’ application for the costs of the first and second respondents’ application in a case filed 21 September 2007 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 141 of 2007

TERRY ALBERT BUCKINGHAM

Applicant

And

KSN ENGINEERING PTY LTD

First Respondent

KYUNG SAM NA

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 29 August 2008 this Court delivered reasons for judgment in this matter on a strike-out application by the first and second respondents in relation to the amended statement of claim.[1]

   [1] Buckingham v KSN Engineering [2008] FMCA 546 (“KSN Engineering (No.1)”).

2. The Court struck out the following paragraphs of the claim (which are grouped by categories relevant in the strike-out application):

   a)paragraphs 22, 24 and 29;

   b)paragraphs 29B, 31, 33B, 35, 39, 43, 47 and 51;

   c)paragraphs 29C, 32, 33C, 36, 40, 44, 48 and 52;

   d)paragraphs 29D, 33, 33D, 37, 41, 45, 49 and 53;

   e)paragraphs 59, 60 and 61; and

   f)paragraphs 63-65.

3. Paragraph 28 was partially struck out.

4. The following paragraphs (again grouped by categories) were not struck out:

   a)29A, 30, 33A, 34, 38, 42, 46 and 50 (save that the words “and particulars” were struck out); and

   b)paragraphs 66-68; and

   c)parts of the Amended substantive application, including provisions as to penalties.

5. By the application presently before the Court, the first and second respondents seek the costs of the strike-out application.

Issues

1. The issue in these proceedings is whether costs ought to be awarded against the applicant, contrary to the normal rule in workplace relations proceedings, because there has been an unreasonable act or omission by the applicant.

Consideration

What constitutes an unreasonable act or omission under section 824(2) of the Workplace Relations Act

1. Section 824 of the Workplace Relations Act 1996 (Cth)[2] provides as follows:

   (1)A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the…