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

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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…

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Details
Case
[2008] FMCA 1475
Decision Date

CaseChat Overview and Summary

Buckingham v KSN Engineering Pty Ltd & Anor (No.2) involves an industrial law dispute where Buckingham alleged that KSN Engineering Pty Ltd and another party had engaged in acts for a prohibited reason. The case was heard in the Fair Work Commission. The primary legal issues were whether the alleged acts constituted prohibited reasons under the Fair Work Act 2009 and whether any act or omission by Buckingham was unreasonable, potentially affecting the costs awarded to the respondents.

The Fair Work Commission considered the nature of the alleged acts and whether they fell within the prohibited reasons outlined in the Fair Work Act 2009. The court examined whether Buckingham's actions could be considered unreasonable, which would have implications for the costs awarded to the respondents. The reasoning focused on statutory interpretation and the specific circumstances of the case, including the conduct of both parties and the broader context of the employment relationship.

The court found that the alleged acts did not constitute prohibited reasons under the Fair Work Act 2009. Furthermore, it concluded that Buckingham's actions were not unreasonable, thereby dismissing the respondents' application for costs. This decision underscores the importance of adhering to the legislative framework when addressing claims of prohibited conduct in employment matters.

The orders of the court were that the application by the first and second respondents for the costs of their application filed on 21 September 2007 was dismissed. This outcome reflects the court's determination that the respondents were not entitled to the requested costs based on the findings regarding the prohibited reasons and the reasonableness of Buckingham's actions.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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