Buksh v Holmesglen Institute (No 3) - [2022] FedCFamC2G 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Buksh v Holmesglen Institute (No 3) [2022] FedCFamC2G 339

File number(s): MLG 1802 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 13 May 2022

Catchwords: INDUSTRIAL LAW – Application for costs in circumstances where applicant failed to beat offers of compromise – whether offers to compromise can operate given terms of s 570 Fair Work Act – whether failure to accept offers of settlement was imprudent – court finding that applicant entitled to proceed to judgment – costs application dismissed.

Legislation:
Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:
Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112

Heldberg v Rand Transport (1986) Pty Ltd (No 2) [2018] FCA 1224

Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20

Division: Division 2 General Federal Law

Number of paragraphs: 30

Date of last submission/s: 4 May 2022

Date of hearing: 22 April 2022

Place: Melbourne

The Applicant: The Applicant is self-represented

Counsel for the Respondent: Mr Denton

Solicitor for the Applicant: MinterEllison
ORDERS

MLG 1802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BEN BUKSH

Applicant

AND:
HOLMESGLEN INSTITUTE

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
1.The respondent’s application for costs be dismissed.
2.Each party bear their own costs of the application.

THE COURT NOTES THAT
A.These orders do not operate to set aside the order made on 26 July 2021 (stayed until final judgment) for the applicant to pay respondent’s costs fixed at $5,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT

At the conclusion of the trial in this matter, the respondent indicated a desire to make an application for costs. I had hoped to deal with the matter on the day, but it became impracticable to do so. I furthermore formed the view that since the outcome of such an application could be very significant for Mr Buksh, it was more appropriate to proceed by way of written submissions, which is what has occurred.
The respondent's written submissions in support of its application for costs note that on 26 July 2021, the court ordered Mr Buksh to pay the respondent's costs of an application in a case fixed at $5000, stayed pending final judgment. The submissions also noted that on 22 April 2022, the court imposed pecuniary…

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: [2022] FedCFamC2G 339
Decision Date

CaseChat Overview and Summary

The case of Buksh v Holmesglen Institute (No 3) [2022] FedCFamC2G 339 involved an application by the Holmesglen Institute for costs against the applicant, Ben Buksh. The matter arose from an industrial law dispute concerning Buksh's employment termination and related claims. The Federal Circuit and Family Court of Australia (Division 2) was tasked with deciding whether Buksh's failure to accept offers of compromise rendered him liable for indemnity costs under the Fair Work Act 2009 (Cth) and the Federal Court Rules 2011 (Cth).

The court had to determine the extent to which offers of compromise, made in accordance with r 25.14 of the Federal Court Rules, could operate within the constraints of s 570 of the Fair Work Act, which generally restricts the court's discretion to order costs in proceedings arising under the Act. The court also needed to assess whether Buksh's rejection of these offers constituted an unreasonable act or omission within the meaning of s 570(2)(b) of the Act.

Judge Burchardt, in delivering the judgment, found that the respondent's reliance on the offers of compromise to claim indemnity costs was misconceived. The court concluded that the offers themselves were flawed as they implied they could override s 570 of the Act. Furthermore, Buksh's rejection of the offers could not be deemed unreasonable given his genuine belief in his case, the commercial nature of the offers, and his lack of legal representation at the time of some of the offers. The court emphasised that s 570 should be interpreted broadly to allow parties to litigate without fear of adverse costs orders. Consequently, the court dismissed the application for costs.

The final orders of the court were that the respondent's application for costs be dismissed, and each party bear their own costs of the application. The court did not set aside the previous order for Buksh to pay the respondent's costs of an earlier application, which remained stayed pending the final judgment.

Orders