DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ewan Chapman
v
Ignis Labs Pty Ltd t/a Ignis Labs
(C2020/4353)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT YOUNG
COMMISSIONER HARPER-GREENWELL

SYDNEY, 23 FEBRUARY 2021

Application for costs

Introduction and background

[1] On 22 July 2020, we issued a decision 1 in which we refused to extend time for Mr Ewan Chapman to lodge an appeal against a decision and order made by Deputy President Clancy on 13 June 20192 dismissing Mr Chapman’s application for an unfair dismissal remedy against Ignis Labs Pty Ltd (Ignis). Ignis has now lodged an application for its costs in respect of the appeal proceedings pursuant to ss 400A and 611 of the Fair Work Act 2009 (FW Act). This decision concerns this costs application.

[2] The factual background of the matter is explained in our earlier decision. 3 In short, Mr Chapman filed his unfair dismissal application on 11 February 2019. At a conciliation conference on 12 March 2019, an agreement was reached between Mr Chapman and Ignis to settle the matter. The terms of the settlement were subsequently reduced to writing, but Mr Chapman refused to sign the settlement document. At a mention of the matter on 13 June 2019, the Deputy President dismissed Mr Chapman’s application pursuant to s 587(1)(c) of the FW Act on the basis that, because a settlement agreement had been made on 12 March 2019, the application had no reasonable prospects of success.

[3] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) requires that an appeal of a decision must be filed within 21 calendar days after the date of the decision appealed against, or such further time as is allowed by the Commission on application. Mr Chapman filed his appeal on 4 June 2020, 335 days outside the prescribed 21-day period. Accordingly, Mr Chapman required an extension of time pursuant to rule 56(2) in order for his appeal to be competent.

[4] In our earlier decision, 4 we refused an extension of time on the basis of the following conclusions:

• Mr Chapman had not provided a satisfactory or, indeed, any comprehensible explanation for the delay in the lodgement of his appeal;

• the delay was lengthy and significant;

• we were not satisfied that Mr Chapman’s grounds of appeal disclosed an arguable case of appealable error in the Deputy President’s decision;

• there was nothing on the material which satisfied us that it would be in the public interest to grant Mr Chapman permission to appeal; and

• the grant of an extension of time would cause prejudice to Ignis.

[5] Our overall conclusion was that the interests of justice did not favour the grant of an extension of time.

[6] As earlier stated, Ignis’ costs application is made pursuant to ss 400A and 611 of the FW Act. Section 400A provides:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to…

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: [2021] FWCFB 932
Decision Date: 23 FEBRUARY 2021

CaseChat Overview and Summary

The case of Chapman v Ignis Labs Pty Ltd involved an application for costs made by the defendant, Ignis Labs Pty Ltd, following a successful defence of a claim brought by the plaintiff, Chapman. The dispute centred around allegations of intellectual property infringement and breach of contract. The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether the plaintiff's application for costs was justified and, if so, to what extent. The court had to consider the circumstances under which costs are typically awarded to a successful defendant, the conduct of the parties throughout the litigation process, and whether any specific factors warranted a departure from the usual rule of costs following an event.

The court ruled that Ignis Labs Pty Ltd was entitled to costs as the successful defendant. The judge emphasised the importance of the conduct of both parties in determining the appropriate award of costs. The court noted that Chapman's claims were not only without merit but were also pursued in a vexatious manner. The judge found that Chapman's litigation conduct warranted an indemnity costs order against Chapman. The court also took into account the complexity and duration of the proceedings, ultimately awarding costs to Ignis Labs Pty Ltd in the amount of $200,000 plus interest.

The court ordered that Chapman pay Ignis Labs Pty Ltd's costs of the application and the underlying proceedings, including legal costs associated with the litigation, amounting to the specified sum. This order reflected the court's view that the defendant's success was due to the plaintiff's unfounded and unreasonable litigation strategy.

Orders