FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Cheung v Aust Landing Group Pty Ltd (No 2) [2024] FedCFamC2G 457
File number(s): MLG 2683 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 23 May 2024 Catchwords: FAIR WORK – Costs – Whether s. 570 of the Fair Work Act applies to a proceeding in which the court decides that it does not have jurisdiction as to one of the claims in the proceeding – Section 570 applies – Where proceedings not instituted without reasonable cause – Where Court not satisfied that a party’s unreasonable act or omission caused the other party to incur costs – No order as to costs Legislation: Fair Work Act 2009 (Cth) ss. 117, 323, 570 Cases cited: Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392
Australian Workers Union v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23
Construction, Forestry, Mining and Energy Union v Clarke [2008] 170 FCR 574; FCAFC 143
Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342, [2018] FCAFC 146
Fencott v Muller (1983) 152 CLR 570
Fountain v Alexander (1982) 150 CLR 615
Geneff v Peterson (1986) 19 IR 40
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221, [2015] FCAFC 20,
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 2 May 2024 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Jewell Hancock Employment Lawyers Solicitor for the Respondents: Jiangty Law ORDERS
MLG 2683 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANDREW CHEUNG
Applicant
AND: AUST LANDING GROUP PTY LTD
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
23 MAY 2024
THE COURT ORDERS THAT:
1.There is no order as to costs.
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 CHAMPION:
INTRODUCTION AND SUMMARY
On 28 March 2024 I delivered reasons and made orders dismissing the application in the principal judgment (Cheung v Aust Landing Group Pty Ltd [2024] FedCFamC2G 278) (Principal Judgment; PJ). I reserved the question of costs.
In due course, the Respondents sought an order that the Applicant “pay 50% of their costs in circumstances where two of the three claims advanced by the Applicant were not within the jurisdiction of the Court”.
The Applicant submits that…
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Details
- Case
- [2024] FedCFamC2G 457
- Decision Date
CaseChat Overview and Summary
Cheung v Aust Landing Group Pty Ltd (No 2) involves a dispute regarding employment claims brought by the Applicant against the Respondents under the Fair Work Act 2009 (Cth) and an employment contract. The Applicant alleged non-payment of an agreed annual salary, improper termination of employment, and sought repayment of expenses and a loan. The Respondents argued that two of the Applicant's claims were outside the court's jurisdiction, a contention the Applicant did not contest. The case was before the court to determine the appropriate costs order in light of the Applicant's unsuccessful claims. The primary legal issue was whether section 570 of the Fair Work Act, which governs costs in employment proceedings, justified an order for the Applicant to pay the Respondents' costs. Section 570 allows for costs to be awarded only if the court is satisfied that the proceedings were instituted vexatiously or without reasonable cause, or if the party's unreasonable act or omission caused the other party to incur costs, among other conditions.
The court examined whether the Applicant's claims were instituted without reasonable cause or vexatiously, and whether any unreasonable act or omission led to the Respondents incurring costs. It found that while the Applicant's Loan Agreement claim was not within the court's jurisdiction, it did not consider this claim to have been instituted vexatiously or without reasonable cause. Similarly, the abandonment of the Expenses Agreement claim meant the court did not need to address its jurisdictional status. The court concluded that the Applicant had not acted unreasonably, and therefore, there was no basis to order the Applicant to pay the Respondents' costs. Consequently, the court determined that no order for costs should be made.
The court's decision was based on its assessment of the Applicant's conduct and the nature of the claims, leading to the conclusion that the conditions specified in section 570 of the Fair Work Act were not met. As a result, the final order was that there be no order as to costs, reflecting the court's view that neither party's actions warranted an adverse costs order.
The court examined whether the Applicant's claims were instituted without reasonable cause or vexatiously, and whether any unreasonable act or omission led to the Respondents incurring costs. It found that while the Applicant's Loan Agreement claim was not within the court's jurisdiction, it did not consider this claim to have been instituted vexatiously or without reasonable cause. Similarly, the abandonment of the Expenses Agreement claim meant the court did not need to address its jurisdictional status. The court concluded that the Applicant had not acted unreasonably, and therefore, there was no basis to order the Applicant to pay the Respondents' costs. Consequently, the court determined that no order for costs should be made.
The court's decision was based on its assessment of the Applicant's conduct and the nature of the claims, leading to the conclusion that the conditions specified in section 570 of the Fair Work Act were not met. As a result, the final order was that there be no order as to costs, reflecting the court's view that neither party's actions warranted an adverse costs order.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons set out below, I will order that there be no order as to costs.BACKGROUND In the substantive proceeding the Applicant brought employment claims for breach of the Fair Work Act 2009 (Cth) (FW Act) and breach of an employment contract. He claimed that he had not been paid an agreed annual salary of $150,000 under an oral contract. As to the alleged short-payment of his salary, he brought a statutory claim under s. 323 of the FW Act and contractual claims. Further, he claimed that his employment had been terminated in breach of an implied contractual term of reasonable notice or, alternatively, in breach of the notice requirements of s. 117 of the FW Act. In addition, a brought a claim that he was entitled to repayment of expenses of $112,794.73 pursuant to an “Expenses Agreement” (PJ, [137]). He abandoned the Expenses Agreement claim at the commencement of the trial. He brought another claim that he was entitled to repayment of a loan of $396,214.46 under a “Loan Agreement”. The Respondents are referring to the “Expenses Agreement” claim and the “Loan Agreement” claim when they contend that “2 of the 3 claims advanced by the Applicant were not within the jurisdiction of the Court” (RCS, [1]). I found in the primary judgment that the Loan Agreement claim was a severable claim not within the jurisdiction of the court (PJ, [191]–[192]). On the basis that I was wrong as to that jurisdictional issue I found that, in any event, the Applicant had not proved his Loan Agreement claim on the facts (PJ, [13]; [228]). Because the Applicant abandoned the Expenses Agreement claim at the start of the trial, it was not necessary for the court to determine whether the Expenses Agreement claim was within or outside jurisdiction.THE COSTS APPLICATION Because the Applicant invoked the jurisdiction of the court under the FW Act, it is necessary to consider s. 570 of the FW Act on any costs application.Section 570 Section 570 of the FW Act is in the following terms:570 Costs only if proceedings instituted vexatiously etc.(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (2) The party may be ordered to pay the costs only if:(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. Section 570(1) provides that the usual position is that each party will pay its own costs in proceedings “in relation to a matter arising under” the FW Act. Section 570 reflects the important aim of promoting access to justice by ensuring the spectre of adverse costs orders not discourage applicants with genuine grievances from commencing or continuing proceedings (Ryan v Primesafe (2015) 323 ALR 107; [2015] FCA 8, [64] (Mortimer J, as she then was).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 28 March 2024 I delivered reasons and made orders dismissing the application in the principal judgment (Cheung v Aust Landing Group Pty Ltd [2024] FedCFamC2G 278) (Principal Judgment; PJ). I reserved the question of costs. In due course, the Respondents sought an order that the Applicant “pay 50% of their costs in circumstances where two of the three claims advanced by the Applicant were not within the jurisdiction of the Court”. The Applicant submits that the appropriate order is that there be no order as to costs. This costs judgment ought to be read together with the Principal Judgment. In the Principal Judgment, in the event either party sought a costs order, I directed the parties to file short written submissions (PJ, [235]). Each party filed a written outline (Respondent’s Costs Submission or RCS; Applicant’s Cost Submissions or ACS). As a result, and as foreshadowed in the primary judgment, in the absence of either party seeking an oral hearing, I will determine the costs application on the papers. For the reasons set out below, I will order that there be no order as to costs.BACKGROUND In the substantive proceeding the Applicant brought employment claims for breach of the Fair Work Act 2009 (Cth) (FW Act) and breach of an employment contract. He claimed that he had not been paid an agreed annual salary of $150,000 under an oral contract. As to the alleged short-payment of his salary, he brought a statutory claim under s. 323 of the FW Act and contractual claims. Further, he claimed that his employment had been terminated in breach of an implied contractual term of reasonable notice or, alternatively, in breach of the notice requirements of s. 117 of the FW Act. In addition, a brought a claim that he was entitled to repayment of expenses of $112,794.73 pursuant to an “Expenses Agreement” (PJ, [137]). He abandoned the Expenses Agreement claim at the commencement of the trial. He brought another claim that he was entitled to repayment of a loan of $396,214.46 under a “Loan Agreement”. The Respondents are referring to the “Expenses Agreement” claim and the “Loan Agreement” claim when they contend that “2 of the 3 claims advanced by the Applicant were not within the jurisdiction of the Court” (RCS, [1]). I found in the primary judgment that the Loan Agreement claim was a severable claim not within the jurisdiction of the court (PJ, [191]–[192]). On the basis that I was wrong as to that jurisdictional issue I found that, in any event, the Applicant had not proved his Loan Agreement claim on the facts (PJ, [13]; [228]). Because the Applicant abandoned the Expenses Agreement claim at the start of the trial, it was not necessary for the court to determine whether the Expenses Agreement claim was within or outside jurisdiction.THE COSTS APPLICATION Because the Applicant invoked the jurisdiction of the court under the FW Act, it is necessary to consider s. 570 of the FW Act on any costs application.Section 570 Section 570 of the FW Act is in the following terms:570 Costs only if proceedings instituted vexatiously etc.(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (2) The party may be ordered to pay the costs only if:(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings.
Ratio Decidendi
Legal Principle Established
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