Chileshe v E and M Business Trust

[2014] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILESHE v E & M BUSINESS TRUST [2014] FCCA 1381

Catchwords:
INDUSTRIAL LAW – Alleged underpayment of wages and breaches of clauses 16 and 26.2 of the Cleaning Services Award 2010 – consideration of Applicant’s classification under the Award – Applicant found to be properly classified as a level CSE 2 employee – no breaches of Award found – costs sought by Respondent – consideration of a proceeding instituted “without reasonable cause” – costs awarded against Applicant.

Legislation:

Fair Work Act 2009, s.570(2)(a)

Federal Circuit Court Rules 2001 (Cth), Schedule 1

Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481
Australian Workers’ Union v Abbey (1939) 40 CAR 494
Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
City of Wanneroo v Holmes (1989) 30 IR 362
Geneff v Peterson (1986) 19 IR 40
George A Bond and Co Ltd [in liq] v McKenzie [1929] AR (NSW) 498
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
Imogen Pty Ltd v Sangwin (1996) 70 IR 254
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Re:Clothing Trades Award (1950) 68 CAR 597

Cleaning Services Award 2010 [MA000022], cls.16, 26.2, Schedule D – Classifications
Fair Work Australia, Determination – Annual Wage Review 2010-11, [MA000022  PR509053]

Applicant: RISYAD CHILESHE

Respondent: E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP

File Number: MLG 1220 of 2013

Judgment of: Judge Whelan

Hearing date: 20 March 2014

Date of Last Submission: 20 March 2014

Delivered at: Melbourne

Delivered on: 1 July 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr J Hooper

Solicitors for the Respondent: Kelly Workplace Lawyers

ORDERS

1. The application filed on 5 August 2013 is dismissed.

2. The Applicant pay the Respondent’s costs in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1220 of 2013

RISYAD CHILESHE

Applicant

And

E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application by the Applicant, MR RISYAD CHILESHE

   
   

   (“the Applicant”), in which he claims that he was underpaid by the Respondent, E & M BUSINESS TRUST T/A YELLOW BRICK ROAD SERVICE GROUP (“the Respondent”).

2. The Applicant claims two areas of underpayment:

   ·He claims that his classification level under the Cleaning Services Award 2010 [MA000022] (“the Award”), should have been Cleaning Services Employee Level Three (“CSE 3”) and, on that basis, he should have been paid an hourly rate of $19.30 per hour rather than $18.00 per hour. 

   ·He further claims that he was entitled to two paid 10-minute rest breaks per day which he did not take and claims that he should be compensated for these at the rate of time and a half or 30 minutes per day.

3. The Respondent claims that the Applicant was properly classified as a Cleaning Services Employee Level Two (“CSE 2”) and that he was paid by the Respondent more than the award rate for that classification level which, at the relevant time, was $17.14 per hour. Further, the Respondent claims that the Applicant was permitted and expected to take paid rest breaks during the working day between jobs.

The Evidence

1. The Applicant commenced working for the Respondent on

   
   

   12 December 2011. At the time, he had never worked in the carpet cleaning industry before and had no training in the industry. At the commencement of his employment, the Applicant spent one week with an experienced operator, MR LEIGH MCCRABB (“Mr McCrabb”), and worked under his supervision. The Applicant served a probationary period of three months. His employment was terminated on

   
   

   30 April 2012. During February and March 2012 he undertook some training at his own initiative. He was told by MR EVAN PETRIDIS (“Mr Petridis”), a director of the Respondent, that they would have sent him for training with a different training provider.

2. The Applicant agreed that the main part of his work involved the cleaning of carpets and upholstery at different domestic and commercial premises. He would be given a schedule of jobs that clients had booked with the Respondent. The Applicant would be provided with the schedule in advance and would leave from home in a van supplied by the Respondent who also supplied all of the equipment and products needed to perform the work. Typically, there would be three or four jobs per day booked for 8.00 a,m., 10.00 a.m., 12.00 noon and 2.00 p.m. After the last job, the Applicant would drive the van home.

3. The Applicant claimed that he was the sole technician on the majority of the jobs he undertook. Mr Petridis disputed this saying that, on

   
   

   30-60% of the jobs, the Applicant worked with either himself or

   
   

   MR MAURIZIO MASONI (“Mr Masoni”), also a Director of the Respondent, for part of the job and that one of them inspected the work when it was finished. Mr Petridis denied that the Applicant worked on his own 60-70% of the time. The Applicant denied that Mr Petridis or

   
   

   Mr Masoni ever checked his work.

4. The Applicant claimed that he was told by Mr McCrabb to take his breaks as he drove between jobs. He stated that the jobs were so close together that “there was no time for a 10 minute break”.[1] He stated that 25 or 30% of the time he was late to jobs. He agreed that this might have been because he was new to the work and was slow at cleaning in the beginning. He also stated that the Respondent did not leave enough time between jobs. When it was put to him that he could have taken a “10-minute breather”,[2] his response was, “But I didn’t”.[3]

   [1] Transcript of proceedings, 20 March 2014, p.7 at line 7.

   [2] Ibid, p.8 at line 34.

   [3] Ibid, line 35.

5. The Applicant stated that he was told by Mr McCrabb that if he finished a job early, he should call the next customer and arrange to go there early. The Applicant agreed that, when he worked with an employee named JACK (“Jack”), Jack constantly took breaks. He stated that because Jack was “a very, very heavy smoker . . . he needed to take breaks”.[4]

   [4] Ibid, p.11 at lines 2-3.

6. With respect to the rate of pay for a CSE 3 employee, the Applicant stated that he believed it was $19.30 per hour. It was put to him that this only applied to hours before 7.00 a.m. The Applicant agreed that he did not start work before 7.00 a.m. It was put to him that the relevant award rate for a CSE 3 employee was $18.06 per hour, and $17.14 for a CSE 2 employee. The Applicant agreed that if he was correctly classified at level CSE 2 of the Award, there was no award underpayment. The Applicant agreed that, even when he started, he was not paid at the rate of $16.57 which was the relevant rate for a Cleaning Services Employee Level One (“CSE 1”).

7. The Applicant agreed that he was not a mechanic and did not maintain the van. He stated that he did maintain the equipment which he agreed was not a complex task. 

8. The Applicant agreed that, in October 2013, the Respondent had reviewed past payments made to him and he was paid another $371.00. He stated that he did not know what the money was for.

9. The Applicant agreed that when he arrived at a site he would look at what had to be cleaned. He might make some adjustments to the machine to make sure it had the right amount of water and chemicals and then clean the carpet, couches or drapes which were required to be cleaned. He agreed that the descriptors, “[c]arpet cleaning”,[5] “[o]perating steam cleaning and pressure washing equipment”[6] and “[c]ustomer or public relations duties as required”[7] were a pretty good description of his role. He also agreed that “working from complex instructions”[8] and being “responsible for ensuring the quality of [his] own work”[9] were part of his role.

   [5] Transcript of proceedings, 20 March 2014, p.30 at lines 21-22.

   [6] Ibid at lines 24-25.

   [7] Ibid at lines 29-30.

   [8] Ibid, p.31 at lines 1-3.

   [9] Ibid at line 16.

10. The Applicant conceded that he made no managerial or strategic decisions in relation to the company and was not involved in training other staff. He maintained that he was responsible for supervising Jack when he worked with him. He agreed that Jack had been cleaning carpets for a lot longer than he had. He stated that if anyone came in his van he was responsible for them. When they did commercial work, he supervised the quality of the work on the floor. He also stated that he handled safety matters and raised these with management.

11. The Applicant stated that spot removing was “more technical”[10] work than ordinary carpet, upholstery or leather cleaning and required more know-how and experience. Each job had to be measured and quoted and the customer had to agree to the final price. An invoice was presented to the customer at the end of the job and money collected either in cash or by credit card.

    [10] Ibid at p.59 at line 22.

12. In his evidence, Mr Petridis stated that jobs were booked between

    
    

    8.00 a.m. and 1.00 or 2.00 p.m. The first job would start at 8.00 a.m. He worked in the South Yarra, North Carlton and Brunswick areas. After the first job he would stop and have a coffee break. Mr Petridis stated that he had two companies with 10 employees and he had never been told by any employee that they were not allowed to take a break. On some larger jobs they would stop part way and have a break. On one job he did with the Applicant, they stopped at his house for a coffee break.

13. Mr Petridis stated that during the Christmas break they had a job in a 10-storey building. The Applicant worked with another employee, AMOS (“Amos”) and Mr Petridis would travel between each floor and see that the work was satisfactory.

14. Mr Petridis stated that he would do one or two jobs himself but would otherwise float between sites and the two businesses. Either he or

    
    

    Mr Masoni would check on the jobs. One of them would meet the Applicant on a job or before and then move on to another job. He and Mr Masoni would have a copy of the Applicant’s worksheet. 

15. Mr Petridis stated that, with new clients, the office staff would give a rough quote. Before the job started they would go in and measure the rooms and a final price would be given to the client. All technicians were taught to do this. On bigger jobs, either he or Mr Masoni would also attend. 

16. Mr Petridis stated that Jack went to jobs with the Applicant because Jack did not have a driver’s licence. Jack did not need supervision. He had a lot of experience in the trade. It was put to him that the Applicant was responsible, when working with Jack, for making sure all the equipment came back and making sure all the machinery was maintained. Mr Petridis said that Jack was as well. Mr Petridis stated that the Applicant did not assist in training junior staff. All of the employees were experienced and were responsible for providing a safe work environment. 

17. Mr Petridis stated that there were probably three types of spotters they carried in the van and the neutral spotter was probably used on 80% of spots. He thought spot cleaning was at Level 2 of the Award. He agreed that the Applicant was taught how to write up an invoice.

Conclusions

1. The Award contains three classification levels which are set out in Schedule D of the Award:

   All employees will be classified according to the following classification definitions and paid as such. Provided that an employee at any level may be required within the limits of their skills and training to perform duties incidental or peripheral to their major task or tasks.

   D.1A Cleaning Services Employee Level One (CSE 1) is an employee who at the completion of their training and induction is capable of performing work within the scope of this level. Such an employee to the level of their training:

   ·is responsible for the quality of their own work subject to routine supervision;

   ·works under routine supervision either individually or in a team;

   ·exercises discretion within the level of their skills and training; and

   ·performs those tasks customarily performed by cleaners utilising a range of materials and equipment, to clean a range of surfaces in order to restore or maintain buildings in a clean and hygienic condition.

   D.1.1Indicative of the tasks which an employee at this level may perform, on a daily or periodic basis, are the following:

   ·spot cleaning of carpets and soft furnishings;

   ·operating hand held powered equipment such as blowers, vacuum cleaners and polishers;

   ·sweeping and mopping;

   ·toilet cleaning (subject to the provision of the applicable allowance in accordance with clause 17.9);

   ·rubbish collection;

   ·cleaning of private residences, and the performance of domestic work including but not limited to cleaning and washing;

   ·telephone cleaning and germ proofing;

   ·cleaning of glass, both internal and external;

   ·dusting of all hard surfaces;

   ·table bussing:

   ·undertaking tea attendant duties;

   ·collecting, servicing and maintaining shopping and/or luggage trolleys;

   ·re-arranging and re-organising furniture;

   ·routinely maintaining indoor greenery (shrubs and plants);

   ·sanitary disposal processing; and

   ·wiping and sweeping under and around seats and table tops.

   D.2A Cleaning Services Employee Level Two (CSE 2) is an employee who at the completion of training is capable of performing work within the scope of this level. Such an employee performs work above and beyond the skills of an employee at CSE 1 level and:

   ·works from complex instructions and procedures;

   ·assists in the provision of on-the-job training;

   ·works under general supervision either individually or in a team;

   ·is responsible for assuring the quality of their own work; and

   ·performs those tasks customarily performed by cleaners.

   D.2.1A CSE 2 may be required to perform any duties of a CSE 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks, for the greater part of each day or shift:

   ·routine repair work and/or building maintenance (of a non-trade nature) in or about the facility;

   ·ordering and distribution of toilet and other requisites and cleaning materials;

   ·customer or public relations duties as required;

   ·carrying out those roles expected of a leading hand (and is paid the allowance as stipulated in clause 17.6);

   ·carpet cleaning;

   ·cleaning windows on the exterior of multi-storied buildings from swing scaffolds, boatswain’s chairs, hydraulic bucket trucks or similar devices;

   ·operating ride-on powered machinery;

   ·operating steam cleaning and pressure washing equipment;

   ·maintaining gardens, lawns and rockeries;

   ·trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading fertiliser, clearing shrubs and trimming hedges;

   ·vehicular rubbish collection and operating mobile compaction units; and

   ·specialist computer cleaning.

   D.3A Cleaning Service Employee Level Three (CSE 3) is an employee who at the completion of training performs work above and beyond the skills of an employee at CSE 2 notwithstanding the fact that a CSE 3 may be required to perform any duties of a CSE 1 or CSE 2. An employee at this level:

   ·works from complex instructions and procedures;

   ·assists in the provision of on-the-job training;

   ·co-ordinates the work of CSE 1s and CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager;

   ·is responsible for ensuring the quality of their work; and

   ·has a knowledge of the employer’s operation.

   D.3.1Indicative of the tasks which an employee at this level may perform are the following:

   ·ensuring that proper maintenance procedures for building plant and equipment are observed;

   ·arranging service calls to ensure that building plant is operating correctly;

   ·dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building;

   ·co-ordinating the work with leading hands of all building cleaners;

   ·handling routine personnel, industrial relations and health and safety matters; and

   ·being directly involved in the provision of on-the-job training.[11]

   [11] Cleaning Services Award 2010, Schedule D – Classifications, at pp.123-125.

2. At the time during which the Applicant was employed the relevant rates of pay for those classifications, as set out in a Determination (MA000022, PR509053) of Fair Work Australia[12]  were:

   [12] Fair Work Australia, Determination – Annual Wage Review 2010-11, [MA000022  PR509053]

Classification

Cleaning Service Employee

Minimum hourly rate

$

Level

16.57

Level 2

17.14

Level 3

18.06

1. The amount of $19.30 claimed by the Applicant only applied to a

   
   

   full-time CSE 3 employee working an early a.m. shift (i.e. starting after 6.00 a.m. and before 7.00 a.m. – payment for time worked to 9.00 a.m.). The Applicant also sought to rely on the “Essential Functions” contained in the “Technician Job Description” of a contract[13] offered to him by the Respondent shortly before his dismissal. 

   [13] Affidavit of Risyad Chileshe filed 5 August 2013 at Appendix 2.

2. I am not satisfied that the Applicant can rely on this contract for two reasons:

   ·First, he never agreed to the contract or signed it; and

   ·Second, I reject his submission that the contract reflected the job that he was already doing at the time of the offer.

3. The general principles for the construction of an award are as follows:

   ·If the terms of an industrial instrument are clear and unambiguous then the instrument must be interpreted in accordance with that clear and unambiguous meaning.[14]

   ·Words used in an industrial instrument should not be interpreted in a strict, technical fashion as they are often drafted by laypersons drafting words, in the context of the custom and practice within an industry, or a particular enterprise.[15]

   ·Words should be given their ordinary meaning unless to do so would provide an irrational, inconsistent or absurd result. Words should be held to mean what they say.

   ·Each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the instrument as a whole.[16]

   ·The court or tribunal should strive to give effect to the intention of the authority, which made the instrument, provided that the words can be reasonably interpreted to mean that which the authority or parties intended them to mean.[17]

   [14] Re: Clothing Trades Award (1950) 68 CAR 597.

   [15] George A Bond and Co Ltd [in liq] v McKenzie (1929) AR (NSW) 498.

   [16] Australian Workers’ Union v Abbey (1939) 40 CAR 494.

   [17] Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.

4. The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction, regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provisions under construction.  It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may be extended to:

   The entire document of which it is a part or to other documents with which there is an association”. It may also include “…ideas that gave rise to an expression in a document from which it has been taken.[18]

   [18] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at para.53.

1. It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities.[19]

   [19] City of Wanneroo v Holmes (1989) 30 IR 362.

2. Turning then to the competencies required at each of the levels in the Award, it can be seen that:

   ·At Level CSE 1, an employee is subject to “routine supervision”,[20]

   ·At Level CSE 2, an employee is subject to “general supervision [working] either individually or in a team”;[21] and

   ·At Level CSE 3, an employee “co-ordinates the work of CSE 1s and CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager.”[22]

   [20] Cleaning Services Award 2010, Schedule D – Classifications, at p.123.

   [21] Ibid at p.124.

   [22] Ibid at p.125.

3. I am satisfied that the Applicant did not co-ordinate the work of others and that he was subject to ‘general supervision’ by Mr Petridis and

   
   

   Mr Masoni.

4. At both Level CSE 2 and CSE 3 of the Award, an employee needs to be able to work from complex instructions and procedure. At both levels, an employee also needs to be able to assist in the provision of

   
   

   on-the-job training. The Applicant was not required to do this. A CSE 1 employee is capable of being responsible for the quality of their own work and, at levels CSE 2 and CSE 3 of the Award, employees are responsible for assuring the quality of their own work. A

   
   

   CSE 2 employee performs those tasks customarily performed by cleaners. A CSE 3 employee, in addition, is required to have a knowledge of the employer’s operations.

5. The indicative tasks for a CSE 1 employee include “spot cleaning of carpets and soft furnishings”.[23] At Level CSE 2, the tasks include “customer or public relations duties as required”; “carpet cleaning”; “operating steam cleaning and pressure washing equipment”; and “routine repair work”.[24] At Level CSE 3, the indicative tasks include “ensuring that proper maintenance procedures for building plant and equipment are observed”; “dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building”; “co-ordinating the work with leading hands of all building cleaners”; “handling routine personnel, industrial relations and health and safety matters”; and “being directly involved in the provision of on-the-job training”.[25]

   [23] Cleaning Services Award 2010, Schedule D – Classifications at p.123.

   [24] Ibid at p.124.

   [25] Ibid at p.125.

6. I am satisfied that the Applicant was not responsible for:

   ·Co-ordinating the work of any other employees, or

   ·Handling routine personnel, industrial relations or health and safety matters;

   ·Nor was he directly involved in the provision of on-the-job training.

7. The work the Applicant performed and the competencies he required to perform that work are most closely reflected in Level CSE 2 and, in the initial phase of his employment, were probably at Level CSE 1. On the basis of the payment he received while during the Respondent’s employ, he was not, therefore, underpaid.

8. With respect to the issue of paid breaks, I am satisfied that the Applicant was both permitted and expected to take breaks during the course of his working day. There was some flexibility about when these breaks were taken and the Applicant was not so closely supervised that he was unable to take breaks at a time that suited him and that fitted in with the work allocated to him. The Applicant was able to vary the time at which he commenced jobs by notifying the client. He was not unable to take breaks.

9. For these reasons I am satisfied that there was no breach of either clauses 16 or 26.2 of the Award.

Costs

1. The Respondent has sought costs in these proceedings on the basis of s.570(2)(a) of the Fair Work Act (“the Act”). That section provides:

   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.

   Note:     The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 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.[26]

   [26] Fair Work Act 2009 (Cth), s.570.

2. The first thing to note about s.570 of the Act is that it is cast in the form of a prohibition. A party to a proceeding is not to be ordered to pay costs incurred by the other party unless the party who instituted the proceeding did so vexatiously or without reasonable cause. The terms are not synonymous. In Attorney General (NSW) v Wentworth (1988)

   
   

   14 NSWLR 481, Roden J considered the meaning of the term “vexatious legal proceedings” and proposed the following categories:

   1.  Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   2.  They are vexatious if they are brought for collateral purposes, and not the purpose of having the court adjudicate on the issues to which they give rise.

   3.  They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.[27]

   [27] (1988) 14 NSWLR 481 at p.491.

3. In Imogen Pty Ltd v Sangwin [1996] 70 IR 254, in considering a predecessor provision to s.570 of the Act, Wilcox CJ voiced the opinion that the test for ‘without reasonable cause’ was a lower standard than ‘vexatious’. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, his Honour proposed the following:

   It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the Applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the Applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the Applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.[28]

   [28] (1992) 43 IR 257 at pp.264-265.

4. In other decisions concerning predecessor provisions to s.570 of the Act, judges have opined that:

   [the section] is based on the clear policy that a party is not to be required to pay costs in a proceeding instituted under the Act, simply because his or her version of the facts has not been accepted. [29]

   and:

   It may be difficult to satisfy the test where disputed questions of fact arise and the proceedings eventually are dismissed because the court finds facts adverse to the party instituting the proceedings.[30]

   [29] Geneff v Peterson (1986) 19 IR 40 at p.90.

   [30] Heidt v Chrysler Australia (1976) 26 FLR 257 at p.275.

5. In this case, the issues in dispute were essentially narrow in their scope:

   ·Was the Applicant responsible for supervising other staff or not?; and

   ·Was the Applicant entitled to take paid breaks during his work day?

6. With respect to the second issue, the Applicant failed to call evidence from the person who he said told him that he could not take a break except while he was driving between jobs. With respect to the first question it would appear hardly credible that, with only minimal experience, the Applicant would have been assigned to supervise a more experienced member of staff.

7. The Applicant stated that he relied on the provisions of the Award but he clearly had not considered the descriptors in Schedule D of the Award and based his claim for underpayment of wages on rates which clearly did not apply. His original application sought to re-agitate matters which had already been dealt with by the Court[31] and matters which were outside the jurisdiction of this Court. Much of his claim was struck out.

   [31] MLG739/2012, Risyad Chileshe v E & M Business trading as Yellow Brick Road.

8. Taking into account these matters and applying the cases referred to above, I am satisfied that this is a case to which s.570(2)(a) of the Act has application, on the basis that the proceedings were instituted without reasonable cause.

9. The Respondent is therefore entitled to claim costs in accordance with the scale set out in Schedule 1 of the Federal Circuit Court Rules 2001.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 1 July 2014