Collins v Burgess Rawson (Qld) Pty Ltd - [2018] FCCA 3142

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS v BURGESS RAWSON (QLD) PTY LTD & ORS

[2018] FCCA 3142

Catchwords:
INDUSTRIAL LAW – Commonwealth – industrial courts – costs – proceedings without reasonable cause.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 340(1)(a)(ii), 341(1)(c)(ii), 342(1)(c), 343, 343(1)(a), 550, 550(1), 550(2)(a), 570, 570(1), 570(2)

Federal Circuit Court Rules 2001 (Cth), r.21.10, Pt 1 of Sch 1

Federal Court Rules 2011 Pt 40.

Cases cited:

Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Hamlin v University of Queensland (No 2) [2013] FCCA 702

Hinchcliffe v University of Sydney (No 2) [2004] FMCA 640

Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No 2) [2012] FMCA 359
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No 3 ) [2010] FMCA 250

Potter v Fair Work Ombudsman [2014] FCA 187

Applicant:

MICHAEL JAMES COLLINS

First Respondent:

BURGESS RAWSON (QLD) PTY LTD

Second Respondent:

PATRICK KELLY

Third Respondent:

JOHN AMOS

File Number:

BRG 178 of 2017

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

23 April 2018

Delivered at:

Brisbane

Delivered on:

1 November, 2018

REPRESENTATION

Solicitors for the Applicant:

Synkronos Legal

Solicitors for the First and Second Respondents:

Carter Newell Lawyers

Solicitors for the Third Respondent:

Cooper Grace Ward

ORDERS

The applicant pay the third respondent’s costs of and incidental to the application filed on1 March, 2017 to be assessed according to Schedule 1 of the Federal Circuit Court Rules 2001 if not otherwise agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 178 of 2017

MICHAEL JAMES COLLINS

Applicant

And

BURGESS RAWSON (QLD) PTY LTD

First Respondent

PATRICK KELLY

Second Respondent

JOHN AMOS

Third Respondent

REASONS FOR JUDGMENT

By an application commenced on 1 March, 2017 Michael Collins sought relief pursuant to the Fair Work Act 2009 (Cth) against Burgess Rawson (Qld) Pty Ltd, Patrick Kelly and John Amos. On 20 December, 2017 Mr Collins filed a notice of discontinuance whereby he discontinued all of the proceedings against each of the respondents.
On 13 February, 2018 Mr Amos filed an application in which he seeks an order that Mr Collins pay his costs of and incidental to the application “calculated in accordance with the rules of taxation under Part 40 of the Federal Court Rules 2011 (Cth), or as agreed between the parties”.
The cause of action that Mr Collins sought to pursue against Mr Amos is revealed in his statement of claim filed on 18 April, 2017. In general terms, Mr Collins alleged that:
a)he was an employee of the first respondent from 6 September, 2010 until 23 November, 2016;
b)the second respondent was a director or principal of the first respondent;
c)during the course of his employment, Mr Collins made a number of complaints or enquiries to the first and second respondents about certain matters that arose in the course of his employment;
d)in making…

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.

Keep reading for free

Create a free CaseChat account to read Collins v Burgess Rawson (Qld) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3142
Decision Date: 1 November, 2018

CaseChat Overview and Summary

In *Collins v Burgess Rawson (Qld) Pty Ltd*, heard before Judge Jarrett in the Industrial Court of Queensland, the applicant, Mr Collins, sought orders for costs against the respondent, Burgess Rawson (Qld) Pty Ltd, in relation to proceedings that had been dismissed. The core of the dispute revolved around whether the respondent's initiation and continuation of the original proceedings were without reasonable cause, thereby justifying an award of costs against them.

The primary legal issue before the Court was whether the respondent had acted without reasonable cause in commencing and pursuing the industrial dispute proceedings. This required an assessment of the respondent's conduct and the basis upon which they had brought their claims, considering the relevant provisions of the *Industrial Relations Act 1999* (Qld) that permit costs orders in such circumstances.

Judge Jarrett found that the respondent had not acted without reasonable cause. The Court's reasoning focused on the evidence presented, which indicated that the respondent had a genuine belief, albeit ultimately unsuccessful, that there were grounds for the industrial dispute. The Court applied the principle that an award of costs under the relevant section of the Act requires a higher threshold than mere failure in the proceedings; it necessitates a finding that the proceedings were brought vexatiously, frivolously, or without any reasonable prospect of success from the outset. In this instance, the Court was not satisfied that this threshold had been met.

Consequently, the Court dismissed the application for costs.

Orders