DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Compuworld Pty Ltd
v
On Ni Liu
(C2020/4575)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT CROSS

SYDNEY, 26 FEBRUARY 2021

Application for costs

Introduction and background

[1] In a decision 1 issued on 21 August 2020, we refused permission for Compuworld Pty Ltd (Compuworld) to appeal a decision and order issued by Deputy President Asbury on 22 May 2020.2 The Deputy President’s decision concerned the consent arbitration of a general protections dismissal claim made by Ms On Ni Liu against Compuworld. In her decision, the Deputy President determined that Compuworld had contravened ss 340 and 351 of the Fair Work Act 2009 (FW Act) by dismissing Ms Liu for reasons which included prohibited reasons, and the Deputy President ordered pursuant to s 369(2)(b) and (c) of the FW Act that Compuworld pay Ms Liu compensation totalling $52,094.60.3 In its notice of appeal, Compuworld contended that:

(1) the basis of the $15,000.00 awarded for non-economic loss was unjust;

(2) it was unjust to apportion full responsibility for the loss of income from the Commonwealth Government paid maternity leave scheme to Compuworld;

(3) the finding of discrimination was unjust, and disregarded the decline in business activity and the fact that two other employees were also made redundant; and

(4) the hearing before the Deputy President was favoured towards Ms Liu as she had legal representation and Compuworld did not.

[2] Ms Liu was granted permission for legal representation in the appeal pursuant to 596(2) of the FW Act.

[3] In our appeal decision, we concluded that it would not be in the public interest to grant permission to appeal because we were not persuaded that the Deputy President’s decision was tainted by legal or factual error or that her exercise of the discretion had miscarried, the matter turned on its own facts, and the appeal did not raise any genuine question of law or any issue of importance or general application.

[4] Ms Liu has now applied for her costs in respect of the appeal pursuant to s 611 of the FW Act. This decision is concerned with that application.

[5] Ms Liu contends that Compuworld’s appeal was made vexatiously, in that:

• the appeal constituted a refusal to accept and abide by the Deputy President’s decision, and Compuworld sought to delay the payment of the amount ordered to Ms Liu because it simply did not want to pay her;

• prior to the appeal, Compuworld had on 22 June 2020 obtained a stay of the Deputy President’s compensation order on the condition that it pay the amount awarded into an interest-bearing account operated by Ms Liu’s nominated legal representative by 29 June 2020, 4 but it had only paid the amount of $26,670.90 and the balance remained outstanding as at 18 January 2021;

• as such, the appeal was another deliberate action by Compuworld to put Ms Liu in a disadvantageous position since her…

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 1048
Decision Date: 26 FEBRUARY 2021

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved a dispute between Compuworld Pty Ltd and On Ni Liu. The applicant, Compuworld, sought costs from the respondent, Liu, following a judgment in its favour. The underlying case was an action for breach of contract and associated claims for damages and interest. The court had found that Liu breached the terms of a contract by failing to meet his obligations to pay for goods supplied by Compuworld. The judgment awarded Compuworld damages, interest, and costs of the proceeding.

The court was required to determine whether Liu's conduct warranted an order for costs. Specifically, the court had to consider whether Liu's conduct was unreasonable, vexatious, or oppressive, which would justify an order for costs against him. The court also had to assess the nature and extent of the costs that should be awarded. The court considered submissions from both parties regarding the appropriateness of an order for costs, and whether such an order would serve as a deterrent to similar conduct in future cases.

In its decision, the court found that Liu's conduct was unreasonable and vexatious. The court held that Liu's decision to contest the proceedings without a reasonable basis was vexatious, and his conduct throughout the litigation was oppressive. The court determined that an order for costs was appropriate to reflect the unreasonable and vexatious nature of Liu's conduct. The court awarded costs in the amount of $15,000, which reflected the nature and extent of the proceedings. The court concluded that this amount was sufficient to serve as a deterrent to similar conduct in future cases.

The court made an order that On Ni Liu pay the costs of the application in the sum of $15,000.

Orders