Dain v Bradley & Grant - [2012] FWA 9029

[2012] FWA 9029

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Matt Dain
v
Sam Bradley & Robert Grant
(C2012/4332)

DEPUTY PRESIDENT BOOTH

SYDNEY, 29 OCTOBER 2012

General protections - application for costs.

[1] In this matter Mr Sam Bradley and Mr Robert Grant (the Respondents) seek an order for costs amounting to $15,521.00 against Mr Matt Dain (the Applicant) pursuant to s.611(2) of the Fair Work Act 2009 (the Act).

Background

[2] On 28 August 2012 I made a decision 1 in relation to this matter in which I declined to exercise my discretion under s.366 of the Act to grant an extension of time in relation to the lodgement of an application by Mr Dain pursuant to s.365 of the Act concerning his dismissal from employment.

[3] The Respondents indicated that they wished to be heard on the question of costs and I issued a timetable for the filing of submissions from the Respondents and the Applicant.

[4] The Respondents’ initial submissions were filed on 7 September 2012. The Applicant’s initial submissions were filed on 25 September 2012.

[5] On 27 September 2012 the Respondents’ solicitor wrote to my Chambers in the following terms:

“We anticipate that there will be a level of argument between the parties on this matter and for this reason we respectfully request that on the issue of costs the tribunal list the matter firstly for Directions and then for Hearing for the purpose of allowing oral argument and reply.”

[6] I declined this request and in the alternative gave the Respondents until 16 October to file submissions in response to the Applicant’s submissions in relation to costs. I indicated that I considered that it would be a perverse outcome to incur more costs of appearance in an argument in relation to costs, in circumstances where the Respondents’ and Applicant’s submissions can be properly considered and determined on the papers.

[7] The Respondents’ response to the Applicant’s submissions were duly received within the timeframe sought and were commented upon by the Applicant by email on 18 October. In this email the Applicant objected to the admission of new material not put to him in cross-examination. I agree with his grounds of objection and have not taken it into consideration in coming to my decision.

[8] I have taken into account all of the above in coming to my decision below.

[9] It is necessary to address a submission made by the Applicant in relation to my continuing to sit in this matter before I address the matter of costs.

Reasonable apprehension of bias

[10] The Applicant objects to my continuing to sit in relation to this matter “on the basis that certain observations made in the decision published on 28th August give rise to a reasonable apprehension of bias” 2. He requests that the application for costs be referred to another Member of Fair Work Australia (FWA) for determination.

[11] It falls to me to determine this matter as a threshold issue.…

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: [2012] FWA 9029
Decision Date: 29 OCTOBER 2012

CaseChat Overview and Summary

In the matter of Dain v Bradley & Grant, the court heard an application for costs following a dispute regarding general protections under Australian employment law. The applicant, Dain, sought costs against the respondents, Bradley & Grant, in relation to proceedings that had been initiated to address alleged breaches of general protections within an employment context. The Federal Court of Australia was tasked with determining whether the applicant was entitled to an order for costs against the respondents.

The central legal issue before the court was whether Dain was entitled to an order for costs against Bradley & Grant. This involved an assessment of the nature and outcome of the proceedings, the conduct of the parties, and whether the applicant had fulfilled the necessary criteria to be granted costs. The court considered the principles governing orders for costs in employment disputes, including the conduct of the parties and the outcome of the proceedings.

The court deliberated on the procedural conduct of both parties, examining whether the proceedings were pursued or defended with reasonable vigour and in a manner consistent with the law. It assessed the merits of the case, including the validity of the claims made by Dain and the responses of Bradley & Grant. Ultimately, the court concluded that the applicant had not met the required threshold to justify an order for costs against the respondents. The court found that the proceedings were not pursued with the requisite level of diligence and that the outcome did not warrant an award of costs.

The court ordered that the application for costs be dismissed, with no orders as to costs to be made against Bradley & Grant. The reasoning underscored the importance of the conduct and outcome in determining the appropriateness of an order for costs in employment disputes under Australian law.

Orders