Dalglish v MDRN Pty Ltd (No.2) - [2014] FCCA 1969

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALGLISH v MDRN PTY LTD (No.2)

[2014] FCCA 1969

Catchwords:
COSTS – The applicant had failed in claims at Common Law in relation to breach of contract and failed in claims under the Fair Work Act 2009 – the respondent sought costs of the failed Common Law claims – whether s.570 of the Fair Work Act 2009 limits the Court’s power with respect to the costs of claims under the Common Law. The respondent also sought costs under s.570(2)(b) of the Fair Work Act 2009 – whether the particular costs and omissions were unreasonable.

Legislation:

Fair Work Act 2009 (Cth), s.570.
Federal Circuit Court of Australia Act 1999 (Cth), s.79.
Workplace Relations Act 1996 (Cth), s.824.

The Explanatory Memorandum relating to the Fair Work Bill 2008 (Cth)

Dalglish v MDRN Pty Ltd [2014] FCCA 1138
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716

Applicant:

SIMIENNA ESTHER DALGLISH

Respondent:

MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS

File Number:

BRG 264 of 2012

Judgment of:

Judge Cassidy

Hearing date:

10 June 2014

Date of Last Submission:

15 August 2014

Delivered at:

Brisbane

Delivered on:

29 August 2014

REPRESENTATION

Solicitors for the Applicant:

Milner Lawyers

Counsel for the Respondent:

Mr Merrell

Solicitors for the Respondent:

McCarthy Durie Lawyers

ORDERS

That the applicant pay 50% of the respondent’s costs in respect to the applicant’s Common Law claims.
That the applicant pay 50% of the respondent’s costs in respect of the applicant’s claim under the Fair Work Act 2009 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 264 of 2012

SIMIENNA ESTHER DALGLISH

Applicant

And

MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS

Respondent

REASONS FOR JUDGMENT

Introduction

On 10 June 2014 I delivered a judgment in the proceedings Dalglish v MDRN Pty Ltd [2014] FCCA 1138. This decision concerns the costs of those proceedings and should be read in conjunction with the reasons published on 10 June 2014.

The Material

The applicant in the substantive proceedings, Ms Simienna Esther Dalglish (“the applicant”), relied upon the following material:
a)The affidavit of Anne Milner filed 5 August 2014; and
b)The outline of submissions filed by the applicant on 5 August 2014.
The respondent in the substantive proceedings, MDRN Pty Ltd trading as McCarthy Durie Lawyers (“the respondent”), relied upon the following material:
a)The affidavit of Ian Alexander Neil filed 23 June 2014;
b)The outline of submissions filed by the respondent on 23 June 2014; and
c)The written submissions in reply filed by the applicant on 15 August 2014.

Background

The effect of the judgment on 10 June 2014 was that all of the applicant’s claims in relation to the Common Law were dismissed and the claims that she made under the Fair Work Act 2009 (Cth) were also dismissed.
The respondent seeks orders that the applicant pay 50% of the respondent’s costs of and incidental to the action in…

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: [2014] FCCA 1969
Decision Date: 29 August 2014

CaseChat Overview and Summary

In *Dalglish v MDRN Pty Ltd (No.2)*, the applicant, Dalglish, had brought claims against the respondent, MDRN Pty Ltd, alleging breach of contract at common law and also making claims under the *Fair Work Act 2009* (Cth). The applicant was unsuccessful in all of these claims. The respondent sought an order for costs in relation to the failed common law claims.

The central legal issue before Judge Cassidy was whether section 570 of the *Fair Work Act 2009* (Cth) operated to limit the Court's power to award costs in respect of the common law claims that had been brought alongside the statutory claims. Additionally, the respondent sought costs under section 570(2)(b) of the *Fair Work Act 2009* (Cth), arguing that certain costs incurred and omissions made by the applicant were unreasonable.

Judge Cassidy determined that section 570 of the *Fair Work Act 2009* (Cth) did not preclude the Court from awarding costs in relation to the common law claims. The Court reasoned that the statutory provision primarily governed costs in relation to the *Fair Work Act* claims themselves, and did not extinguish the Court's inherent or general jurisdiction to award costs for related common law claims. Regarding the application under section 570(2)(b), the Court found that the applicant's conduct in relation to the costs and omissions in question was not unreasonable to the extent required to justify an order for costs under that specific provision.

The Court ordered that the applicant pay the respondent's costs of the proceeding, but limited those costs to the extent that they were attributable to the common law claims. The respondent's application for costs under section 570(2)(b) of the *Fair Work Act 2009* (Cth) was dismissed.

Orders