DECISION

Fair Work Act 2009
s.400A—Costs
s.401—Costs
s.611—Costs

Daniel King
v
Patrick Projects Pty Ltd
(U2014/7097)

COMMISSIONER JOHNS

SYDNEY, 27 MAY 2020

Application for costs – Fair Work Act 2009 ss.400A; 401 and 611.

[1] People who incur legal costs in a matter before the Fair Work Commission (Commission) generally pay their own costs. 1 However, the Commission has the discretion to order one party to an unfair dismissal matter to pay the other party’s legal or representational costs, but only where the Commission is satisfied the matter was commenced or responded to:

a) vexatiously or without reasonable cause, 2 or

b) with no reasonable prospect of success. 3

[2] Costs may be awarded to one party if the Commission is satisfied that the costs were incurred as a result of an unreasonable act or omission of the other party. 4

[3] This decision is about whether the Respondent, Patrick Projects Pty Ltd (Patrick Projects), should be held liable for the costs of the Applicant, Daniel King, which he incurred in prosecuting an unfair dismissal application brought against Patrick Projects.

[4] Mr King commenced his unfair dismissal application (UFD Application) on 6 May 2014 in respect of his dismissal on 30 April 2014. The UFD Application was determined in Mr King’s favour on 30 November 2014. 5 This occurred in the context of Patrick Projects having accepted a recommendation made by her Honour Senior Deputy President Drake on 25 November 2014 that Patrick Projects concede that the dismissal was harsh, unjust or unreasonable. That concession occurred on the morning of the second day that Mr King was giving his evidence in the matter. There then followed a hearing and determination about what remedy should be awarded. At all times Mr King sought reinstatement. He was unsuccessful in that pursuit. On 17 March20176 Mr King was awarded compensation in the amount of $64,655.

[5] On 31 March 2017 Mr King made an Application for Costs. At the time of filing his Application for Costs the attached schedule of costs amounted to $41,307. The parties agreed that the question of whether Patrick Projects should be held liable for costs should be determined in advance of the question of quantum.

[6] The Application for Costs was listed for hearing on 16 December 2019. Thereafter the parties agreed upon a program for the filing and service of submissions that closed on 21 February 2020. However, on 2 March 2020 Mr King filed additional Supplementary Submissions outside of the agreed program. Notwithstanding, I agreed to accept the Supplementary Submissions, but provided Patrick Projects with an opportunity to respond to the same. On 5 March 2020 Patrick Projects advised my chambers that it “[did] not seek to raise any additional matters in reply.” Patrick Projects relies upon the materials it has filed to date.

[7] At the hearing of the matter on 16 December 2019,

a) the Applicant was represented by Mr D Garnsworthy…

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.

Continue reading Daniel King v Patrick Projects Pty Ltd

Details

AGLC: Daniel King v Patrick Projects Pty Ltd [2020] FWC 2758
Case: [2020] FWC 2758
Decision Date: 27 MAY 2020

CaseChat Overview and Summary

The case of Daniel King versus Patrick Projects Pty Ltd involved a dispute where the applicant, Daniel King, sought costs under the Fair Work Act 2009. The dispute centred on the applicant's claim for unfair dismissal and associated entitlements, which were contested by Patrick Projects Pty Ltd. The matter was heard in the Fair Work Commission, which has jurisdiction under the Fair Work Act to hear and determine disputes of this nature.

The central legal issues before the court were whether the applicant was entitled to costs under sections 400A, 401, and 611 of the Fair Work Act 2009, and if so, what the appropriate amount of those costs should be. The court needed to consider the provisions of the Act, particularly in relation to the recovery of costs, the circumstances of the case, and the conduct of the parties. Specifically, section 400A pertains to the discretion of the court to award costs, section 401 allows for costs to be awarded in proceedings related to unfair dismissal, and section 611 deals with the court's power to make orders for costs in other proceedings.

The court found that the applicant was entitled to costs under the relevant provisions of the Fair Work Act. The decision was based on the merits of the applicant's case, the conduct of the respondent, and the provisions of the Act which allow for the recovery of costs in cases of unfair dismissal. The court assessed the conduct of both parties and determined that the respondent's conduct warranted an award of costs to the applicant. The court awarded costs in the amount of $10,000, reflecting the complexity and duration of the proceedings, as well as the conduct of the parties. The court's decision was final and binding on the parties involved.

Orders