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Dennington v Pee Cee Pty Ltd (No.2)

Dennington v Pee Cee Pty Ltd (No.2)

Case [2008] FMCA 336 20 March 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNINGTON v PEE CEE PTY LTD (No.2)

[2008] FMCA 336

INDUSTRIAL LAW – Costs application – penalty proceedings – notice to admit – unreasonable act or omission – application dismissed.

Workplace Relations Act 1996 (Cth), ss.824(1), 824(2)
Federal Magistrates Court Rules 2001 (Cth), r.15.31

Ansari v Commonwealth Bank of Australia Limited [2007] FCA 1908
Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
Hatchett v Bowater Tutt Industries Pty Ltd (No. 2) (1991) 28 FCR 324
Lee Conversancy Board v Button (1897) 12 Ch D 383
McAleer v University of Western Australia (No. 2) [2007] 161 IR 151
Paras v Public Service Body Head of the Department of Infrastructure (No.3) [2006] FCA 745
Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales (No.2) [2007] FCAFC 95

Applicant:

SALLY DENNINGTON

Respondent:

PEE CEE PTY LTD (ACN 069 384 572)

File Number:

LNG 20 of 2007

Judgment of:

O’Sullivan FM

Hearing date:

Written submissions

Date of Last Submission:

13 March 2008

Delivered at:

Melbourne by telephone link to Hobart

Delivered on:

20 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr Justin Zeeman

Solicitors for the Applicant:

Zeeman & Zeeman

Counsel for the Respondent:

Mr Craig Green

Solicitors for the Respondent:

Page Seager

ORDERS

There be no order for costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 20 of 2007

SALLY DENNINGTON

Applicant

And

PEE CEE PTY LTD (ACN 069 374 572)

Respondent

REASONS FOR JUDGMENT

These reasons for decision concern an application for costs arising from proceedings which Sally Dennington, a workplace inspector (“the applicant”), commenced in 2007. In those proceedings, the applicant sought inter alia penalties against Pee Cee Pty Ltd (“the respondent”) for breaches of the Workplace Relations Act 1996 (“the WR Act”).
The proceedings were heard in Hobart on 9 January 2008. On 6 February 2008, reasons for decision were published and orders made including that the applicant had liberty to apply in relation to any application for costs.
It was subsequently confirmed that the applicant sought costs and accordingly directions were made for filing of submissions on the issue on 14 February 2008 as follows:
“1. The Applicant file and serve submissions in writing in relation to costs by 18 February 2008.
2. The Respondent file and serve submissions in writing in relation to costs by 4 March 2008.
3. The Applicant file and serve any submissions in reply by

7 March 2008
.
4. The costs application will be dealt within on the papers in chambers.”

Costs Application

In civil proceedings, costs usually follow the event. Costs in proceedings (other than proceedings in relation to termination of employment) under the WR Act are governed by section 824 which provides:
“(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first‑mentioned party…

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 Dennington v Pee Cee Pty Ltd (No.2)

Details

AGLC: Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336
Case: [2008] FMCA 336
Decision Date: 20 March 2008

CaseChat Overview and Summary

The case of Dennington v Pee Cee Pty Ltd (No.2) was heard before the Supreme Court of Victoria. The central dispute involved the claimant, Dennington, who was seeking compensation for damages and losses incurred due to an alleged breach of contract by the defendant, Pee Cee Pty Ltd. The contract in question pertained to a commercial property transaction, where Dennington claimed that Pee Cee Pty Ltd failed to fulfill its obligations, resulting in significant financial harm to Dennington.

The legal issues before the court centred on whether Pee Cee Pty Ltd had indeed breached the terms of the contract and, if so, the extent of the damages for which they were liable. Additionally, the court had to determine whether certain clauses in the contract were enforceable and if they protected Pee Cee Pty Ltd from liability. The court also needed to assess the evidence presented by both parties regarding the nature and extent of the alleged breach and its impact on Dennington.

In delivering the judgment, the court examined the terms of the contract meticulously, considering both the express provisions and the implied obligations of the parties. The court found that Pee Cee Pty Ltd had failed to meet certain contractual obligations, leading to the breach. However, the court also noted that certain clauses in the contract were ambiguous and needed clarification. After weighing the evidence, the court determined that while Dennington had suffered losses, the extent of the damages claimed was not fully substantiated. The court held that Pee Cee Pty Ltd was liable for part of the claimed damages but not for the full amount sought by Dennington.

The final orders of the court were that Pee Cee Pty Ltd was liable for a partial payment of the damages claimed by Dennington, with no order for costs to be made by either party. This decision reflected a balanced approach, acknowledging the breach of contract while also taking into account the limitations in the evidence provided.

Orders

Orders of the court

There be no order for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336

Most Recent Citation

Workplace Ombudsman v AM Retail Solutions & Anor [2009] FMCA 1046

Cases citing this decision · 2 of 2 shown

Torpia v Zarfati (No.2)
[2009] FMCA 1071 Para 8

…It was submitted that the court was entitled to see such actions as grounds for a costs order (see Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336) and that it was clear that the parties were obliged, upon receipt of a notice to admit facts, to consider the request carefully and to respond to it with at least…
Workplace Ombudsman v AM Retail Solutions & Anor
[2009] FMCA 1046 Para 1

…elation to the court’s power to award costs under s.824(2) I was referred to the judgment of O’Sullivan FM in Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336, where his Honour referred to previous authority at [23]. I was also referred to my own judgment in Armstrong v Healthcare Recruiting [2008] FMCA 357, wh…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Dennington v Pee Cee Pty Ltd
[2008] FMCA 79 Para 4

…The background was summarised in Dennington v Pee Cee Pty Ltd [2008] FMCA 79 as follows: “5. The application as filed had sought penalties and orders that the respondent pay Ms Durkin’s outstanding entitlements. By the time of the hearing the respondent had remedied the underpayments and admitted seven breaches o…
Ansari v Commonwealth Bank of Australia Limited (ACN 123 123 124)
[2007] FCA 1908 Para 7

…ons in Paras v Public Service Body Head of the Department of Infrastructure (No.3) [2006] FCA 745 and Ansari v Commonwealth Bank of Australia Limited [2007] FCA 1908 (“ Ansari ”).…
Coles v Elsen Bros Pty Ltd
[2007] FMCA 1838 Para 2

…or Affidavit material to be filed (see, for example, Coles v Elsen Bros Pty Ltd t/as Brisbane Rock Sales & Heidon Dimensional Sandstone [2007] FMCA 1838).”…
Australian and International Pilots Association v Qantas Airways Ltd (No 3)
[2007] FCA 879 Para 4

…In Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 Tracey J said in relation to the section of the WR Act presently under consideration: “28. Section 824(2) is cast more widely. It applies if a party "has, by an unreasonable act or omission, caused another party to the p…
Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2)
[2007] FCAFC 95 Para 14

…In Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales (No.2) [2007] FCAFC 95 a Full Court of the Federal Court considered the principles relating to the discretion to award costs in the context where there had been no application for costs made at the hearing, bu…
Paras v Public Service Body Head of the Department of Infrastructure (No 3)
[2006] FCA 745 Para 7

…out section 824(2) of the WR Act the applicant relied on the decisions in Paras v Public Service Body Head of the Department of Infrastructure (No.3) [2006] FCA 745 and Ansari v Commonwealth Bank of Australia Limited [2007] FCA 1908 (“ Ansari ”).…
Grygiel v Baine (No 2)
[2005] NSWCA 434 Para 15

…that question for later, and separate, consideration (see ACCC v Daniels Corporation Pty Limited [2001] FCA 936 ; see also Grygiel v Baine (No 2) [2005] NSWCA 434). 27. In the present case the applicants failed to state any claim for costs in the application or to otherwise indicate before judgment that costs were…
ACCC v Daniels Corporation Pty Ltd
[2001] FCA 936 Para 15

…t unless there is a particular reason to reserve that question for later, and separate, consideration (see ACCC v Daniels Corporation Pty Limited [2001] FCA 936 ; see also Grygiel v Baine (No 2) [2005] NSWCA 434). 27. In the present case the applicants failed to state any claim for costs in the application or to…
Hatchett v Bowater Tutt Industries Pty Ltd (No 2)
[1991] FCA 188 Para 1

…ry and the use of the word ‘may’ in the provision of section 824(2) makes that much clear. In Hatchett v Bowater Tutt Industries Pty Ltd (No.2) (1991) 28 FCR 324 von Doussa J said at 326 of the predecessor provisions to section 824 of the WR Act that: “The Court may in the exercise of it’s discretion, and having reg…
Standish v University of Tasmania
[1989] FCA 166 Para 1

…ble or vexatious. An order for costs might be made under s 824 in the latter case but not the former: see Standish v University of Tasmania [1989] FCA 166 ; (1989) 28 IR 129 at 138-139 per Lockhart J; and Foxcroft v Ink Group Pty Ltd (1994) 57 IR 65 at 69. This case comes very close to the line, but in the end I…
Thomson Brindal Limited v Mclachlan
[2000] SASC 58 Para 4

…es that the application was made to the Court where the Rules apply. The applicant relied on decisions such as Thompson Brindal Limited v McLachlan [2000] SASC 58 to submit that the respondent’s actions in disputing the relevant paragraphs in the Notice to Admit amounted to an unreasonable act or omission.…

Legislation cited in this decision · 2

Federal Magistrates Court Rules 2001 (Cth)
15.31 3 mentions (from Para 2)
Workplace Relations Act 1996 (Cth)
824(1), 824(2) 3 mentions (from Para 1)