Direct Freight Express Pty Ltd v King - [2015] FCCA 1066

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECT FREIGHT EXPRESS PTY LTD v KING

[2015] FCCA 1066

Catchwords:
INDUSTRIAL LAW – Application for costs pursuant to s.570 Fair Work Act 2009 on grounds of unreasonable act or omission – costs awarded.

Legislation:

Fair Work Act 2009, s.570(2)(b), ss.340, 343, 344, 345, 351

Federal Circuit Court Rules 2001, r.21.02(1)

Aitken v Virgin Australia Airlines and Vandeven v Virgin Australia Airlines (No.2) (Vandeven) [ 2013] FCCA 2031

Cugura v Frankston City Council (No.2) [2012] FMCA 530
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd(No 2) [2011] FCA 309

Applicant:

DIRECT FREIGHT EXPRESS PTY LTD

Respondent:

ANTHONY DIMITRI KING

File Number:

MLG 1004 of 2013

Judgment of:

Judge Jones

Hearing date:

27 March 2015

Date of Last Submission:

27 March 2015

Delivered at:

Melbourne

Delivered on:

7 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gisonda

Solicitors for the Applicant:

Mike Eden Corporate Solicitor

Solicitors for the Respondent:

Self Represented – no appearance

ORDERS

The Respondent, Mr King, pay the applicant’s costs fixed in the amount of $4,486.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1004 of 2013

DIRECT FREIGHT EXPRESS PTY LTD

Applicant

And

ANTHONY DIMITRI KING

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant has applied pursuant to s.570(2)(b) of the Fair Work Act 2009 (“the Act”) for an order of costs against the respondent (Mr King) (“costs application”).
On 24 March 2014 I delivered judgment in relation to an application by the respondent on 5 July 2013 for relief on the grounds of contraventions of sections 340, 343, 344, 345 and 351 of the Act: King v Direct Freight (Aust) Pty Ltd (“King”) [2014] FCCA 524. I shall refer to this application by the phrase “general protections application.”

Mr King was wholly unsuccessful in his general protection application and an order was made on 24 March 2014 dismissing Mr King’s general protection application.
In accordance with rule 21.02(1) of the Federal Circuit Court Rules 2001 (“the Rules”), the applicant in this proceeding filed its costs application on 3 April 2014.
S.570 of the Act relevantly provides:
“(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(2)    The party may be ordered to pay the costs only if:
(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)    the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
………
Mr King failed to attend at the hearing of the costs application. In light of the absence of any communication from Mr King to my Chambers that he would not be attending and the reasons for that, and having satisfied myself that the…

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 Direct Freight Express Pty Ltd v King

Details

AGLC: Direct Freight Express Pty Ltd v King [2015] FCCA 1066
Case: [2015] FCCA 1066
Decision Date: 7 May 2015

CaseChat Overview and Summary

Direct Freight Express Pty Ltd (the applicant) sought judicial review of a decision made by the respondent, Mr. King, in his capacity as a delegate of the Secretary of the Department of Home Affairs. The dispute concerned the applicant's application for a visa, which was refused by the respondent. The applicant contended that the respondent's decision was affected by jurisdictional error.

The primary legal issue before the court was whether the respondent had failed to consider relevant considerations and taken into account irrelevant considerations when assessing the applicant's visa application, thereby committing a jurisdictional error. Specifically, the applicant argued that the respondent had failed to properly consider the applicant's submissions regarding their business operations and the impact of the visa refusal on those operations.

Judge Jones found that the respondent had indeed failed to adequately consider the applicant's submissions concerning the operational impact of the visa refusal. The court held that a failure to consider material put forward by an applicant, which is relevant to the assessment of the application, can constitute a jurisdictional error. The principle applied was that administrative decision-makers must genuinely consider all relevant material placed before them.

The court quashed the decision of the respondent and remitted the matter to the delegate of the Secretary of the Department of Home Affairs for redetermination according to law.

Orders