Dlima v Illion Australia Pty Ltd - [2019] FCCA 2312

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLIMA v ILLION AUSTRALIA PTY LTD

[2019] FCCA 2312

Catchwords:
INDUSTRIAL LAW – Alleged breaches of Part 3-1 of the Fair Work Act 2009 (Cth) – application by respondent for costs of directions hearing – whether refusal by unrepresented applicant of offer of settlement is unreasonable act or omission – whether caused the respondent to incur costs – no order as to costs.

Legislation:

Fair Work Act 2009 (Cth), s.570

Cases cited:

Ryan v Primesafe [2015] FCA 8
Saxena v PPF Asset Management Ltd [2011] FCA 395
Australasian Meat Industry Employees’ Union v Fair Work Australia (No.2) (2012) 203 FCR 430
Tsilibakis v Transfield Services (Australia) Pty Ltd (No.2) [2015] FCA 1048
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143
Ashby v Slipper (No.2)[2014] FCAFC 67
Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission[2006] FCAFC 199
Australian and International Pilots Association v Qantas Airways Ltd (No.3)[2007] FCA 879
Construction Forestry Mining and Energy Union v Australian Building and Construction Commission [2018] FCAFC 4
Cugura v Frankston City Council [2012] FCA 1299
Blagojevch v Australian Industrial Relations Commission [2000] FCA 483

Applicant:

JOHN DLIMA

Respondent:

ILLION AUSTRALIA PTY LTD

File Number:

MLG 3209 of 2018

Judgment of:

Judge O'Sullivan

Hearing date:

21 August 2019

Date of last submission:

21 August 2019

Delivered at:

Melbourne

Delivered on:

21 August 2019

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Wheelahan

Solicitors for the Respondent:

Holding Redlich

ORDERS

There be no order as to costs of the directions hearing of 17 May 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3209 of 2018

JOHN DLIMA

Applicant

And

ILLION AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern an application by the respondent for its costs of the directions hearing held on 17 May 2019.
The substantive proceedings were commenced by application filed on 25 October 2018 by Mr John Dlima (“the applicant”) against Illion Australia Pty Ltd (“the respondent”). The applicant alleged contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) (“the Act”) by the respondent. The applicant commenced employment with the respondent on 13 June 2017 as a ‘Collector (Call Centre Consultant)’. On 6 August 2018, the applicant’s employment was terminated by the respondent.
In the substantive proceedings, the applicant alleges that the respondent contravened inter alia, s.340 of the Act. In his form 2 filed with his initiating application, under a heading “remedy sought” the applicant sought:
“REMEDY SOUGHT
About Compensation: Loss of income from 7 August 2018 to 16 September 2018.
I was unemployed during the above period and my lost compensation would amount of $5,019.22 for the 29 working days during the period of unemployment. This has been computed on the basis of my hourly rate of $23.0769 per hour and a 7.5 hour work day.”
The matter is set for a three day trial…

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: [2019] FCCA 2312
Decision Date: 21 August 2019

CaseChat Overview and Summary

In *Dlima v Illion Australia Pty Ltd*, the applicant, an unrepresented individual, alleged breaches of Part 3-1 of the *Fair Work Act 2009* (Cth) against the respondent. The respondent sought an order for the costs of a directions hearing, arguing that the applicant's refusal of a settlement offer constituted an unreasonable act or omission that caused the respondent to incur costs.

The central legal issue before the Court was whether the applicant's refusal of the settlement offer was unreasonable in the circumstances, and if so, whether this refusal directly caused the respondent to incur costs necessitating a costs order in its favour.

Judge O'Sullivan found that while the applicant had refused a settlement offer, this refusal, in itself, did not meet the threshold for an unreasonable act or omission that would justify an order for costs against an unrepresented litigant. The Court applied the general principle that costs follow the event, but also considered the discretion to award costs, particularly in circumstances involving unrepresented parties and the reasonableness of their conduct. The Court determined that the applicant's actions, though leading to the continuation of proceedings, did not warrant penalising the applicant with a costs order.

Consequently, no order was made as to costs.

Orders