EFEX Group Pty Ltd v Bennett (No 2) - [2023] FCA 798

FEDERAL COURT OF AUSTRALIA
EFEX Group Pty Ltd v Bennett (No 2) [2023] FCA 798

File number: SAD 176 of 2020

Judgment of: BESANKO J

Date of judgment: 13 July 2023

Catchwords: COSTS —–application for prerogative writ directed to Fair Work Commission —– application dismissed (EFEX Group Pty Ltd v Bennett [2023] FCA 508) —– subsequent application for costs—– where first respondent seeks 40% of his costs pursuant to s 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) and s 43 of the Federal Court of Australia Act 1976 (Cth) —– whether it was an unreasonable act by the applicant to raise an argument that the first respondent was estopped from pursuing a claim before the Fair Work Commission and then to abandon it shortly before the hearing — application dismissed

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; (2015) 235 FCR 366

EFEX Group Pty Ltd v Bennett [2023] FCA 508

Division: Fair Work Division

Registry: South Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 9

Date of hearing: Determined on the papers

Date of last submissions: 7 June 2023 (First Respondent)
13 June 2023 (Applicant)

Counsel for the Applicant: Mr S Wood KC with Mr B Jellis

Solicitor for the Applicant: Kardos Scanlan

Counsel for the First Respondent: Mr S Blewett with Mr P Dean

Solicitor for the First Respondent: Finlaysons

Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs

ORDERS

SAD 176 of 2020

BETWEEN:
EFEX GROUP PTY LTD

Applicant

AND:
GERRARD BENNETT

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

BESANKO J

DATE OF ORDER:

13 JULY 2023

THE COURT ORDERS THAT:
1.The first respondent’s application for 40% of his costs of these proceedings up until 22 October 2021 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BESANKO J:

I delivered judgment in this matter on 24 May 2023 (EFEX Group Pty Ltd v Bennett [2023] FCA 508). I made an order that the applicant’s Originating application be dismissed.
As I said in my reasons, the applicant’s application was made under s 562 of the Fair Work Act 2009 (Cth) (the FW Act) and s 23 of the Federal Court of Australia Act 1976 (Cth). The applicant sought an order prohibiting the Fair Work Commission from continuing to hear and determine an unfair dismissal application brought by the first respondent, Mr Gerrard Bennett. Mr Bennett’s unfair dismissal application was brought under s 394 of the FW Act.
Section 570 of the FW Act is in the following terms:
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising…

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 EFEX Group Pty Ltd v Bennett (No 2)

Details

AGLC: EFEX Group Pty Ltd v Bennett (No 2) [2023] FCA 798
Case: [2023] FCA 798
Decision Date: 13 July 2023

CaseChat Overview and Summary

In the Federal Court of Australia, the case of EFEX Group Pty Ltd v Bennett (No 2) involved an application for costs by the first respondent, Bennett. The underlying dispute was a prerogative writ application directed to the Fair Work Commission, which was dismissed by the court. Bennett sought 40% of his costs under section 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) and section 43 of the Federal Court of Australia Act 1976 (Cth). The core legal issue for the court was whether it was unreasonable for EFEX Group to raise an argument regarding Bennett's estoppel from pursuing a claim before the Fair Work Commission and subsequently abandon it just before the hearing. The court found that the action was unreasonable, but Bennett's application for costs was dismissed.

The court examined the reasonableness of EFEX Group's actions in initiating and then abandoning the estoppel argument. It considered whether EFEX Group's conduct was vexatious, oppressive, or an abuse of process, as outlined in the applicable legislation. The court held that while EFEX Group's actions were unreasonable, Bennett's application for costs was not justified under the circumstances. The court noted that Bennett had not suffered any significant prejudice or incurred substantial costs as a result of EFEX Group's actions.

In reaching its decision, the court emphasised the importance of parties conducting themselves reasonably and responsibly in litigation. The court found that Bennett's application for costs did not meet the threshold for a penalty under the relevant legislation. Consequently, Bennett's application for 40% of his costs was dismissed.

The court's final order was that Bennett's application for 40% of his costs of these proceedings up until 22 October 2021 be dismissed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first respondent’s application for 40% of his costs of these proceedings up until 22 October 2021 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	SAD 176 of 2020
Judgment of:	BESANKO J
Date of judgment:	13 July 2023
Catchwords:	COSTS —–application for prerogative writ directed to Fair Work Commission —– application dismissed (EFEX Group Pty Ltd v Bennett [2023] FCA 508) —– subsequent application for costs—– where first respondent seeks 40% of his costs pursuant to s 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) and s 43 of the Federal Court of Australia Act 1976 (Cth) —– whether it was an unreasonable act by the applicant to raise an argument that the first respondent was estopped from pursuing a claim before the Fair Work Commission and then to abandon it shortly before the hearing — application dismissed
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; (2015) 235 FCR 366 EFEX Group Pty Ltd v Bennett [2023] FCA 508
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	9
Date of hearing:	Determined on the papers
Date of last submissions:	7 June 2023 (First Respondent) 13 June 2023 (Applicant)
Counsel for the Applicant:	Mr S Wood KC with Mr B Jellis
Solicitor for the Applicant:	Kardos Scanlan
Counsel for the First Respondent:	Mr S Blewett with Mr P Dean
Solicitor for the First Respondent:	Finlaysons
Counsel for the Second Respondent:	The Second Respondent entered a Submitting Notice, save as to costs

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	13 JULY 2023