FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Hu (No 2) [2019] FCAFC 175
Appeal from: Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 File number: QUD 530 of 2018 Judges: FLICK, REEVES AND BROMBERG JJ Date of judgment: 16 October 2019 Catchwords: PRACTICE AND PROCEDURE – s 570(2) of the Fair Work Act 2009 (Cth) – application for costs – conduct of appellant was not unreasonable such as to cause costs to be incurred – appeal was not such as to be instituted without reasonable cause – application refused Legislation: Fair Work Act2009 (Cth) ss 45, 570
Horticulture Award 2010 cl 15.2
Cases cited: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, (2009) 236 FLR 1
Fair Work Ombudsman v Hu(No 2) [2018] FCA 1034
Fair Work Ombudsman v Hu [2019] FCAFC 133
Shea v EnergyAustralia Services Pty Ltd (No 2) [2015] FCAFC 14
Date of hearing: Determined on the papers Date of last submissions: 28 August 2019 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: Mr J Bourke QC with Mr A J Coulthard Solicitor for the Appellant: Fair Work Ombudsman Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second and Third Respondents: Mr P Tucker with Mr D King Solicitor for the Second and Third Respondents: Hopgood Ganim Lawyers Counsel for the Intervener: Mr R Dalton SC with Mr A Denton Solicitor for the Intervener: Seyfarth Shaw Australia ORDERS
QUD 530 of 2018 BETWEEN: FAIR WORK OMBUDSMAN
Appellant
AND: TAO HU
First Respondent
MARLAND MUSHROOMS QLD PTY LTD
Second Respondent
TROY MARLAND
Third Respondent
NATIONAL FARMERS’ FEDERATION LIMITED
Intervener
JUDGES:
FLICK, REEVES AND BROMBERG JJ
DATE OF ORDER:
16 OCTOBER 2019
THE COURT ORDERS THAT:
1.The Second and Third Respondents’ application for an order for costs pursuant to s 570(2) of the Fair Work Act 2009 (Cth) be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
In the present proceeding the Fair Work Ombudsman commenced a proceeding claiming contraventions of s 45 of the Fair Work Act2009 (Cth) (the “Fair Work Act”) and that the Respondents were knowingly involved in those contraventions. In very summary form, it was claimed that persons who had been employed to pick mushrooms at the Marland farm had entered into a piecework agreement and had not been paid their entitlements pursuant to cl 15.2 of the Horticulture Award 2010 (the “Horticulture Award”).
The proceeding ultimately proceeded to hearing against two of the Respondents, namely Marland Mushrooms Qld Pty Ltd (“Marland Mushrooms”) and its sole director and shareholder, Mr Troy Marland. The National Farmers’ Federation was granted leave to intervene in the proceeding.
The primary Judge dismissed the proceeding: Fair Work Ombudsman v Hu(No 2) [2018] FCA 1034. The Fair Work Ombudsman appealed.…
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- Case
- [2019] FCAFC 175
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appellant's conduct in pursuing the matter was unreasonable to the extent that it warranted an order for costs against the respondents. The court was required to consider the relevant provisions of the Fair Work Act 2009 (Cth) and assess the conduct of the appellant in light of the principles governing the award of costs in such proceedings. Specifically, the court needed to determine whether the appellant's decision to proceed with the appeal was without reasonable cause and whether the conduct of the appellant was unreasonable.
The court found that the appellant's conduct was not unreasonable, and the appeal was not such as to be instituted without reasonable cause. The reasoning of the court was based on a detailed examination of the evidence and the applicable legal standards. The court held that there was no basis to find that the appellant's conduct was unreasonable or that the appeal lacked reasonable cause. Consequently, the application for costs was refused. The court emphasised that the decision to proceed with an appeal must be assessed in light of the merits of the case and the evidence available at the time.
The final orders of the court were that the application for an order for costs pursuant to section 570(2) of the Fair Work Act 2009 (Cth) be refused. The court's decision underscores the importance of demonstrating unreasonable conduct and lack of reasonable cause to successfully apply for costs under the Fair Work Act. The outcome of this case provides clarity on the standards that must be met for such an application to succeed.
Orders
Orders of the court
1. The Second and Third Respondents’ application for an order for costs pursuant to s 570(2) of the Fair Work Act 2009 (Cth) be refused.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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