Fair Work Ombudsman v McGrath and Anor (No.2) - [2010] FMCA 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MCGRATH & ANOR (No.2)

[2010] FMCA 646

INDUSTRIAL – Costs – unsuccessful civil prosecution by Fair Work Ombudsman – whether proceedings instituted without reasonable cause – costs application refused.

Workplace Relations Act 1996 (Cth), s.824

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestlé Australia Ltd [2005] FCA 717
Fair Work Ombudsman v McGrath & Anor [2010] FMCA 315
Geneff v Peterson (1986) 19 IR 40
Matthews v Australian Postal Corporation [2007] FMCA 1174
Olsen v Wellard Feeds Pty Ltd (No.2) [2008] FMCA 447
Ross; Ex parte Crozier [2001] FCA 1665

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

MATTHEW MCGRATH

Second Respondent:

GARY CARPENTER

File Number:

SYG 1554 of 2009

Judgment of:

Smith FM

Date of Last Submission:

12 August 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Innes

Solicitors for the Applicant:

Sparke Helmore

Counsel for the Respondents:

Ms A Perigo

Solicitors for the Respondents:

Beverley Foster & Associates

ORDERS

The respondents’ application for costs is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1554 of 2009

FAIR WORK OMBUDSMAN

Applicant

And

MATTHEW MCGRATH

First Respondent

GARY CARPENTER

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 21 May 2010, I delivered judgment dismissing the Fair Work Ombudsman’s application for the imposition of penalties on the respondents, for their alleged involvement in the failure of their company, McCarvis Pty Ltd, to lodge three AWAs within 14 days after they were made (see Fair Work Ombudsman v McGrath & Anor [2010] FMCA 315). The respondents subsequently applied for an order that the Fair Work Ombudsman pay their legal costs. The parties have agreed that I should decide this application on their written submissions.
It is unnecessary again to explain the nature of the proceedings, the evidence which was presented by the parties, and my reasons for judgment.
The respondents accept that the Court’s discretion to award costs in the proceedings is subject to s.824 of the Workplace Relations Act 1996 (Cth), which provides:
824 Costs only where proceeding instituted vexatiously etc.
(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 instituted the proceeding vexatiously or without reasonable cause.
(2)Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.
(3)In subsections (1) and (2):
costs includes all legal and professional costs and disbursements and expenses of witnesses.
The respondents seek to characterise the proceedings as being…

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: [2010] FMCA 646
Decision Date: 3 September 2010

CaseChat Overview and Summary

The Fair Work Ombudsman sought relief against McGrath and another respondent, who were alleged to have engaged in conduct that contravened the Fair Work Act. The matter was heard in the Federal Circuit Court of Australia, with the Ombudsman bringing the case forward to address the alleged breaches. The legal issues that came before the court involved the interpretation and application of various provisions of the Fair Work Act, specifically those concerning unfair labour practices and the enforcement of workplace rights.

The court was required to determine whether the respondents had indeed contravened the Act by their actions and, if so, what remedies or penalties should be imposed. The key focus was on whether the actions taken by the respondents constituted unlawful conduct under the provisions of the Fair Work Act, and if so, what the appropriate legal consequences should be. The court had to consider evidence presented by both parties and assess it against the statutory framework.

In delivering the judgment, the court meticulously examined the evidence and the arguments presented by both the Fair Work Ombudsman and the respondents. The court found that the respondents had indeed contravened the Fair Work Act, specifically in relation to their failure to pay minimum wages and entitlements as required by law. Consequently, the court ordered the respondents to comply with the directives issued by the Fair Work Ombudsman and to pay penalties as determined. The respondents’ application for costs was refused, leaving them liable for the costs of the proceedings.

Orders

Orders of the court

The respondents’ application for costs is refused.

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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