Felipe Martin v Jim Aitken & Partners No 1 Pty Ltd - [2025] FWC 2303

[2025] FWC 2303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Felipe Martin
v

Jim Aitken & Partners No 1 Pty Ltd

(U2025/2017)

COMMISSIONER MCKINNON

SYDNEY, 8 AUGUST 2025

Application for costs – unfair dismissal

On 5 June 2025, I dismissed the unfair dismissal application of Mr Felipe Martin against Jim Aitken & Partners No. 1 Pty Ltd t/as Aitken Real Estate (Aitken Real Estate) on the basis that Mr Martin was not dismissed (the Decision).[1]

Aitken Real Estate has applied for costs against Mr Martin under sections 400A and/or 611 of the Fair Work Act2009 (Cth) (Act). In support of its application, Aitken Real Estate submits that:

1.   on 21 February 2025, Mr Martin made his application vexatiously and without proper purpose, and/or
2.   it should have been reasonably apparent to Mr Martin that his application had no reasonable prospects of success, and
3.   in the alternative, Mr Martin acted unreasonably by failing to discontinue his application on and from 28 April 2025, once it should have been reasonably apparent to him that his application was not reasonably arguable. On this date, Mr Martin had the benefit of the submissions and evidence filed by Aitken Real Estate in response to the application.

Relevant legal principles

Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are exceptions to this general rule that allow for costs to be awarded in specific circumstances, including those found in sections 400A and 611(2) of the Act.

Section 400A of the Act provides as follows:

“Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

In summary, section 400A(1) of the Act requires the Commission to be satisfied of two matters before making an order for costs against a party under that provision:

(a) Firstly, that the party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and

(b) Secondly, that such act or omission caused the other party to incur costs.

Satisfaction as to both matters enlivens the Commission’s discretionary power to order the payment of costs under section 400A.[2]

While section 611(1) provides for each party to bear their own costs in matters before the Commission, section 611(2) of the Act provides as follows:

“(2) However, the FWC may order a person (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 Felipe Martin v Jim Aitken & Partners No 1 Pty Ltd

Details

AGLC: Felipe Martin v Jim Aitken & Partners No 1 Pty Ltd [2025] FWC 2303
Case: [2025] FWC 2303
Decision Date: 8 AUGUST 2025

CaseChat Overview and Summary

In the case of Felipe Martin v Jim Aitken & Partners No 1 Pty Ltd, the applicant, Mr Martin, sought a remedy under the Fair Work Act 2009 for an alleged unfair dismissal. The respondent, Aitken Real Estate, subsequently applied for costs under sections 400A and 611 of the Fair Work Act 2009. The Commission was required to determine whether Mr Martin’s application was made vexatiously or without proper purpose, whether it should have been reasonably apparent to him that his application had no reasonable prospects of success, and whether Mr Martin acted unreasonably by failing to discontinue his application on and from 28 April 2025. The Commission found that the application was not made vexatiously or without proper purpose, and that it should have been reasonably apparent to Mr Martin that his application had no reasonable prospects of success. However, the Commission considered that the interests of justice did not weigh in favour of an order for costs under section 611(2)(b). The Commission found that it was unreasonable for Mr Martin to continue his application after 28 April 2025, once it should have been reasonably apparent to him that his application was not reasonably arguable, and that Aitken Real Estate incurred further costs in defending the application. However, the Commission adopted a cautionary approach to the award of costs in the circumstances.

The Commission dismissed the application for costs made by Aitken Real Estate. The application for costs under sections 400A and 611(2)(b) of the Fair Work Act 2009 was refused. The application for costs under section 400A was refused due to a cautionary approach taken by the Commission. The application for costs under section 611(2)(b) was refused as the interests of justice did not weigh in favour of an order for costs. The decision highlights the importance of considering the principles governing the interpretation and application of the relevant sections of the Fair Work Act 2009 when determining an application for costs. The decision also highlights the importance of adopting a cautionary approach to the award of costs in circumstances where the applicant sought legal advice about their options before making the application.

Orders