Findley v MSS Security Pty Ltd and Ors (No.2) - [2020] FCCA 3029

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLEY v MSS SECURITY PTY LTD & ORS (No.2)

[2020] FCCA 3029

Catchwords:
INDUSTRIAL LAW – Costs – Respondents seeks costs on an indemnity basis or party/party basis – respondents seeks costs be taxed under part 40 of the Federal Circuit Court Rules 2001 – Calderbank offer made to the respondent – Calderbank offer refused – repudiation of Calderbank offer unreasonable – costs awarded on an indemnity basis.

Legislation:

Fair Work Act 2009 (Cth), s.570.

Federal Circuit Court Rules 2001 (Cth), r.21.02.

Cases cited:

Abdi v Equitable Financial Solutions Pty Ltd & Anor [2020] FCCA 2521

Bashour v Australia and New Zealand Banking Group Limited [2017] FCA 183

Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119

Findley v MSS Security Pty Ltd [2020] FCA 952

Findley v MSS Security Pty Ltd & Ors [2019] FCCA 2291

Idoport Pty Ltd v the National Australia Bank Ltd [2007] NSWSC 23

Thompson & Finch & Ors [2020] FamCAFC 230

Applicant:

JOSHUA DONALD FINDLEY

First Respondent:

MSS SECURITY PTY LTD

Second Respondent:

MARGARET STINSON

Third Respondent:

MATTHEW LUDDINGTON

File Number:

MLG 2411 of 2018

Judgment of:

Judge McNab

Hearing date:

On the Papers

Date of Last Submission:

3 October 2019

Delivered at:

Melbourne

Delivered on:

11 November 2020

REPRESENTATION

Applicant appearing in person

Solicitors for the Respondents:

Mills Oakley

ORDERS

The Applicant pay the Respondents’ costs on an indemnity basis on and from 21 September 2018, save that there be no order for costs of, and incidental to, the preparation of the affidavit of Jonathan Nguyen affirmed on 25 October 2018.
In default of agreement between the parties as to the amount of those costs within 21 days of the date of these orders, the proceeding be referred to a Registrar or Senior Registrar of the Federal Circuit Court of Australia for the determination of fixing a lump sum of costs, pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2411 of 2018

JOSHUA DONALD FINDLEY

Applicant

And

MSS SECURITY PTY LTD

First Respondent

MARGARET STINSON

Second Respondent

MATTHEW LUDDINGTON

Third Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding, the Applicant filed a claim in this Court on 13 August 2018 alleging, amongst other things, that the First Respondent (“MSS Security”) contravened the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and the MSS Security Victorian Enterprise Agreement 2011 (“the 2011 Agreement”).
The Applicant further alleged that the Second and Third Respondents, being employees of the First Respondent (collectively, “the Respondents”), were ‘involved in’ MSS Security’s contraventions, and therefore personally liable, pursuant to s550 of the Fair Work Act.
On 2 September 2019, in delivering reasons for Judgment, the Court made orders in the following terms:
“THE COURT ORDERS THAT:
1. The application filed 13 August 2018 be stayed as an abuse of process pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).
2. In 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.

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Details

Case: [2020] FCCA 3029
Decision Date: 11 November 2020

CaseChat Overview and Summary

In *Findley v MSS Security Pty Ltd and Ors (No.2)*, the applicant sought to recover costs from the respondents. The respondents sought an order for their costs to be paid on an indemnity basis or, alternatively, on a party/party basis, and that these costs be taxed under Part 40 of the *Federal Circuit Court Rules 2001* (Cth). A key element of the dispute revolved around a *Calderbank* offer made by the respondents to the applicant, which the applicant had refused.

The central legal issue before Judge McNab was whether the respondents were entitled to an order for their costs on an indemnity basis, given the applicant's refusal of the *Calderbank* offer. The court was required to consider the reasonableness of the applicant's repudiation of the offer and its implications for the costs order.

Judge McNab reasoned that the applicant's refusal of the *Calderbank* offer was unreasonable. Applying the principles established in cases concerning *Calderbank* offers, the court determined that the offer was a genuine attempt to resolve the dispute and that its rejection by the applicant was not justified. Consequently, the court found that the respondents had established grounds for an order for costs on an indemnity basis from the date of the offer.

The court ordered that the applicant pay the respondents’ costs on an indemnity basis from 21 September 2018, with an exception for the costs associated with the preparation of a specific affidavit. Furthermore, pursuant to Rule 21.02 of the *Federal Circuit Court Rules 2001*, the proceeding was referred to a Registrar or Senior Registrar for the determination and fixing of a lump sum of costs.

Orders

Orders of the court

ORDERS

1. The Applicant pay the Respondents’ costs on an indemnity basis on and from 21 September 2018, save that there be no order for costs of, and incidental to, the preparation of the affidavit of Jonathan Nguyen affirmed on 25 October 2018.

2. Pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth), the proceeding be referred to a Registrar or Senior Registrar of the Federal Circuit Court of Australia for the determination of fixing a lump sum of costs.

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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