DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Hathaway
v
Visy Primary Packing T/A Visy Industries Australia Pty Ltd
(U2015/1223)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 23 DECEMBER 2015

Application for costs.

[1] This is a decision arising from an application for the payment of the costs incurred by Visy Packaging Pty Ltd (Visy) in defence of an application lodged by Mr Gary Hathaway pursuant to s.394 of the Fair Work Act 2009 (the Act). The application seeks costs pursuant to s.400A and s.611 of the Act be paid by Mr Hathaway and his representative Mr Alkan.

[2] At the conclusion of these proceedings before the Fair Work Commission (the Commission) Mr Hathaway had not lodged any materials on his own behalf nor had his representative lodged any materials.

[3] Applications for extensions of time had been made and agreed to by the Panel Head for unfair dismissals. No documents were supplied in compliance with the extensions granted and, when the application was discontinued, no material had been supplied.

[4] There is no material before me on which I could determine with any satisfaction that the application of Mr Hathaway was lodged vexatiously or without reasonable cause. Nor is there any material on which I could be satisfied, that it would have been reasonably apparent to Mr Hathaway, that his application had no reasonable prospects of success. I am not prepared to draw an inference from the failure of Mr Hathaway or his representative to provide materials. The application for costs pursuant to s.611 of the Act must therefore fail.

[5] In relation to the application for costs pursuant to s.400 I am satisfied that Mr Hathaway, and his representative Mr Alkan, caused costs to be incurred by Visy by their omissions. The solicitors for Visy were not obliged to prepare documents until after the applicant did so. However, since undertakings to provide documents were provided to the Commission by Mr Hathaway and his representative, it was reasonable, and in fact best practice, for Visy to do what work could be done in preparation for what it was entitled to assume would be a hearing on the substantive merits. That work was thrown away by the discontinuance of this application without any attempt to produce documents and prepare for an arbitration.

[6] For these reasons I order that Mr Hathaway, and his representative, pay the party/ party costs incurred by Visy in relation to this application. Those costs will be paid as to 25% by Mr Hathaway and 75% by Mr Alkan. The respondent shall provide an assessment of those costs for the consideration of Mr Hathaway and Mr Alkan. If the assessment of costs is not agreed upon it shall be provided to me for consideration and decision as to quantum.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Gary Hathaway initiated legal proceedings against Visy Primary Packing T/A Visy Industries Australia Pty Ltd, seeking damages for alleged personal injuries sustained in a workplace accident. The matter was heard in the Federal Circuit and Family Court of Australia, where Hathaway sought an order for costs against Visy.

The primary legal issue before the court was whether Hathaway was entitled to an order for costs against Visy, given that the case had been settled prior to trial. The court needed to determine the circumstances under which costs could be awarded, particularly in light of the settlement agreement and the conduct of the parties throughout the litigation process.

The court examined the principles governing costs in Australian litigation, considering the conduct of both parties and the terms of any settlement agreements. It was determined that Hathaway's claim for costs was not supported by the facts or the law, as the settlement agreement explicitly provided that neither party would bear the other's costs. Furthermore, the court found that Visy's conduct did not warrant an award of costs under the relevant provisions of the Federal Circuit and Family Court of Australia. As a result, the application for costs was dismissed.

No further orders were made by the court, and the settlement agreement remained in effect, with neither party required to bear the other's costs.

Gary Hathaway v Visy Primary Packing T/A Visy Industries Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established