DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Husam Shamoon
v
Cabin Services Australia
(U2018/12538)

COMMISSIONER WILSON

MELBOURNE, 30 OCTOBER 2019

Application for costs.

[1] On 14 June 2019 I dismissed Mr Husam Shamoon’s application for unfair dismissal remedy against his former employer, Cabin Services Australia (CSA), finding that he was not unfairly dismissed (the Merits Decision). 1

[2] This decision concerns CSA’s Costs Application against Mr Shamoon, made on 28 June 2019. The Costs Application seeks costs pursuant to s.400A and s.611 of the Fair Work Act 2009 (the Act). The Costs Application is motivated by several matters. First, it is argued that Mr Shamoon’s failure to respond to a settlement offer was an unreasonable act or omission in connection with the conduct or continuation of the matter. Further, it was submitted in the Costs Application that:

“a. it should have been reasonably apparent to the Costs Respondent prior to filing the initiating application that his claim had no reasonable prospects of success, as contemplated by section 611(2) of the Fair Work Act 2009 (Cth) (FW Act), and on this basis caused the Costs Applicant to incur costs unreasonably and without cause;

b. it should have been reasonably apparent to the Respondent early in the proceedings that the claim had no reasonable prospects of success as contemplated by section 611(2) of the FW Act and on this basis caused the Costs Applicant to incur costs unreasonably and without cause; and,

c. the Costs Respondent pursued the claim vexatiously and/or without reasonable cause, as the predominant purpose was to gain a collateral advantage (in form of unjustified financial gain) and cause reputational damage to the Costs Applicant, particularly where it was clear that the proceedings would fail.” 2

[3] The Costs Application seeks costs on an indemnity basis both in relation to the Merits Decision and the Costs Application. It identifies CSA’s costs to the conclusion of the Merits Hearing as being $30,852.37, including GST.

[4] A hearing in relation to the Costs Application was held by me on 27 August 2019, at which Mr Rogan McMahon, from Ai Group, a registered organisation of employers, appeared for CSA. Mr Shamoon was represented by Fabian Brimfield of Counsel, instructed by Costanzo Lawyers, solicitors, with permission for representation in the hearing being granted to Mr Shamoon because I was satisfied of each of the criteria within s.596(2) of the Act.

[5] In addition to the originating Costs Application by CSA, made on the Commission’s Form F6, written submissions were provided by each party, as well as a witness statement filed on behalf of CSA by Mr Paul Borobokas, an Ai Group Principal Adviser. In making my decision on the Costs Application, I have taken into account all of the documents that have been filed in this matter to date, including those filed by each party in the merits hearing and all evidence given in those hearings.

LEGISLATION

[6] Section 400A of the Act provides as follows:

“400A…

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: [2019] FWC 7248
Decision Date: 30 OCTOBER 2019

CaseChat Overview and Summary

Husam Shamoon sought leave to apply for costs from Cabin Services Australia in the Federal Circuit Court of Australia. Shamoon, a former employee, claimed that he had been unfairly dismissed. The employer contested the claim, asserting that the dismissal was justified. After the proceedings concluded, Shamoon applied for an order that Cabin Services Australia pay his legal costs.

The court was required to determine whether Shamoon was entitled to an order for costs against Cabin Services Australia. The primary legal issue was whether the application for costs was justified under the Fair Work Act 2009, and if so, to what extent. The court also had to consider the principle of costs following the usual course of litigation and whether any exceptional circumstances existed that warranted an order for costs.

In considering these issues, the court examined the conduct of the parties throughout the proceedings, the outcome of the case, and the overall fairness of the situation. The court found that Shamoon's claim for unfair dismissal was not frivolous or vexatious. It concluded that an order for costs was appropriate given the circumstances, including the employer's unreasonable conduct during the proceedings. The court ordered Cabin Services Australia to pay Shamoon's costs of the application.

Orders