Application for an unfair dismissal remedy – application for costs pursuant to ss.400A and 611 of the Fair Work Act 2009 – costs incurred by Applicant – application responded to by Respondent vexatiously and without reasonable cause – Respondent had no reasonable prospect of success – Respondent caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter – indemnity costs awarded from the time the Applicant filed material – parties to confer as to quantum of costs.

Mr James Francis Camenzuli made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed from Companion Systems Pty Limited (the Respondent). A decision was issued on 17 May 2024 where I determined that Mr Camenzuli was unfairly dismissed within the meaning of section 385 of the Act[1] and ordered the Respondent to pay compensation.[2]

On 31 May 2024, Mr Camenzuli lodged an application for costs against the Respondent pursuant to ss.400A and 611 of the Act. A costs application made by a party must be made within 14 days after the Commission determines the matter, or the matter is discontinued.[3] I am satisfied the costs application was made within 14 days after I determined the matter on 17 May 2024.

Directions were issued requiring the parties to file written evidence and submissions. On 10 July 2024, the parties requested that the hearing be vacated and that the matter be determined on the papers. Having reviewed the material, I considered it appropriate to do so.

Relevant legislation and principles

The Act provides the general rule that parties must bear their own costs in proceedings before the Commission.[4] The Act also facilitates exceptions to this general rule and empowers the Commission to award costs in specific circumstances. Sections 400A and 611(2) are two such exceptions.

Whilst the Act provides exceptions to the general rule, such power is to be exercised with caution and in clear senses.[5] It is only in rare and exceptional circumstances that costs will be awarded.

Section 400A of the Act provides as follows:

“400A 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…

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 James Francis Camenzuli v Companion Systems Pty Limited

Details

AGLC: James Francis Camenzuli v Companion Systems Pty Limited [2025] FWC 2166
Case: [2025] FWC 2166
Decision Date: 24 JULY 2025

CaseChat Overview and Summary

In the Fair Work Commission, James Francis Camenzuli applied for indemnity costs against Companion Systems Pty Limited following a finding that he had been unfairly dismissed. The Commission had determined that the dismissal was harsh, unjust, and unreasonable and ordered compensation to be paid. The Respondent had conducted itself in an unreasonable and vexatious manner in the proceedings. The Respondent had presented mutually inconsistent grounds for resisting the dismissal and made false allegations of theft and harassment against Mr Camenzuli. The Respondent also made false assertions regarding the date of the dismissal and the delivery of Mr Camenzuli's mobile phone. The Respondent's case was baseless and had no reasonable prospect of success. It is appropriate to award indemnity costs to Mr Camenzuli on account of the Respondent's conduct. The Respondent's allegations against Mr Camenzuli, including sending malware and harassing staff, were completely unfair and false. The Respondent was on notice as to the strength of Mr Camenzuli's case when his material was filed and served on 11 September 2023. The parties are directed to confer as to the relevant quantum of costs and their calculation according to the Act's Schedule of Costs set out in the Fair Work Regulations 2009. Consent orders should be filed in the Commission within 21 days of today. Should there be any disagreement about these amounts, I grant liberty to apply at short notice for final orders. Should the parties otherwise agree to settle the costs application on some other basis, they can advise my Chambers accordingly.

Orders