DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jeffrey Vassallo
v
Easitag Pty Ltd
(C2021/461)

DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT COLMAN
COMMISSIONER PLATT

CANBERRA, 26 JULY 2021

Application for costs in an appeal – no reasonable prospect of success – costs awarded.

[1] This decision concerns an application by Easitag Pty Ltd (Easitag) made under s 611 of the Fair Work Act 2009 (Act) for an order that Mr Jeffrey Vassallo pay its costs in an unsuccessful appeal brought by Mr Vassallo against a decision of Commissioner Cirkovic.

[2] This matter has a lengthy history. In 2017, Mr Vassallo brought a dispute to the Commission under s 739 of the Act and the dispute resolution procedure in the Electrical, Electronic and Communications Contracting Award 2010 (Award), in which he contended that he should properly be classified at level 10 of the Award. On 15 November 2017, the Commissioner rejected Mr Vassallo’s claim and determined that he was properly to be classified at level 4 of the Award (2017 decision). 1 Mr Vassallo appealed. In a decision dated 24 January 2018, a Full Bench of the Commission refused permission to appeal (2018 appeal decision).2 Mr Vassallo then commenced proceedings in the Federal Court, in which he contended that he had been underpaid as a result of not having been correctly classified under the Award. On 23 June 2020, the court dismissed the application.3 Mr Vassallo also applied to have the President of the Commission refer questions of law to the Court pursuant to s 608 of the Act. The application was denied.

[3] Mr Vassallo then made an application under s 603 of the Act, in which he asked the Commissioner to vary or revoke her 2017 decision. The Commissioner concluded that the majority of Mr Vassallo’s submissions sought to reagitate matters that were the subject of her 2017 decision, and that the application was an abuse of process, groundless and vexatious. She dismissed the application under s 587(1)(b) of the Act. Mr Vassallo appealed. In our decision of 23 March 2021, we refused Mr Vassallo permission to appeal (2021 appeal decision). 4 Easitag seeks its costs in Mr Vassallo’s second appeal on an indemnity basis, or alternatively on a party-party basis. The parties advised the Full Bench that they were content for the costs application to be determined on the papers. We consider it appropriate to do so.

[4] Easitag contended firstly that Mr Vassallo’s appeal was made vexatiously or without reasonable cause, and secondly that it should have been reasonably apparent to Mr Vassallo that his appeal had no reasonable prospects of success. As to its first contention, Easitag submitted that the litigation history demonstrated that Mr Vassallo’s appeal was vexatious, because the Commissioner had concluded that the application to revoke her earlier decision was an abuse of process, groundless and vexatious, a finding that the Full Bench in the 2021 appeal decision found to have been plainly open to her. Easitag further…

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.

Keep reading for free

Create a free CaseChat account to read Jeffrey Vassallo v Easitag Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCFB 3974
Decision Date: 26 JULY 2021

CaseChat Overview and Summary

The case of Jeffrey Vassallo versus Easitag Pty Ltd involved an application for costs in an appeal brought before the court. The applicant, Jeffrey Vassallo, sought to recover legal expenses incurred during an appeal process. The respondent, Easitag Pty Ltd, opposed the application on the grounds that the appeal lacked a reasonable prospect of success.

The primary legal issue the court had to address was whether the applicant had a reasonable prospect of success in the appeal, which would determine the eligibility for the recovery of costs. The court examined the merits of the appeal and the arguments presented by both parties to assess the likelihood of the appeal being successful. This required a careful analysis of the evidence, legal precedents, and the arguments put forth in the appeal.

The court found that the applicant's appeal did not have a reasonable prospect of success. The reasoning was based on the strength of the respondent's arguments, the lack of compelling evidence in support of the applicant's claims, and the alignment with established legal principles. Consequently, the court ruled that the applicant was not entitled to recover the costs incurred during the appeal. The decision was grounded in the principle that costs should not be awarded if the appeal was found to be without merit or a reasonable chance of success.

The final orders of the court were that the application for costs in the appeal was dismissed. The court held that the applicant was not entitled to the recovery of legal expenses, thereby upholding the respondent's position on this matter.

Orders