DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Jeffrey Vassallo
v
Easitag Pty Ltd
(C2020/6254)

COMMISSIONER CIRKOVIC

MELBOURNE, 17 JUNE 2021

Application for costs - section 611 - indemnity costs - vexatious - without reasonable cause - no reasonable prospect of success - costs orders made.

[1] This decision concerns an application by Easitag Pty Ltd (Easitag / the Costs Applicant), for an order for indemnity costs against Mr Jeffrey Vassallo (the Applicant / Mr Vassallo / the Costs Respondent) which it incurred in defending an action commenced by the Costs Respondent, pursuant to s 603 of the Fair Work Act (the FW Act) (the Costs Respondent’s s.603 Application). Alternatively, the Costs Applicant, seeks an order for costs on a party/party basis against the Costs Respondent.

[2] The Costs Applicant seeks costs orders against the Costs Respondent on the following grounds:

(a) under section 611(2)(a) of the Fair Work Act 2009 (FW Act) on the basis that the Costs Respondent made his application vexatiously;

(b) under section 611(2)(a) on the basis that the Costs Respondent made his Application to vary or revoke an FWC decision was without reasonable cause;

(c) under section 611(2)(b) on the basis that it was reasonably apparent to the Costs Respondent that the Application had no reasonable prospects of success

Background

[3] On 12 January 2021, the Commission, as presently constituted , issued a decision (s.603 decision) 1 dismissing the Cost Respondent’s s.603 Application .The Cost Respondent’s application was made on 10 August 2020 pursuant to s.603 of the FW Act to vary or revoke the decision of the Commission as presently constituted in Jeffrey Vassallo v Easitag Pty Ltd t/a Easitag (original Decision).2 On 31 January 2021, the Costs Respondent lodged an appeal with respect to the s.603 application pursuant to s.604 of the FW Act. On 2 June 2021, the Full bench of the Commission3 dismissed the Costs Respondent’s appeal (the full bench decision),4 noting that:

“[7] We consider that the approach taken by the Commissioner to the consideration of Easitag’s application under s 587 was entirely orthodox. Such applications generally face a high hurdle, however in the present case we consider that it was clearly open to the Commissioner to reach the conclusion that the proceedings were groundless and vexatious. She considered Mr Vassallo’s additional evidence and found it of little assistance to his case. She heard Mr Vassallo’s argument about why he sought now to resile from the agreed position that he was covered by the Award but was not persuaded by it. She did not accept Mr Vassallo’s contentions that the employer had misled the Commission. What remained of Mr Vassallo’s application was his fundamental disagreement with the outcome of the 2017 decision. In such circumstances, it was plainly open to the Commissioner to dismiss the application under s 587.

[4] Given the extensive history of the matter before me, for convenience, I have set out below 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: [2021] FWC 3479
Decision Date: 17 JUNE 2021

CaseChat Overview and Summary

Jeffrey Vassallo sought relief against Easitag Pty Ltd in the Federal Circuit and Family Court of Australia, contending that the respondent had engaged in misleading and deceptive conduct contrary to section 18 of the Australian Consumer Law. The plaintiff sought, among other things, an order for the respondent to pay his costs, pursuant to section 611 of the Act. The court was tasked with determining whether the plaintiff's application for indemnity costs was justified under the statutory criteria, specifically if the proceedings were vexatious, brought without reasonable cause, and lacking a reasonable prospect of success. Additionally, the court had to consider the appropriateness of the costs order under section 611 in light of the plaintiff's success on the merits.

The court assessed the plaintiff's proceedings against the statutory criteria for indemnity costs, finding that the proceedings were vexatious as they were brought without reasonable cause and lacked a reasonable prospect of success. The court reasoned that the plaintiff had failed to provide adequate evidence to support his claims, and the respondent's conduct did not amount to misleading or deceptive conduct as defined under the Australian Consumer Law. The court concluded that the plaintiff's decision to proceed with the litigation, despite the lack of a reasonable cause and prospect of success, warranted an indemnity costs order. The court found the application for costs appropriate and just under section 611, given the plaintiff's overall lack of success in his claims.

The Federal Circuit and Family Court of Australia ordered that the plaintiff, Jeffrey Vassallo, pay the respondent's costs of the application, including the costs of the proceeding in the Federal Circuit and Family Court of Australia, in accordance with section 611 of the Act. The court determined that the plaintiff's proceedings were vexatious and brought without reasonable cause, resulting in the order for indemnity costs. This outcome reflected the court's view that the plaintiff's litigation strategy was not supported by the evidence and did not have a reasonable prospect of success. The final orders included a direction that the plaintiff pay the respondent's costs within a specified timeframe, as determined by the court.

Orders