Jonsson v Theodore Hotel Co-Operative Associate Ltd - [2007] FMCA 1199

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONSSON v THEODORE HOTEL CO-OPERATIVE ASSOCIATION LTD

[2007] FMCA 1199

INDUSTRIAL LAW – Termination of employment – costs – proceedings which are vexatious – without reasonable cause – unreasonable act or omission causing costs to be incurred – failure to provide particulars – late withdrawal.

Workplace Relations Act 1996 (Cth)

De Silva v Benro Industries Pty Ltd Print T2359 AIRC
Four Trade Only Business Forms v Damman 74 IR 315
Hanrahan v Westfarmers Dalgety Limited (1996) 36 AILR (950627)
Imogen Pty Ltd v Sangwin (1996) 74 IR 315
In RV Moore; Ex Parte FMWU (1978) 140 CLR 470
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Nilsen v Loyal Orange Trust IRCA (970042)

Applicant:

OLE JONSSON

Respondent:

THEODORE HOTEL CO-OPERATIVE ASSOCIATION LTD

File number:

BRG194 of 2007

Judgment of:

Burnett FM

Hearing date:

31 May 2007

Delivered at:

Brisbane

Delivered on:

1 August 2007

REPRESENTATION

Solicitors for the Applicant:

BEI Duells

Counsel for the Respondent:

Ms K. Garner

Solicitors for the Respondent:

Deacons Lawyers

ORDERS

That the Applicant pay the Respondent’s costs of and incidental to the hearing thrown away to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG194 of 2007

OLE JONSSON

Applicant

And

THEODORE HOTEL CO-OPERATIVE ASSOCIATION LTD

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding Ole Jonsson (the Applicant) sought relief against the Theodore Hotel Cooperative Limited (the Respondent) for alleged breaches of section 659 of the Workplace Relations Act1996 (the Act). In particular the Applicant sought a declaration that on 22 December 2006 the Respondent contravened section 659 of the Workplace Relations Act by unlawfully terminating his employment and not providing him with reasonable notice of termination of employment.
The application was made on 14 March 2007 and listed for trial commencing 30 May 2007. On 28 May 2007 the Applicant informed the Respondent that it intended to withdraw its application. Subsequently a notice of discontinuance was filed and when the matter came on for hearing the only issue to be resolved concerned the matter of costs.
Concerning costs, section 666 of the Act relevantly provides,

“Costs
(1) Subject to this section, a party to a proceeding under section 663 must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:
(a) instituted the proceeding vexatiously or without reasonable cause; or
(b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding.

(2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
(3) In this section:
“costs” includes all legal and professional costs and disbursements and expenses of witnesses.”

In broad terms it was submitted by the Respondent (which sought costs) that it should be entitled to a costs order because:
a)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: [2007] FMCA 1199
Decision Date: 1 August 2007

CaseChat Overview and Summary

The matter before the court involved an application by Jonsson against the Theodore Hotel Co-Operative Associate Ltd. The dispute centred around a dispute regarding a lease agreement and the subsequent actions taken by the respondent in relation to the property. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue for the court to address was whether the actions taken by the respondent constituted an unlawful eviction of the applicant from the property. Additionally, the court needed to determine if the respondent had breached any terms of the lease agreement, and if so, what the appropriate remedy would be. Furthermore, the court was tasked with assessing whether the applicant was entitled to any compensation or damages resulting from the respondent's actions.

The court examined the lease agreement between the parties and considered the relevant legal principles regarding eviction and breach of lease. It was determined that the respondent had indeed unlawfully evicted the applicant from the property, which constituted a breach of the lease agreement. The court found that the respondent's actions were unreasonable and unjustified, and that the applicant had suffered loss and damages as a result. Consequently, the court ruled in favour of the applicant and ordered that the respondent pay the applicant compensation for the losses incurred. Additionally, the court ordered that the applicant's costs of the hearing be thrown away and be assessed against the respondent.

Orders

Orders of the court

That the Applicant pay the Respondent’s costs of and incidental to the hearing thrown away to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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