Knight v Visionstream Australia Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Knight v Visionstream Australia Pty Ltd (No 2) [2017] FCA 1562

Appeal from:

Knight v Visionstream Australia Pty Ltd [2017] FCCA 980

File number:

VID 587 of 2017

Judge:

O'CALLAGHAN  J

Date of judgment:

19 December 2017

Catchwords:

COSTS – where appellant successful on appeal – whether circumstances exist to warrant the making of a costs order in accordance with s 570(2) of the Fair Work Act 2009 (Cth)

Legislation:

Fair Work Act 2009 (Cth), ss 368, 570

Cases cited:

Knight v Visionstream Australia Pty Ltd [2017] FCA 1513

Stanley v Service to Youth Council Incorporated (No 3) (2014) 225 FCR 357

United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406

Date of hearing:

Heard on the papers

Date of last submissions:

18 December 2017

Registry:

Victoria

Division:

Fair Work

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Appellant:

Mr R A Millar

Solicitor for the Appellant:

McDonald Murholme Solicitors

Counsel for the Respondent:

Ms R Preston

Solicitor for the Respondent:

Piper Alderman

ORDERS

VID 587 of 2017
BETWEEN:	ANNETTE KNIGHT Appellant
AND:	VISIONSTREAM AUSTRALIA PTY LIMITED Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	19 DECEMBER 2017

THE COURT ORDERS THAT:

1.The respondent pay the appellant’s costs of the application before the Federal Circuit Court of Australia in MLG2576/2016 and of the appeal in this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. On 13 December 2017 the Court published reasons allowing the appellant’s appeal, setting aside the orders of the Federal Circuit Court of Australia (the FCCA) made on 12 May 2017 and remitting the matter.  The parties were asked to file short written submissions on the question of whether any order as to costs should be made: see Knight v Visionstream Australia Pty Ltd [2017] FCA 1513.

2. Those submissions have now been filed.  In my view, the respondent should pay the applicant’s costs of the appeal, and the costs of the hearing before the FCCA.

3. Section 570 of the Fair Work Act 2009 (Cth) relevantly provides:

   570Costs only if proceedings instituted vexatiously etc.

   (1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

   …

   (2)The party may be ordered to pay the costs only if:

   …

   (b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

   …

4. In Stanley v Service to Youth Council Incorporated (No 3) (2014) 225 FCR 357 at [38]-[40], White J summarised the principles applicable in cases of this type as follows:

   38.Section 570(2)(b) permits a Court to order a party to pay costs if the Court…