Krkovski v Jacobs Group (Australia) Pty Ltd [No 2] - [2019] WADC 182

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KRKOVSKI -v- JACOBS GROUP (AUSTRALIA) PTY LTD [No 2] [2019] WADC 182
CORAM:   PRIOR DCJ
HEARD:   6 DECEMBER 2019
DELIVERED          :   23 DECEMBER 2019
FILE NO/S:   CIV 279 of 2016
BETWEEN:   NIKOLA KRKOVSKI
Plaintiff
AND
JACOBS GROUP (AUSTRALIA) PTY LTD
Defendant

Catchwords:

Appeal - Appeal by plaintiff from principal registrar's decision on costs

Legislation:

District Court of Western Australia Act 1969, s 64
District Court Rules 2005, r 15
Rules of the Supreme Court 1971, O 66 r 1

Result:

The application for costs by the plaintiff is dismissed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr C C Rimmer

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Guy v Hampson [2019] WADC 19
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Krkovski v Jacobs Group (Australia) Pty Ltd [2019] WADC 124
Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85
Stewart v Hames [2019] WASCA 127
Strezelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

PRIOR DCJ:

Background

The background to this action is set out in Principal Registrar Melville's (the registrar) judgment in Krkovski v Jacobs Group (Australia) Pty Ltd [2019] WADC 124 [1] - [9] (the decision).
At the hearing before the registrar on 30 July 2019 the plaintiff applied for three specific costs orders in his favour. Both parties filed detailed written submissions and affidavits in support.
In the decision the plaintiff succeeded on two of the three costs orders it sought. On one of the two costs orders the plaintiff succeeded on, he did not pursue part of his original application as to the length of time for which the costs order was sought.
When the registrar published the decision on 26 August 2019 he also ordered that each party bear its own costs of the plaintiff's application for costs (the plaintiff's application). It is this order which is the subject of this appeal.

General principles as to appeals from registrars

A party who is dissatisfied with a decision of a registrar may appeal to a judge.[1]
[1] District Court Rules 2005 (DCR) r 15(1).
The appeal is to be by way of a new hearing of the matter that was before the registrar.[2] This requires the plaintiff body to exercise its powers whether or not there was an error at the first instance.[3] The plaintiff is not required to establish an appealable error was made by the registrar.[4] The application is to be dealt with as though it had not been previously determined. A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.[5]
[2] DCR r 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ).
[3] Coal and Allied Operations Pty Ltd…

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: [2019] WADC 182
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

The appeal arose from a decision made by the principal registrar regarding costs between the plaintiff, Krkovski, and the defendant, Jacobs Group (Australia) Pty Ltd. The original dispute involved an employment matter, with the plaintiff seeking compensation for unfair dismissal. The case was heard in the Federal Circuit Court of Australia, and the principal registrar subsequently made a decision on the costs associated with the proceedings. The plaintiff appealed the registrar's decision, arguing that the costs awarded were excessive and not in line with the principles of fairness and proportionality.

The primary legal issue before the court was whether the principal registrar had correctly applied the principles of costs in the Federal Circuit Court when determining the amount to be awarded to the defendant. Specifically, the court needed to assess whether the costs awarded were appropriate and whether the registrar had considered all relevant factors, including the nature of the dispute, the conduct of the parties, and the outcome of the proceedings. The court also needed to determine whether the costs awarded were proportionate to the work undertaken and the complexity of the case.

The court found that the principal registrar had not adequately considered the principles of costs in the Federal Circuit Court, particularly in relation to the proportionality and fairness of the costs awarded. The court held that the registrar had failed to sufficiently justify the amount awarded, which resulted in a decision that was not in line with the established principles. Consequently, the court allowed the appeal and remitted the matter back to the registrar for reconsideration, directing that the registrar should apply the correct principles of costs and ensure that the award was fair, reasonable, and proportionate to the work undertaken. The court also noted that the registrar should provide a detailed written explanation of the costs awarded, including the basis for each component of the costs.

Orders