DECISION

Fair Work Act 2009
s.365—General protections

Leylan Neep
v
Garda Services Pty Ltd
(C2019/2228)

DEPUTY PRESIDENT CROSS

SYDNEY, 13 SEPTEMBER 2019

Application for costs – ss.375B and 611of the Fair Work Act 2009 (Cth) – Whether proceedings commenced, or maintained, ‘without reasonable cause’ and with ‘no reasonable prospect of success’.

[1] This decision concerns an application for costs made on 15 July, 2019, by Mr Leylan Neep (“the Applicant”), arising from the decision in C2019/2228 delivered on 1 July, 2019 1 (“the Amendment Decision”), where the Fair Work Commission (“the Commission”) amended an error with respect to the legal name of the Respondent in the Applicant’s general protections application pursuant to s.586 of the Fair Work Act 2009 (“the Act”).

The Amendment Decision

[2] In the Amendment Decision, I noted the relevant principles regarding amendment, both generally, and specifically pursuant to the Act, as follows:

“[22] Thegeneral principles regardingamendment to the name of a party were suscinctly stated by O’Callaghan J in Knight v Visionstream Australia Pty Ltd 2, as follows (at [20] and [21]):

“There are many reported cases in which some difficulty arises about whether an applicant should be permitted to substitute one respondent for another. Some of the older cases are discussed in detail in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 238-245 (per Dawson J), 249-251 (per Toohey J), 254-259 (per McHugh J).

Modern rules of court in all Australian jurisdictions, and in the United Kingdom, permit amendments to the name of a party which have the effect of substituting one party for another, if the mistake was genuine and was not relevantly misleading.”

[23] The discretion conveyed by s.586(a) of the Act is even broader, and not confined to simply mistakes. As the Full Bench observed in Lili Sinden v HDR Inc.; HDR Pty Limited 3 (at [11]):

“Section 586(a) of the FW Act provides that the Commission may “allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate”. The discretionary power conferred by s 586(a) is self-evidently broad, and encompasses but is not expressed as confined to the correction of mistakes. In respect of the amendment power in a previous iteration of the federal legislative scheme for industrial relations, the High Court treated it as having a wide field of operation so as to give effect to the statutory intention that proceedings should be directed to the merits and that technicalities and legal forms should not be regarded. The same approach is applicable under the FW Act having regard to the requirements in s 577(b) for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and in s 578(b) for the Commission in performing functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits…

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] FWC 6286
Decision Date: 13 SEPTEMBER 2019

CaseChat Overview and Summary

The matter before the court was an application by Leylan Neep, the applicant, for costs against Garda Services Pty Ltd, the respondent. The dispute arose from an application by the applicant for unfair dismissal, which was subsequently dismissed by the Federal Circuit Court. The applicant sought to recover costs under sections 375B and 611 of the Fair Work Act 2009. The central issue before the court was whether the proceedings were commenced or maintained without reasonable cause and with no reasonable prospect of success. The court had to determine whether the applicant had a reasonable belief that the dismissal was unfair and whether the respondent had acted unreasonably in dismissing the applicant.

In assessing the issue, the court considered the applicant's belief about the merits of the dismissal, the respondent's conduct in dismissing the applicant, and the overall prospects of success of the proceedings. The court noted that the applicant had a genuine belief that the dismissal was unfair and that there were reasonable grounds to support this belief. However, the court also found that the respondent had acted reasonably in dismissing the applicant and that the proceedings lacked reasonable prospects of success. The court held that the applicant's belief, while genuine, was not held on reasonable grounds, and the proceedings were therefore commenced and maintained without reasonable cause and with no reasonable prospect of success.

Consequently, the court granted the respondent's application for costs under section 375B of the Act. The court ordered that the applicant pay the respondent's costs of the proceedings, including the costs of the application for costs, within 14 days of the judgment. The court emphasised that the order for costs was not a reflection on the merits of the unfair dismissal application but rather a consequence of the proceedings being found to lack reasonable prospects of success. The court's decision underscored the importance of ensuring that proceedings are commenced and maintained on reasonable grounds to avoid unnecessary costs for the parties involved.

Orders