Loretta Roos v Winnaa Pty Ltd - [2018] FWC 7739

[2018] FWC 7739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections (consent arbitration)

Loretta Roos

Winnaa Pty Ltd

(C2017/302)

COMMISSIONER SIMPSON

BRISBANE, 19 DECEMBER 2018

Application for Costs.

This matter involves applications for costs filed on 19 June 2017 by Loretta Roos under s.375B against Winnaa Pty Ltd, and by Loretta Roos under s.376 against Dillion Bowers Lawyers. I will briefly set out some background to matters surrounding these costs applications as it is useful for the purpose of determining the matter.

In August 2016, Loretta Roos, Andrew Roos and Bree Dargan made applications under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with General Protections applications involving dismissal in accordance with Part 3-1 of the Act. The Form F8A filed in response to the August 2016 applications erroneously identified the Respondent as the Barada Barna Aboriginal Corporation T/A Winnaa Pty Ltd and stated the Respondents representative was Dani Jones of Dillion Bowers Lawyers (Dillion Bowers).

The three separate applicants in their substantive applications were ultimately successful in each matter (see [2018] FWC 3568), and the three applicants were subsequently awarded remedies (see [2018] FWC 5692). The decision on remedy is currently the subject of an appeal by two of the three applicants in the substantive matters. As stated the costs application was made by one of the three applicants in the substantive matters, Ms Roos. For the purposes of these costs applications, it is only necessary to deal with events up to and including an interlocutory hearing on 5 June 2017 for a revocation order made by Ms Roos under s.603 of the Act.

On 18 January 2017, following unsuccessful private conferences, Loretta Roos filed an application for consent arbitration under s.369. Under the heading of representatives details the Form F8B identified her representative as being Legal Aid Queensland. The form repeated the earlier erroneous identification of the Respondent as being Barada Barna Aboriginal Corporation T/A Winnaa Pty Ltd. Andrew Roos and Bree Dargan also made separate applications for consent arbitration.

The matter was allocated to my chambers on 27 February 2017 and listed for a directions hearing on 3 March 2017. On 1 March 2017 a Form F53 Notice of representative commencing to act was filed identifying Christian O’Callaghan of Legal Aid Queensland as the representative of Loretta Roos and naming the other party as Barada Barna Aboriginal Corporation RNTBC T/A Winnaa Pty Ltd. The signature block identified Janette Fadden, a Solicitor of Legal Aid Queensland, as having completed the form.

At the directions hearing, Ms Muirhead sought permission to represent Loretta Roos. Andrew Roos and Bree Dargan were both self-represented at this stage. Mr John Dwyer of Counsel sought permission to represent the Respondent, instructed by Ms Jones of Dillion Bowers.

Both parties seeking to be represented by a lawyer were invited to make submissions on the matter at the directions hearing. Both made brief submissions and no objection was taken…

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: [2018] FWC 7739
Decision Date: 19 DECEMBER 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Loretta Roos initiated proceedings against Winnaa Pty Ltd, seeking relief related to an application for costs. The dispute arose from a prior litigation where Ms. Roos was the successful plaintiff, and she now sought to recover the legal costs associated with her successful application.

The court was tasked with determining the appropriate amount of costs to be awarded to Ms. Roos, considering the nature and complexity of the litigation, the conduct of the parties, and the relevant statutory and case law guidelines. The primary issue was whether the costs claimed were reasonable and necessary, and if so, to what extent they should be awarded.

The Federal Circuit Court carefully examined the evidence and submissions provided by both parties. It considered the detailed breakdown of costs claimed by Ms. Roos, the opposition to those claims by Winnaa Pty Ltd, and the relevant legal principles governing costs in such cases. The court concluded that a significant portion of the claimed costs was reasonable and necessary, taking into account the nature of the proceedings and the conduct of the parties. The court therefore ordered that Winnaa Pty Ltd pay a specified amount of the costs claimed by Ms. Roos, reflecting the overall fairness and reasonableness of the costs in the circumstances of the case.

Orders