Mark Lawrence v Metro Trains Melbourne Pty Ltd - [2022] FWC 705

[2022] FWC 705

The attached document wholly replaces the document previously issued with the code [2021] FWC 6013 on 29 March 2022 to correct document referencing.

Associate to Commissioner Harper-Greenwell

Dated 30 March 2022.

[2022] FWC 705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Lawrence
v

Metro Trains Melbourne Pty Ltd

(U2020/11779)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 29 MARCH 2022

S.400A and s.611 application for costs – application refused.

This decision concerns an application lodged by Mr Mark Lawrence (Costs Applicant) for costs (the Costs Application) against Metro Trains Melbourne Pty Ltd (Costs Respondent, Metro Trains) pursuant to ss.400A and 611 of the Fair Work Act 2009 (Cth) (the Act).

On 31 August 2020, Mr Lawrence made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy (the Unfair Dismissal Application). The matter was heard and determined, and I issued a decision on the merits of the Unfair Dismissal Application[1] (the Substantive Decision).

On 8 September 2021, I issued a further decision[2] (the Remedy Decision) in which I ordered Mr Lawrence be reinstated to the position he held immediately prior to dismissal, continuity of service and restoration of lost pay (limited to the period between 12 January 2021 and the date of Mr Lawrence’s reinstatement, and to be offset by any successful Workcover Claim).

Following receipt of the Costs Application, I issued directions requiring Mr Lawrence and Metro Trains to file written submissions in regard to the Costs Application. The parties each filed their written submissions accordingly.

The Costs Application was then determined on the papers.

Statutory Framework

The Commission has the discretionary power to award costs against a party to an unfair dismissal matter if it is satisfied that one party caused the other party to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter. [3] The Commission also has the discretionary power to award costs where it is satisfied that a party made, or responded to, and application vexatiously or without reasonable cause, or that it ought to have been apparent that the person’s application, or response to an application, had no reasonable prospects of success.[4] However, the presumption of the Act is that each party bears their own costs.[5]

The Costs Application having been lodged on 21 September 2021 was made in compliance with the requirement under s.402 of the Act to lodge an application for costs within 14 days of the determination of the matter.

Submissions

Costs Applicant

Mr Lawrence submits that costs should be awarded against Metro Trains because its defence was made without reasonable cause and it should have been apparent to Metro Trains that it had no reasonable prospects of success.[6] In addition, Mr Lawrence contends that Metro Trains acted unreasonably in failing to accept his settlement offer, which consequently caused him to incur significant costs in taking his application to hearing.[7]

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.

Keep reading for free

Create a free CaseChat account to read Mark Lawrence v Metro Trains Melbourne Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 705
Decision Date

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Mr Mark Lawrence for costs against Metro Trains Melbourne Pty Ltd (Metro Trains) pursuant to sections 400A and 611 of the Fair Work Act 2009. The matter arose out of a prior determination in which the Commissioner found that Mr Lawrence was unfairly dismissed by Metro Trains and ordered his reinstatement and payment of lost wages. The Commissioner in the present matter considered whether Metro Trains should be ordered to pay costs to Mr Lawrence on the basis that it unreasonably caused him to incur costs by failing to settle the matter and that its defence was made without reasonable cause or that it should have been reasonably apparent that it had no reasonable prospects of success.

The Commissioner noted that the power to award costs was discretionary and that there was a presumption that each party bears their own costs. The Commissioner considered the submissions of the parties and the relevant statutory provisions and authorities. The Commissioner found that there was no evidence before the Commission that Metro Trains acted unreasonably in failing to settle the matter or that it should have been reasonably apparent to Metro Trains that its defence had no prospects of success. The Commissioner concluded that the application for costs should be dismissed.

The Commissioner ordered that the application for costs be dismissed.

Orders