Martin Bernard Vink v LED Technologies Pty Ltd (ACN 100 887 474)

[2014] HCASL 21

MARTIN BERNARD VINK

v

LED TECHNOLOGIES PTY LTD (ACN 100 887 474)

[2014] HCASL 21
M74/2013

1. The applicant seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Tracey J) dismissing the applicant's appeal against orders of the Federal Magistrates Court of Australia.  The Federal Magistrate (Riley FM) had dismissed the applicant's claim under the Fair Work Act 2009 (Cth) against his former employer, the respondent. The applicant had alleged that the respondent had taken adverse action against him (by terminating his employment) because of his age.

2. Riley FM was not satisfied that the applicant instituted the proceedings against the respondent vexatiously or without reasonable cause[1] or that the applicant's unreasonable act or omission caused the respondent to incur costs[2].  Accordingly, her Honour made no order as to costs.

   [1]Fair Work Act 2009 (Cth), s 570(2)(a).

   [2]s 570(2)(b).

3. The applicant advances no arguable reason to doubt the correctness of the conclusions reached by Tracey J about the substance of the appeal against the dismissal of the applicant's substantive claim.  An appeal to this Court on those issues would enjoy no prospect of success.

4. Tracey J ordered that the appeal be dismissed with costs and gave no separate consideration in his reasons for judgment as to why an order for costs was appropriate. If, as the applicant now seeks to allege, Tracey J made the order that the applicant pay the costs of the appeal without hearing argument about whether s 570 of the Fair Work Act applied, it was open to the applicant, at or immediately after the delivery of reasons for judgment, to draw the issue to the attention of Tracey J and seek to be heard.  The applicant did not do this.

5. The applicant now applies for special leave to this Court out of time and seeks to agitate a question about costs which could and should have been the subject of separate submissions in the Federal Court.

6. It would not be in the interests of justice generally, or in this particular case, that there should be a grant of special leave to appeal restricted to the question of costs.

7. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
12 February 2014 S.M. Crennan