Martin Bernard Vink v LED Technologies Pty Ltd (No.2)
[2012] FMCA 1001
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTIN BERNARD VINK v LED TECHNOLOGIES PTY LTD (No.2) | [2012] FMCA 1001 |
| INDUSTRIAL LAW – Costs – whether proceeding instituted without reasonable cause – whether the applicant’s unreasonable act caused the respondent to incur costs. |
| Fair Work Act 2009 ss.570(2)(a), 570(2)(b) |
| Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 57; [1992] FCA 539 Vink v LED Technologies Pty Ltd [2012] FMCA 917 |
| Applicant: | MARTIN BERNARD VINK |
| Respondent: | LED TECHNOLOGIES PTY LTD |
| File number: | MLG 1798 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | By way of written submission |
| Date of last submission: | 23 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Counsel for the Respondent: | S L Bingham |
| Solicitors for the Respondent: | Griffith Hack Lawyers |
ORDERS
The respondent’s application for costs made orally on 9 October 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1798 of 2011
| MARTIN BERNARD VINK |
Applicant
And
| LED TECHNOLOGIES PTY LTD |
Respondent
REASONS FOR JUDGMENT
This is an application for costs following the dismissal of the application in the matter of Vink v LED Technologies Pty Ltd [2012] FMCA 917. The respondent claims costs under s.570(2)(a) and, in the alternative, under s.570(2)(b) of the Fair Work Act 2009.
Section 570 of the Act relevantly provides as follows:
Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs;
…
In relation to the claim under s.570(2)(a) of the Act, the respondent said that the proceedings were issued without reasonable cause.
The respondent said that the relevant test was explained by Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 57; [1992] FCA 539 at [29] as follows:
whether, upon the facts apparent to the applicant at the time of instituting proceedings, there was no substantial prospect of success.
Wilcox J went on to explain in the same paragraph that:
If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.
I do not consider that, on the facts apparent to the applicant at the time that he instituted the proceedings, he had no substantial prospect of success. “Substantial”, in this context, means “with substance” as opposed to “fanciful”. It does not mean that the applicant was more likely to succeed than not.
The court accepted that Mr Clerk told the applicant that he was dismissed because Mr Ottobre wanted a “youthful and vibrant” work atmosphere. That was sufficient evidence to give the applicant a substantial prospect of success in his claim that he was dismissed for reasons of his age.
Some of the matters relied upon by the respondent to establish that the applicant should have known he had no substantial prospect of success were matters contained in Mr Ottobre’s affidavits, which were filed after the commencement of the proceedings, or were matters that emerged during the hearing itself. Those matters all occurred too late to have a bearing on the present question.
In relation to the claim under s.570(2)(b) of the Act, the respondent said that the applicant’s continuation of his claim in the light of various matters including the matters referred to in paragraph 7 above, and the applicant’s rejection of an offer made on 13 July 2012, were unreasonable acts that caused the respondent to incur costs.
In relation to the refusal of an offer of compromise, I note that in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, Warren CJ, Maxwell P and Harper AJA made it clear at [18] to [28] that even where a Calderbank offer has been refused, there is no presumption that indemnity costs are payable. The question is always whether the offer was reasonably rejected, in the circumstances that existed at the time.
Moreover, in Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [9], Kenny J noted that, in that case, as the respondent had not provided its affidavits before the offer expired, the applicant was not:
afforded any realistic opportunity to consider the strength or otherwise of the respondent’s position vis á vis its own.
The same may be said in the present case. On 30 April 2012, the respondent had filed one affidavit sworn by Mr Ottobre. However, the respondent filed another affidavit sworn by Mr Ottobre on 23 August 2012, after the offer had expired. The second affidavit contained material that proved to be very significant to the ultimate determination of the case. In addition, facts that played a significant part in the final determination of the matter only emerged at the hearing.
Moreover, a number of the matters that the respondent had relied on in the early stages of the proceeding, or before Fair Work, were found to be false or were not ultimately relied upon. For example, the respondent alleged that the applicant was dismissed because he had paid an account of $189,000 twice. However, Mr Ottobre conceded in cross examination that he had not known about the second payment when he decided to dismiss the applicant. By way of further example, the respondent said early in the piece that the applicant had failed to pay Mr Ottobre’s personal telephone bill. However, that allegation was later withdrawn. There were other, similar shifts in the respondent’s position.
In these circumstances, where aspects of the respondent’s explanations for the dismissal were misconceived, and where a proper explanation for the dismissal did not clearly emerge until trial, it cannot be said that it was unreasonable for the applicant to reject the respondent’s offer.
For the same reasons, I do not consider that it was unreasonable for the applicant to continue with the proceedings to the conclusion of the trial. The respondent’s case was not clearly articulated at an early stage. Indeed, even at the trial, important points in the respondent’s case were withdrawn or, conversely, articulated for the first time.
I do not consider that there is any proper basis for a costs order against the applicant in this case. There will be orders accordingly.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 1 November 2012
3
4
1