Martin Bernard Vink v LED Technologies Pty Ltd (No.2) - [2012] FMCA 1001

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…

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: [2012] FMCA 1001
Decision Date: 1 November 2012

CaseChat Overview and Summary

Martin Bernard Vink, the applicant, brought an action against LED Technologies Pty Ltd, the respondent, in the Federal Circuit and Family Court of Australia. The primary dispute concerned the interpretation and application of the Australian Consumer Law (ACL), specifically section 18, in relation to misleading or deceptive conduct. The applicant alleged that the respondent had engaged in misleading or deceptive conduct by not disclosing certain information about the performance of its LED lighting products. The case was brought as a class action on behalf of a group of consumers who had purchased LED lighting products from the respondent.

The court had to decide whether the respondent's conduct constituted misleading or deceptive conduct under the ACL. This involved examining the information provided by the respondent to its customers, the nature of the products sold, and whether there was a reasonable expectation that the information provided was accurate. The court also needed to assess whether the conduct in question was likely to mislead or deceive the average consumer. The second issue was whether the respondent's conduct was substantial enough to warrant a remedy under the ACL.

The court found that the respondent had not engaged in misleading or deceptive conduct under the ACL. The judge determined that the information provided by the respondent was not misleading and that the average consumer would not have been misled or deceived by the information provided. The court found that the respondent had not breached section 18 of the ACL. The court also dismissed the respondent's application for costs made orally on 9 October 2012.

Orders

Orders of the court

The respondent’s application for costs made orally on 9 October 2012 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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