McAlister v Yara Australia Pty Ltd - [2022] FedCFamC2G 174

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McAlister v Yara Australia Pty Ltd [2022] FedCFamC2G 174

File number(s): SYG 463 of 2016

Judgment of: JUDGE OBRADOVIC

Date of judgment: 16 March 2022

Catchwords: INDUSTRIAL LAW – Costs – application for costs pursuant to s.570(2)(b) of the Fair Work Act 2009 (Cth) – – whether costs incurred because of an unreasonable act or omission – whether unreasonable failure to accept offer of compromise – no costs order made.

Legislation: Fair Work Act 2009 (Cth), ss.117, 570
Federal Court of Australia Act 1976 (Cth), ss.37M, 37N
Federal Circuit Court Act 1999 (Cth)

Cases cited: Adamczak & Alsco Pty Ltd (No.4) [2019] FCCA 7
Bywater v Appco Group Australia Pty Ltd [2019] FCA 799
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143
Hutchinson v Comcare (No.2) [2017] FCA 370
McAlister v Yara Australia Pty Ltd [2021] FCCA 1409
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No.5) [2021] FCA 1645
Ryan v Primesafe [2015] FCA 8
Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14
Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Division: Division 2 General Federal Law

Number of paragraphs: 50

Date of hearing: 28 February 2022

Place: Parramatta

Counsel for the Applicant: Mr Cassimatis

Solicitors for the Applicant: Petrine Costigan Lawyers

Counsel for the Respondent: Ms Andelman

Solicitors for the Respondent: HFW Australia
ORDERS

SYG 463 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JANELLE MCALISTER

Applicant

AND:
YARA AUSTRALIA PTY LTD

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

16 MARCH 2022

THE COURT ORDERS THAT:
1.The Application for Costs filed on 27 August 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:

These are reasons for judgment with respect to a costs application made pursuant to s.570(2)(b) of the Fair Work Act 2009 (Cth) (“the FWA”).
On 25 June 2021, the Court made orders and delivered its reasons for judgment in McAlister v Yara Australia Pty Ltd [2021] FCCA 1409.
The applicant had been employed by the respondent for almost 19 years before her dismissal, on 16 October 2015. The applicant had commenced proceedings on 2 March 2016, alleging breach of contract and contraventions of the FWA. The final hearing commenced on 12 August 2017 and took seven days that spanned over a year and a half.
The Court held that the respondent had not been entitled…

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: [2022] FedCFamC2G 174
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Janelle McAlister, brought proceedings against the respondent, Yara Australia Pty Ltd, for alleged breaches of contract and contraventions of the Fair Work Act 2009 (Cth). The court found that the respondent was not entitled to terminate the applicant’s employment summarily and that her employment had been wrongfully terminated. The applicant was successful in her breach of contract claim but unsuccessful in respect of the alleged contraventions of the FWA. The respondent now seeks an order that the applicant pay its costs of the proceedings from 9 August 2019 on an indemnity basis, or in the alternative on a party-party basis as agreed or assessed. The respondent submits that the applicant’s refusal to accept the offer of settlement made on 9 August 2019 was an unreasonable act or omission that caused the respondent to incur costs, and/or in the alternative, that the applicant’s maintenance of aspects of her claim that were ultimately unsuccessful and the conduct of her case were unreasonable acts or omissions that caused the respondent to incur costs.

The court considered the relevant legal principles relating to costs in fair work proceedings. The court held that the discretion to award costs pursuant to s.570 of the FWA should be exercised with some caution so as to avoid parties being discouraged, for fear of an adverse costs order, from pursuing litigation under the FWA in the manner which they deem best. The court found that the applicant’s rejection of the offer to settle the proceedings was not an unreasonable act or omission and that the applicant’s prosecution of her redundancy and adverse action claims were not unreasonable acts or omissions.

The court considered the stage of the proceeding when the offer was made, the time afforded to the offeree to consider the offer, the extent of compromise involved, the offeree’s prospects of success, assessed as at the date of the offer, and the clarity with which the terms of the offer were expressed. The court found that the offer was made on a late afternoon on the last business day before the hearing was due to commence, it was open for a very limited period of time, and it was made in circumstances where there was a Notice to Produce that was issued which was returnable on the first day of hearing. The court also found that the applicant’s claims were not without merit and that in all of the circumstances, the rejection of the offer does not amount to an unreasonable act or omission on the applicant’s part.

For all those reasons, the respondent’s application for costs is dismissed.

Orders