MCKELLAR v Jetstar Airways Pty Ltd (No.3) - [2010] FMCA 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKELLAR v JETSTAR AIRWAYS PTY LTD (No.3)

[2010] FMCA 672

PRACTICE AND PROCEDURE – Costs – costs thrown away.

Workplace Relations Act 1996 (Cth), s.824
Fair Work Act 2009 (Cth)

Federal Magistrates Court Rules 2001
Federal Court Rules 1979

Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
Welsh v Allblend Holdings Pty Ltd (No.3) [2010] FMCA 378

Applicant:

ANTHONY MCKELLAR

Respondent:

JETSTAR AIRWAYS PTY LTD (ABN 33 069 720 243)

File Number:

SYG 2210 of 2009

Judgment of:

Raphael FM

Date of Last Submission:

26 August 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Kimber SC and Mr J Nolan

Solicitors for the Applicant:

Australian & International Pilots Association

Counsel for the Respondent:

Mr P O'Grady

Solicitors for the Respondent:

Freehills

ORDERS

The Applicant pay the Respondent the sum of $30,574.02.
The Respondent pay the Applicant the sum of $14,519.81, being the balance of the payment in lieu of 2 months’ notice.
The payment due under the order in paragraph 2 is set off against the payment due under the order in paragraph 1.
The Applicant pay the Respondent the sum of $2,096.19, being interest on the Balance payable by the Applicant to the Respondent ($16,054.31) under the order in paragraph 3.
The Applicant pay 80% of the Respondent’s costs thrown away by the adjournment on 22 March 2010, such costs, if not agreed, to be assessed pursuant to O 62 Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2210 of 2009

ANTHONY MCKELLAR

Applicant

And

JETSTAR AIRWAYS PTY LTD (ABN 33 069 720 243)

Respondent

REASONS FOR JUDGMENT

On 9 August 2010 I delivered my reasons for judgment in this matter. I ordered that the parties bring in short minutes of order to reflect my reasons and make submissions as to cost within 14 days. The parties have agreed minutes of proposed orders in relation to the substantive proceedings and made submissions to me as to the award of cost under s.824 of the Workplace Relations Act 1996 (Cth) (“WRA”). It has been suggested in this Court that any award of costs should now be made under the Fair Work Act 2009 (Cth); Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 at [66]-[67] and Welsh v Allblend Holdings Pty Ltd (No.3) [2010] FMCA 378 at [10]-[13]. But as the costs provisions in both acts are in similar terms it perhaps does not matter under which the order is made. The respondent has asked not only that a costs order be made in respect of an adjournment but also that the order be made against a third party, namely, the AIPA which has represented the applicant throughout. There is provision for the Court to do this under Part 2 r.21.07 of the Federal Magistrates Court Rules 2001 which provide for orders for costs being made against a lawyer. I have some doubt whether the AIPA could be construed as a…

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: [2010] FMCA 672
Decision Date: 3 September 2010

CaseChat Overview and Summary

The case of McKellar v Jetstar Airways Pty Ltd (No.3) involved an employment dispute between the Applicant, Mr. McKellar, and the Respondent, Jetstar Airways. Mr. McKellar sought compensation for redundancy and other entitlements following his dismissal from the Respondent. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the Respondent's decision to terminate Mr. McKellar's employment was lawful and, if so, what compensation he was entitled to receive. The court had to consider the terms of Mr. McKellar's employment contract, the applicable employment laws, and the specific circumstances of his dismissal.

The court determined that the Respondent's termination of Mr. McKellar's employment was lawful and that he was entitled to certain redundancy and other entitlements. The court assessed the compensation due to Mr. McKellar based on the terms of his employment contract and relevant legislative provisions. It also considered the interest on the balance payable by Mr. McKellar to the Respondent. The court ordered that Mr. McKellar pay the Respondent a specific sum and that the Respondent pay Mr. McKellar a different sum, with the latter set off against the former. Additionally, the court ordered Mr. McKellar to pay interest on the remaining balance and 80% of the Respondent's costs incurred due to an adjournment.

Orders

Orders of the court

The Applicant pay the Respondent the sum of $30,574.02.

The Respondent pay the Applicant the sum of $14,519.81, being the balance of the payment in lieu of 2 months’ notice.

The payment due under the order in paragraph 2 is set off against the payment due under the order in paragraph 1.

The Applicant pay the Respondent the sum of $2,096.19, being interest on the Balance payable by the Applicant to the Respondent ($16,054.31) under the order in paragraph 3.

The Applicant pay 80% of the Respondent’s costs thrown away by the adjournment on 22 March 2010, such costs, if not agreed, to be assessed pursuant to O 62 Federal Court Rules.

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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