MCKELLAR v Jetstar Airways Pty Ltd (No.3)
[2010] FMCA 672
•3 September 2010
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 Federal Magistrates Court Rules 2001 |
| 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 lawyer in respect of this case. Counsel was instructed by its industrial advisor who does not claim to be a lawyer. I am also concerned that the provisions of r.21.07 are limited to occasions when costs are thrown away because of undue delay, negligence, improper conduct or other misconduct or default. I would be reluctant to make such a finding in this case. I was satisfied that an adjournment was necessary when the applicant sought a further amendment to his statement of claim to plead that the respondent failed to pay him two months’ notice on his termination in breach of the provisions of the Jetstar Airways Pilots Agreement 2008. This breach would entitle the Court to make orders in favour of the applicant under s.719(6) of the WRA and to impose a penalty on the respondents. The amendment was an important one because it succeeded. When it was requested, I made it clear that the applicant would have to pay the costs thrown away as a result of the adjournment. However, it was also clear at that time that the original estimate of the length of the case was substantially inaccurate. The proceedings would have had to have been adjourned in any event. This raises the question as to what are the true “costs thrown away”.
I believe that I am relieved from making the difficult decision as to whether to make a personal costs order against the applicant’s lawyers under r.21.07 by the indication in the applicant’s written submissions that any costs order would be met by the AIPA and not personally by the applicant. A costs order against lawyers is not only an expense of those lawyers, it is also an embarrassment. Whilst I think that the failure to make this claim at an earlier stage was unfortunate, the conduct of the applicant’s case by his counsel was otherwise exemplary and I see no benefit in gratuitously making the order when I can accept the undertaking that the costs will be paid by the Union.
The respondent argues that the costs thrown away can be defined under five heads;
(1) counsel’s fees for 22 March 2010;
(2) costs of an instructing solicitor for 22 March 2010;
(3) the costs of having witnesses on standby on 22 and 23 March 2010;
(4) costs associated with defending paragraphs 22A and 22B of the second further amended statement of claim;
(5)any other costs incurred by the respondents and thrown away by reason of the adjournment on 22 March 2010.
The case commenced on 22 March 2010 but a full day of hearing was not obtained. Any fees payable in respect of 23 March would have been thrown away. The applicant argues that the witnesses referred to in (3) were the respondent’s own staff who would not be paid a standby fee. I cannot see that the respondent’s costs of defending paragraphs 22A and 22B of the second further amended statement of claim could be considered to be costs thrown away. They are the costs of an additional defence which, in this case, proved unsuccessful. The applicant argues that paragraph 5 constitutes and ambit claim which should be rejected.
Federal Magistrates are not taxing masters. There is a special skill in making assessments as to costs which includes determining what costs were “thrown away” by the requirement for an adjournment. In my view, the matter should be referred for taxation and a determination by the taxing officer. The taxing officer may perhaps take into account the preliminary views which I have expressed in these reasons but his discretion should remain unfettered. I will order that the costs be assessed pursuant to O 62 of the Federal Court Rules and paid as to 80% of the assessment. The orders that I make will be found on the first page of these reasons.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 3 September 2010
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