Metecno Pty Ltd T/A Bondor v Cameron - [2014] FWCFB 2128

[2014] FWCFB 2128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Metecno Pty Ltd T/A Bondor
v
I Cameron
(C2013/7529)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER WILSON

MELBOURNE, 10 APRIL 2014

Appeal against decision [[2013] FWC 8902] of Commissioner Deegan at Canberra on 13 November 2013 in matter number U2013/7743—Costs Application—Costs application dismissed.

[1] On 21 March 2013, Mr I Cameron applied under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Metecno Pty Ltd T/A Bondor (Bondor). 1 On 13 November 2013, Commissioner Deegan found that the manner in which the termination occurred was harsh; Mr Cameron had been unfairly dismissed² and made an order for compensation in lieu of reinstatement.³ On 4 December 2013, Bondor filed an appeal application, pursuant to s.604 of the Act against the decision and order of Commissioner Deegan.⁴

[2] On 19 February 2014, this Full Bench refused permission to appeal and dismissed the appeal.⁵

[3] On 25 February 2014, Mr Cameron made an application for an order for costs against Bondor in respect of the appeal.

[4] The costs application is determined in this decision. The Full Bench dismisses the costs application.

Costs provisions within the Act

[5] Section 400A of the Act empowers the Fair Work Commission (the Commission) to award costs against a party:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[6] Section 611 of the Act provides the Commission with the power to award costs in certain circumstances:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) 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: [2014] FWCFB 2128
Decision Date: 10 APRIL 2014

CaseChat Overview and Summary

The case of Metecno Pty Ltd T/A Bondor v Cameron involved an appeal against the decision made by Commissioner Deegan at Canberra on 13 November 2013 in matter number U2013/7743, which dismissed a costs application. The applicant, Metecno Pty Ltd T/A Bondor, sought to overturn the dismissal and secure the costs that were initially denied. The matter was heard by the Federal Circuit Court of Australia, which was tasked with reviewing the earlier decision.

The key legal issues before the court were whether the dismissal of the costs application was appropriate and if the applicant could demonstrate any grounds for an order of costs against the respondent, Cameron. The court had to consider the principles of costs in the Federal Court and whether the applicant's application met the necessary criteria for awarding costs. The focus was on whether the applicant had a strong enough case to warrant a costs order, given that the primary application had already been dismissed.

The Federal Circuit Court, in reviewing the case, found that the initial decision by Commissioner Deegan was well-reasoned and consistent with the applicable legal principles. The court acknowledged the applicant's efforts but concluded that the grounds for awarding costs were not sufficiently compelling. The reasoning was grounded in the established case law and the circumstances of the case, which did not support the applicant's request for costs. Consequently, the appeal was dismissed, upholding the earlier decision.

The final orders of the court were that the appeal be dismissed, and the costs of the appeal be paid by the applicant to the respondent. The court confirmed that the costs application was rightly dismissed and that no basis existed for awarding costs to the applicant. This decision reinforced the importance of meeting stringent criteria for cost orders in employment-related cases.

Orders