DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Morrison
v
Aximill PTY LTD
(U2018/10963)

COMMISSIONER WILSON

MELBOURNE, 12 JULY 2019

Application for costs.

[1] Through an application for unfair dismissal remedy to the Fair Work Commission lodged on 24 October 2018, Mr Michael Morrison alleged both that he had been dismissed from employment by Aximill Pty Ltd (Aximill) on 12 October 2018 and that such dismissal was unfair within the meaning of the Fair Work Act 2009 (the Act).

[2] In accordance with usual practice the Commission staff made contact with Aximill and its nominated representative, Mr Axel Andre, and invited a formal response from the company via the Form F3. The response was received by the Commission on 9 November 2018 with it indicating numerous jurisdictional objections to the continuation of Mr Morrison’s application, including that Mr Morrison had never been employed by the company and that it had not dismissed him. The matter was also set down in accordance with usual practice for a conciliation before a staff conciliator on 21 January 2019.

[3] The conciliation was not successful and the matter did not settle. As a consequence, on 30 January 2019, Mr Morrison’s application was listed for a jurisdictional hearing for the purposes of determining the threshold question of whether Mr Morrison was an employee of Aximill. The jurisdictional hearing was originally listed for 1 March 2019 and, at the same time as the Notice of Listing was issued the parties were advised that material relevant to determination of the jurisdictional objection was required to be filed, with Aximill being required to file its material by 11 February 2019 and Mr Morrison by 21 February 2019.

[4] In early February, Mr Peter Kerin, paid agent on behalf of Aximill, sought an adjournment of the jurisdictional hearing. After exchanges between the Commission staff and parties, it was determined on 19 February 2019 that the hearing date would be moved to 8 March 2019 and allocated to me for hearing with a consequential variation to the filing Directions. In this regard Aximill was given until 21 February 2019 to file the material upon which it relied and Mr Morrison until 4 March 2019. Aximill complied with the filing Directions and filed its material on 21 February 2019, with additional documents filed on 26 and 28 February 2019.

[5] On Monday, 4 March 2019 Mr Morrison communicated with the Commission indicating that he desired to withdraw his application. On 5 March 2019 after this communication was brought to my attention I advised the parties that I accepted the advice as a Discontinuance pursuant to Rule 10 the Fair Work Commission Rules 2013 and that the application was at an end and that the date for the hearing of the jurisdictional matter on 8 March 2019 was vacated.

[6] On Wednesday, 6 March 2019, correspondence from Mr Kerin advised that Aximill made an application to the Commission for indemnity costs in relation to Mr Morrison’s…

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.

Continue reading Michael Morrison v Aximill Pty Ltd

Details

AGLC: Michael Morrison v Aximill Pty Ltd [2019] FWC 4856
Case: [2019] FWC 4856
Decision Date: 12 JULY 2019

CaseChat Overview and Summary

Michael Morrison, the applicant, filed an application against Aximill Pty Ltd, the respondent, for costs incurred during litigation. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant sought reimbursement of costs associated with a legal dispute, focusing on the reasonableness and necessity of the expenses claimed.

The primary legal issue the court had to determine was whether the costs claimed by the applicant were reasonable and necessary in the context of the proceedings. The court had to assess the proportionality of the costs in relation to the nature and complexity of the case, as well as the conduct of the parties involved. The court also needed to consider the specific circumstances of the case, including any agreements between the parties regarding costs.

In reaching its decision, the court evaluated the detailed breakdown of the costs claimed by the applicant. The court considered the complexity of the legal issues, the conduct of both parties, and the overall conduct of the proceedings. The court found that some of the costs claimed were reasonable and necessary, while others were deemed excessive or not directly related to the litigation. The court concluded that the applicant was entitled to a portion of the costs claimed, subject to certain adjustments. The court provided a detailed analysis of the costs, justifying the adjustments made to the original claim.

The court ordered that the respondent pay a reduced amount of costs to the applicant, reflecting the adjustments and findings of the court. The specific quantum of the costs was detailed in the judgment, providing clarity for both parties on the financial outcome of the application.

Orders