Mija Pty Ltd v Gravener - [2020] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIJA PTY LTD & ORS v GRAVENER

[2020] FCCA 681

Catchwords:
INDUSTRIAL LAW – Fair Work Act – costs – where a costs applications was made after the judgment was delivered – no costs awarded.

Legislation:

Fair Work Act 2009 (Cth), s.570

Cases cited:

Adamczak v Alsco Pty Ltd (No 4) [2019] FCCA 7

Imogen Pty Ltd v Sangwin (1996) 70 IR 254
Hutchinson v Comcare(No5) [2019] FCA 1665
MTGI Trust v Johnston (No.2) [2016] FCAFC 190

First Applicant:

MIJA PTY LTD

Second Applicant:

JANET HOGAN

Third Applicant:

MICHAEL HOGAN

Respondent:

JODIE GRAVENER

File Number:

BRG 551 of 2018

Judgment of:

Judge Middleton

Hearing date:

11 March 2020

Date of Last Submission:

11 March 2020

Delivered at:

Brisbane

Delivered on:

26 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Taylor

Solicitors for the Applicant:

Crosby Brosnan & Creen Lawyers

Counsel for the Respondent:

Ms Taylor

Solicitors for the Respondent:

Anderson Fredericks Turner

ORDERS

That the application for costs be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 551 of 2018

MIJA PTY LTD

First Applicant

And

JANET HOGAN

Second Applicant

And

MICHAEL HOGAN

Third Applicant

And

JODIE GRAVENER

Respondent

REASONS FOR JUDGMENT

Background

Over a period of four days between 25 March and 9 October 2019 I heard an application filed on 19 June 2018, filed by the applicant Ms Gravener seeking a finding of adverse action and or discrimination under the Fair Work Act 2009 (FWA).
On 13 January 2020 I dismissed that application.
This determination concerns the issue of costs.
The respondents, MIJA Pty Ltd, Michael Hogan and Janet Hogan seek costs in the sum of $57,666 pursuant to section 570 of the FWA on the basis that the applicant either instituted proceedings without reasonable cause, or alternatively that the applicant’s unreasonable acts or omissions caused the respondents to incur the costs of the proceedings or substantially all of them. (Paragraph 1 of the respondent’s written outline filed 10 March 2020).
For the reasons that follow I have dismissed the respondent’s application for costs.

Discussion

This jurisdiction is generally a no costs jurisdiction and the discretion to award costs arises under section 570 of the FWA.
Pursuant to section 570(2) costs may only be ordered if relevantly the court is satisfied that:
a)the party instituted the proceedings vexatiously without reasonable cause; or alternatively;
b)the parties unreasonable act or omission caused the other party to incur the costs.
The applicant and respondent have both appropriately referred to the decision of Trustee for the MTGI Trust v Johnston (No.2) [2016] FCAFC 190. In that decision the full court held that not only must the discretion to award costs “be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6].
Importantly when considering awarding…

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: [2020] FCCA 681
Decision Date: 26 March 2020

CaseChat Overview and Summary

Mija Pty Ltd (the applicant) sought costs against Gravener (the respondent) following a judgment delivered by Judge Middleton in the Federal Court of Australia. The underlying dispute concerned an application made by the applicant after the court had already delivered its judgment.

The central legal issue before the court was whether the applicant was entitled to an award of costs in relation to its costs application, which was made subsequent to the substantive judgment.

Judge Middleton considered the principles governing the award of costs in proceedings before the Federal Court, particularly in the context of applications made after a final judgment. The court determined that, in the circumstances presented, no order for costs should be made in favour of the applicant. The reasons for this decision were not elaborated upon in the provided text, but the outcome was a refusal to award costs on the post-judgment application.

Orders