FEDERAL COURT OF AUSTRALIA
Morris v McConaghy Australia Pty Ltd [2018] FCA 2099
Appeal from: Application for extension of time and leave to appeal: Morris v McConaghy Australia Pty Ltd (No 2) [2017] FCCA 2243
Application for leave to appeal: Morris v McConaghy Australia Pty Ltd (No 3) [2018] FCCA 3052
File number: NSD 1684 of 2018 Judge: PERRAM J Date of judgment: 21 December 2018 Catchwords: COSTS – appeal from Federal Circuit Court – whether Court erred in ordering costs pursuant to Fair Work Act 2009 (Cth) s 570 – whether proceedings instituted vexatiously – whether costs incurred by unreasonable act – where Appellant discontinued proceedings Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit Court of Australia Act 1999 (Cth) s 15
Federal Circuit Court Rules 2001 (Cth) r 1.05
Federal Court Rules 2011 (Cth) r 7.34
Date of hearing: 18 December 2018 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: E G H Cox SC with O Fagir Solicitor for the Appellant: Aus Ship Lawyers Counsel for the Respondent: C E Bannan Solicitor for the Respondent: Lander & Rogers Lawyers ORDERS
NSD 1684 of 2018 BETWEEN: JONATHAN MORRIS
Appellant
AND: MCCONAGHY AUSTRALIA PTY LTD ACN 168 218 380
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 DECEMBER 2018
THE COURT ORDERS THAT:
1.To the extent necessary, the Appellant be granted an extension of time in which to apply for leave to appeal and be granted leave to appeal from the orders made by the Federal Circuit Court on 28 June 2017 and 16 August 2018.
2.Appeal allowed.
3.Set aside order 1 made by the Federal Circuit Court on 28 June 2017.
4.Set aside all of the orders made by the Federal Circuit Court on 16 August 2018.
5.Set aside Bankruptcy Notice No. BN 228762.
6.The Respondent is to pay the Appellant’s costs of the application to set aside the bankruptcy notice as taxed or agreed.
7.The Appellant pay the Respondent’s costs of preparing its bill of costs in proceeding SYG 1137 of 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
On 14 September 2017 the Federal Circuit Court ordered the Appellant to ‘pay the Respondent’s legal costs and disbursements incurred in these proceedings on and from 28 June 2017 as well as reserved costs in an amount to be agreed or taxed under s 570 of the Fair Work Act 2009 (Cth)’. The Appellant’s claim before the Federal Circuit Court was a claim for unpaid wages under the Fair Work Act 2009 (Cth). Section 570(2) of that Act prohibits the making of a costs order in a proceeding of that kind unless, relevantly, the Court is satisfied that the party against whom the order is to be made instituted the proceeding vexatiously or without reasonable cause (s 570(2)(a)) or the Court is satisfied that…
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- Case
- [2018] FCA 2099
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Federal Circuit Court was correct in finding that the proceedings were instituted vexatiously and whether the costs incurred by the unreasonable act were appropriately ordered under section 570 of the Fair Work Act. Additionally, the court had to determine if the bankruptcy notice was correctly issued.
The court found that the Federal Circuit Court erred in its assessment of the vexatious nature of the proceedings. The appellate court held that the original determination was not supported by the evidence and that the costs ordered were not justified under the Fair Work Act. Consequently, the orders made by the Federal Circuit Court on 28 June 2017 and 16 August 2018 were set aside, and the bankruptcy notice was also annulled. The court ordered that McConaghy Australia pay Morris's costs of the application to set aside the bankruptcy notice, while Morris was required to cover McConaghy Australia's costs of preparing its bill of costs in proceeding SYG 1137 of 2017.
Orders
Orders of the court
1. To the extent necessary, the Appellant be granted an extension of time in which to apply for leave to appeal and be granted leave to appeal from the orders made by the Federal Circuit Court on 28 June 2017 and 16 August 2018.
2. Appeal allowed.
3. Set aside order 1 made by the Federal Circuit Court on 28 June 2017.
4. Set aside all of the orders made by the Federal Circuit Court on 16 August 2018.
5. Set aside Bankruptcy Notice No. BN 228762.
6. The Respondent is to pay the Appellant’s costs of the application to set aside the bankruptcy notice as taxed or agreed.
7. The Appellant pay the Respondent’s costs of preparing its bill of costs in proceeding SYG 1137 of 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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