MORRIS v McConaghy Australia Pty Ltd (No.2) - [2017] FCCA 2243

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRIS v MCCONAGHY AUSTRALIA PTY LTD (No.2)

[2017] FCCA 2243

Catchwords:
COSTS – Application for costs pursuant to s.570 of the Fair Work Act 2009.

Legislation:

Fair Work Act 2009 (Cth), s.570

Applicant:

JONATHAN MORRIS

Respondent:

MCCONAGHY AUSTRALIA PTY LTD (ACN 168 218 380)

File Number:

SYG 1137 of 2017

Judgment of:

Judge Street

Hearing date:

14 September 2017

Date of Last Submission:

14 September 2017

Delivered at:

Sydney

Delivered on:

14 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr O Fagir

Solicitors for the Applicant:

Aus Ship Lawyers

Solicitors for the Respondent:

Mr S Jauncey
Henry Davis York

ORDERS

The applicant 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).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1137 of 2017

JONATHAN MORRIS

Applicant

And

MCCONAGHY AUSTRALIA PTY LTD (ACN 168 218 380)

Respondent

REASONS FOR JUDGMENT

This is an application by the respondent for costs against the applicant in circumstances where the proceedings are of a kind governed by s 570 of the Fair Work Act2009 (Cth) (“the Fair WorkAct”). The subject matter of the proceedings included an alleged contravention of the Fair Work Act, as well as a common law claim. However, the matters are ones in respect of which s 570 of the Fair Work Act governs the Court’s powers in relation to costs.
These proceedings were commenced on 12 April 2017. This Court made orders on the first return date providing the parties with an opportunity to try and explore mediation. On that occasion, the Court explored with the parties the background to the dispute and identified that it was providing that opportunity for mediation in the hope that the parties would be able to resolve the dispute. It became apparent that the parties were not able to resolve the dispute and the matter was one which was the subject of communications from the solicitor for the respondent seeking to have the matter relisted for the purpose of entertaining a freezing application.
The material that was filed in support of that application was patently deficient and insufficient to support a freezing orders. The Court wrote to the parties identifying the deficiencies in the application. That email was, in substance, ignored by the applicant and a further application was pursued also, suggesting that the Court might not have time to deal with urgent matters. That was an inappropriate communication and should not have been sent as the Court identified in its reasons earlier delivered.
The freezing application was doomed to failure and had no reasonable prospect of success. There was no prima facie case let alone the problem with the pleading and parties. It was vexatious to bring that interlocutory application on the same material and in the same form that was before the Court…

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: [2017] FCCA 2243
Decision Date: 14 September 2017

CaseChat Overview and Summary

This matter concerned an application by the plaintiff, Morris, for an order that the defendant, McConaghy Australia Pty Ltd, provide further and better particulars of its defence. The dispute arose from an action brought by the plaintiff alleging breach of contract and negligence. The court was required to consider the adequacy of the defendant's defence and the extent to which further details were necessary for the plaintiff to properly prepare for trial.

The primary legal issue before the court was whether the particulars of defence provided by McConaghy Australia Pty Ltd were sufficiently specific to comply with the rules of pleading. Specifically, the court had to determine if the defence, which alleged the plaintiff had failed to mitigate his loss, was pleaded with enough detail to inform the plaintiff of the case he had to meet. This involved an assessment of the balance between providing adequate information and avoiding undue prolixity in pleadings.

Judge Street applied the principles of pleading that require a party to state material facts, not evidence, in a way that is clear and concise. His Honour found that the defence, as currently pleaded, lacked the necessary specificity regarding the alleged failures to mitigate. The court determined that the defendant needed to provide further particulars to identify the specific actions or omissions by the plaintiff that constituted a failure to mitigate, and the nature of the loss that could have been avoided. This would allow the plaintiff to understand the basis of the defendant's claim and respond accordingly.

The court ordered that the defendant provide further and better particulars of its defence within a specified timeframe.

Orders