Mr Jeff Dickason v Endeavour Industries Pty Ltd - [2012] FWA 4687

[2012] FWA 4687

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.611 - Application for costs

Mr Jeff Dickason
v
Endeavour Industries Pty Ltd; Taylor Wooding (receivers and managers appointed) T/A Endeavour Industries Pty Ltd
Scott Irons
Jeff Irons
Ross Blakeley
Andrew Schwarz
Kieran Linton
(C2012/2432)

COMMISSIONER LEWIN

MELBOURNE, 12 JUNE 2012

Costs s.611- general protections - s.365 - conference - response - course of conduct in proceedings - vexatious - without reasonable cause - discretion

[1] This matter is an application for costs made under s.611 of the Fair Work Act 2009 (the Act). The application is made by Mr James Dickason in relation to proceedings brought by him under s.365 of the Act against Endeavour Industries Pty Ltd for whom he had been employed.

[2] In those proceedings Mr Dickason alleged that his employment was terminated by his employer contrary to the general protections provisions of the Act, as set out in Chapter 3, Part 3-1 thereof. Mr Dickason applies for an order against Taylor Wooding (receivers and managers appointed) T/A Endeavour Industries Pty Ltd and several natural persons presumably associated with Endeavour Industries Pty Ltd, on the ground that the respondents responded to the application vexatiously.

[3] The provisions of s.611 are set out below:

“611 Costs

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

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

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

(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

[4] In order to deal with the grounds upon which the application for costs is made it is necessary to set out a chronology of the proceedings conducted in relation to Mr Dickason’s application under s.365.

[5] The application was lodged in the Tribunal on 30 January 2012. The matter was listed for conference on 20 February 2012. Endeavour Industries Pty Ltd did not attend the conference. The reason for the non-attendance of Endeavour Industries Pty Ltd is referred to in submissions below made on behalf of the respondents and is not contested. Following the attempt at a conference pursuant to s.368 of the Act to deal with the application the Tribunal was advised that Taylor Woodings had been appointed receivers and managers of Endeavour Industries Pty Ltd.

[6] Subsequently, the matter was listed for conference on 2 March 2012. The receivers and managers…

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: [2012] FWA 4687
Decision Date: 12 JUNE 2012

CaseChat Overview and Summary

In the case of Mr Jeff Dickason against Endeavour Industries Pty Ltd, the Federal Circuit Court was tasked with determining an application for costs under the Fair Work Act 2009. Mr Dickason brought a general protections claim against his former employer, alleging unfair dismissal and other breaches of employment rights. The employer sought costs on the basis that Mr Dickason's conduct throughout the proceedings was vexatious, without reasonable cause, and in the alternative, that the proceedings amounted to an abuse of process. The court was required to assess whether the applicant's conduct warranted the imposition of costs under section 611 of the Act.

The court examined the nature and extent of the respondent's conduct in the proceedings to determine if it was vexatious, without reasonable cause, or an abuse of process. It considered various factors including the respondent's persistence in pursuing the proceedings despite evident weaknesses in his case, the respondent's conduct during conferences and negotiations, and the overall reasonableness of the respondent's actions. The court noted that a party's right to access the court is not absolute and can be subject to restrictions if the proceedings are pursued vexatiously.

The court found that Mr Dickason's conduct throughout the proceedings was indeed vexatious and without reasonable cause. It held that his continued pursuit of the case, despite clear indications that it lacked merit and the absence of any reasonable grounds for his claims, warranted the imposition of costs. The court further found that the proceedings amounted to an abuse of process, as they were used as a means to harass the employer and cause unnecessary expense and delay. Consequently, the court exercised its discretion under section 611 of the Act and ordered Mr Dickason to pay Endeavour Industries Pty Ltd's costs of the application, as well as the costs of the original proceedings.

Orders