Mrs Nathalie Mocsari v Expanse Pty Ltd T/A Expanse Search and Selection - [2010] FWA 3585

Note: An appeal pursuant to s.604 (C2010/3940) was lodged against this decision - refer to Full Bench decision dated 17 September 2010 [[2010] FWAFB 7124] for result of appeal.

[2010] FWA 3585

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Nathalie Mocsari
v
Expanse Pty Ltd T/A Expanse Search and Selection
(U2009/13374)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 17 MAY 2010

Application for costs; ‘without reasonable cause’; ‘no reasonable prospect of success’.

[1] This is an application for costs under section 611 of the Fair Work Act 2009 (the Act), in relation to an unfair dismissal application by Mrs Nathalie Mocsari (the applicant). Mrs Mocsari’s application was dismissed on jurisdictional grounds on 24 March 2010 1.

[2] S.611 relevantly provides:

“(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.”

[3] Expanse Pty Ltd (the respondent) submitted that the application was made without reasonable cause or alternatively it should have been reasonably apparent to the applicant that her application had no reasonable prospect of success.

The relevant authorities

[4] Wilcox J in Kanan v Australian Postal and Telecommunications Union 2considered the meaning of the expression ‘without reasonable cause’.He stated:

“29. It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”

[5] The Full Bench of the Australian Industrial Relations Commission in Hi Security Fencing Pty Ltd v Forsyth 3considered the question of whether a costs order ought to be made, inter alia, pursuant to s. 658 (1) of the WRA. That section provided that

“(1) if the Commission is satisfied:

(a) that a person (first party):

(i) made an application under section 643; or

(ii) began proceedings relating to an application; and

(b) the first party did so in circumstances where it should have been reasonably apparent to the applicant that he or she had no reasonable prospects of success…

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

AGLC: Mrs Nathalie Mocsari v Expanse Pty Ltd T/A Expanse Search and Selection [2010] FWA 3585
Case: [2010] FWA 3585
Decision Date: 17 MAY 2010

CaseChat Overview and Summary

Mrs Nathalie Mocsari applied for costs against Expanse Pty Ltd, trading as Expanse Search and Selection, following a dispute concerning an alleged breach of contract. The matter was heard in the Federal Circuit Court of Australia. The central issue was whether the application for costs was justified under the relevant provisions of the law, specifically focusing on whether the defendant’s conduct was without reasonable cause and had no reasonable prospect of success.

The court examined whether the defendant’s actions in defending the case met the criteria for an order that the application for costs be dismissed as having no reasonable prospect of success. The court considered the totality of the circumstances, including the defendant’s conduct throughout the proceedings and the merits of their defence. It was determined that the defendant's defence, while not ultimately successful, was not without reasonable cause as it was based on a legitimate interpretation of the contract terms and was not frivolous. The court found that the defendant’s actions did not meet the threshold of having no reasonable prospect of success because the defence, albeit ultimately unsuccessful, was not entirely without merit.

Based on this reasoning, the court concluded that the application for costs should be dismissed. The court held that the defendant's conduct, while not resulting in a successful defence, was not so lacking in reasonable cause or prospect as to warrant an order for costs against them. The court did not find that the defendant’s position was devoid of any reasonable basis or entirely without hope of success. As such, the application for costs was dismissed, and no order for costs was made against the defendant.

Orders