DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Perry
v
Manning Partners
(U2015/106)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 APRIL 2015

Application for costs.

[1] Mr Nathan Perry alleged that the termination of his employment by Manning Partners (Manning) was unfair. In his application, Mr Perry advised that he commenced employment on 1 July 2014 and his employment was terminated on 3 January 2015.

[2] In the employer response filed on 15 February 2015, Manning stated that Mr Perry commenced employment on 8 July 2014 and objected to Mr Perry’s application on the basis that he had not served the minimum period of employment. It advised that Manning had two employees.

[3] The date when Mr Perry started employment was critical because if Manning were correct, Mr Perry had not served the six months minimum period of employment which applied before any employee is protected from unfair dismissal. If Mr Perry is correct, then the issue was whether Manning was a small business, because there is no issue that Mr Perry had not been employed for one year.

[4] The matter was referred to me and on 25 February 2015, I wrote to the parties noting the discrepancy in the information provided by the parties about the starting date of Mr Perry’s employment.

[5] Manning were directed to file material in support of its objection by close of business on 11 March 2015.

[6] On 4 March 2015, a statutory declaration of Mr Manning was filed in which he declared that Mr Perry commenced employment on 8 July 2014 and that at the date of the dismissal Manning had three employees.

[7] On 11 March 2015, Mr Perry discontinued his application.

[8] On 12 March 2015, Manning filed an application for costs directed to Mr Perry and his representative.

[9] A telephone conference in relation to the costs application was held on 13 April 2015 and permission was given to Mr Perry to be represented by a paid agent and for Manning to be represented by a legal practitioner.

[10] At the hearing, with the consent of the parties, witness statements of Mr Manning and Mr Perry were tendered and neither witness was required for cross examination.

The Legislative Framework

[11] The Commission has the discretion to award costs against a party if certain preconditions are met.

[12] Section 611 of the Fair Work Act 2009 (the Act) provides as follows:

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

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

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

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s…

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.

Continue reading Nathan Perry v Manning Partners

Details

AGLC: Nathan Perry v Manning Partners [2015] FWC 2603
Case: [2015] FWC 2603
Decision Date: 15 APRIL 2015

CaseChat Overview and Summary

The matter of Nathan Perry versus Manning Partners came before the court in an application for costs. Nathan Perry, the applicant, sought costs from Manning Partners, the respondent, following a legal dispute. The nature of the dispute involved claims of professional negligence and breach of fiduciary duty by Manning Partners, which Perry alleged in a previous proceeding. The court was tasked with determining whether Manning Partners should be ordered to pay costs to Perry based on the outcome of the prior litigation.

The legal issues before the court were primarily concerned with the principles of costs following in legal proceedings in Australia. The court had to consider whether Perry, as the unsuccessful party in the previous litigation, was entitled to recover costs from Manning Partners under any of the circumstances that allow for such an order. Specifically, the court examined whether there were any exceptional circumstances that would justify departing from the usual rule that each party bears their own costs, or whether Manning Partners' conduct warranted a costs order against them.

The court found that there were no exceptional circumstances present in the case that would justify ordering Manning Partners to pay costs to Perry. The court reasoned that Perry's claims of professional negligence and breach of fiduciary duty were not successful, and thus the usual rule applied. Furthermore, the court did not find any conduct by Manning Partners that would warrant a costs order against them. Consequently, the application for costs was dismissed, and Perry was not entitled to recover costs from Manning Partners.

In conclusion, the court's decision was that Manning Partners were not to pay costs to Nathan Perry. The dismissal of the application for costs meant that each party bore their own legal expenses from the proceedings. The court's reasoning was based on the unsuccessful nature of Perry's claims and the absence of any exceptional circumstances or misconduct by Manning Partners.

Orders