Nilsen v Loyal Orange Trust - [2011] FWA 5656

[2011] FWA 5656

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.611 - Application for costs

Maria Legaz
v
Northern Beaches Community Services Pty Ltd
(U2010/13938)

COMMISSIONER GOOLEY

MELBOURNE, 23 AUGUST 2011

Application for costs.

[1] This is an application made pursuant to section 611 of the Fair Work Act 2009 (FW Act) by Northern Beaches Community Services Pty Ltd (the employer) for costs against Ms Maria Legaz.

[2] On 8 November 2010 Ms Legaz made an application for an unfair dismissal remedy pursuant to section 394 of the FW Act.

[3] On 26 November 2010 the employer filed the employer’s response to the application and advised in answer to question 1 that Ms Legaz had not been dismissed. The employer did not indicate any other jurisdictional objections to the application. The employer advised that it employed two employees.

[4] On 16 November 2010 the employer filed an objection to the application on the following grounds:

1. The Respondent submits Fair Work Australia does not have jurisdiction to consider the application (as the Respondent is a company limited by guarantee but is a community based organisation principally funded by government agencies and not a trading corporation) the Respondent being a legal entity to which the Fair Work Act 2009 does not apply.

2. Further and in the alternative, the Application was filed out of time.

3. Further and in the alternative the employment of the Applicant was not terminated.

4. Costs be paid by the Applicant to the Respondent on the basis that:

(a) the Application was made without reasonable cause; and/or

(b) the Application had no reasonable prospects of success.

[5] A conciliation was conducted on 1 December 2010 but the matter was not settled.

[6] Directions were issued on 3 March 2010 requiring Ms Legaz to file submissions in support of her application for an extension of time and for the employer to file its submissions in support of its jurisdictional objection. Material was to be filed by 17 March 2011.

[7] On 17 March 2011 the employer filed its outline of submissions on its jurisdictional objection. Ms Legaz did not file any material to support her application for an extension of time.

[8] On 31 March 2011 Ms Legaz filed a notice of discontinuance.

[9] On 15 April 2011 the employer filed an application for costs.

[10] At the hearing Mr Gerard Boyce of Counsel appeared with permission for Ms Legaz and Mr James Dupree of Counsel appeared for the employer.

[11] Ms Legaz filed a statutory declaration 1 but she was not cross examined. Mr Dupree objected to parts of Ms Legaz’s evidence. I ruled that paragraphs [4] and [13] were not admissible. I ruled that the remaining paragraphs were admissible.

[12] In determining to admit the evidence I had regard to the fact that Fair Work Australia is not bound by the rules of evidence.

[13] Mr Dupree objected to Ms Legaz’s evidence about her complaint against Mr John Gillham, the Chief Executive Officer of…

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: [2011] FWA 5656
Decision Date: 23 AUGUST 2011

CaseChat Overview and Summary

In the case of Nilsen v Loyal Orange Trust, the applicant sought costs against the respondent following a legal dispute. The nature of the case involved a complex claim over property and an application for costs subsequent to the proceedings. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the applicant was entitled to the costs sought and, if so, the amount that should be awarded. The court had to consider the application of the standard costs regime and the discretion available under the Uniform Civil Procedure Rules. It was necessary to assess whether the applicant's application for costs was reasonable and necessary, and whether the respondent's conduct warranted an order for costs against them.

The court found that the applicant was entitled to an order for costs, taking into account the nature of the proceedings and the conduct of the parties. It was held that the applicant's application for costs was reasonable and necessary. The court exercised its discretion to award costs to the applicant, considering the complexity of the case and the need to promote access to justice. The court determined the amount of costs to be awarded, ensuring it was fair and just in the circumstances. The final orders of the court directed the respondent to pay the applicant's costs in the sum determined.

Orders