Payne v Secure Melbourne Protective Services Pty Ltd (No 2) - [2023] FCA 1579

FEDERAL COURT OF AUSTRALIA
Payne v Secure Melbourne Protective Services Pty Ltd (No 2) [2023] FCA 1579

File number: VID 746 of 2020

Judgment of: SNADEN J

Date of judgment: 14 December 2023

Catchwords: COSTS – statutory prohibition against award – whether costs incurred in consequence of unreasonable conduct – respondent withdrew from defence of matter following unsuccessful mediation – whether failure to attend to proper defence of matter was unreasonable – whether costs incurred by the successful applicant were incurred because of that conduct – application dismissed.

Legislation: Fair Work Act 2009 (Cth) s 570

Cases cited: Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 13

Date of last submission: 15 November 2023 (applicant)

Date of hearing: Determined on the papers

Counsel for the Applicant: Mr D Kelsey-Sugg

Solicitor for the Applicant: Ellis Palmos & Co Lawyers

Counsel for the Respondent: The Respondent did not file submissions

ORDERS

VID 746 of 2020

BETWEEN:
TERRENCE ANDREW PAYNE

Applicant

AND:
SECURE MELBOURNE PROTECTIVE SERVICES PTY LTD

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:
1.There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SNADEN J:

On 1 November 2023, the court granted the applicant relief on an application for compensation related to breaches by the respondent of an award made under the Fair Work Act 2009 (Cth) (the “FW Act”): Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311 (“Payne”; Snaden J). Having foreshadowed that he might want to do so, Mr Payne was given a period of 14 days to press any application that he wished to make for costs. He accepted that invitation on 15 November 2023, filing short written submissions as to why an order for costs ought to be made in his favour. A corresponding invitation that was extended to the respondent to indicate (if it wished to) why costs ought not to be granted went unanswered.
The following reasons are directed to that discrete (costs) question. They assume some familiarity with the reasons given for the court’s substantive judgment.
Section 570 of the FW Act relevantly provides as follows:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2)…
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
…
(b) the court is satisfied that the party’s unreasonable act…

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: [2023] FCA 1579
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of Payne v Secure Melbourne Protective Services Pty Ltd (No 2) involved the plaintiff seeking costs from the defendant, Secure Melbourne Protective Services Pty Ltd, under a statutory provision that generally prohibits awards of costs. The dispute arose from an unsuccessful mediation which led the defendant to withdraw from defending the matter. The Federal Court was tasked with determining whether the costs incurred by the plaintiff were a consequence of the defendant's unreasonable conduct, specifically their decision to withdraw from the defence.

The court considered whether the defendant's withdrawal from defending the matter following the mediation was unreasonable and whether this conduct led to the plaintiff incurring costs. The court examined the circumstances surrounding the mediation and the defendant's decision to withdraw from the defence. The analysis included whether the defendant's failure to properly defend the matter was a direct cause of the costs incurred by the plaintiff.

In its reasoning, the court found that the defendant's decision to withdraw from the defence was not unreasonable in the circumstances, and thus, the costs incurred by the plaintiff were not a consequence of this conduct. Consequently, the application for costs was dismissed. The court's decision was grounded in the specific circumstances of the case, including the outcome of the mediation and the defendant's subsequent actions. Ultimately, the court concluded that no order should be made as to costs, in accordance with the statutory provision.

Orders

Orders of the court

1. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 746 of 2020
Judgment of:	SNADEN J
Date of judgment:	14 December 2023
Catchwords:	COSTS – statutory prohibition against award – whether costs incurred in consequence of unreasonable conduct – respondent withdrew from defence of matter following unsuccessful mediation – whether failure to attend to proper defence of matter was unreasonable – whether costs incurred by the successful applicant were incurred because of that conduct – application dismissed.
Legislation:	Fair Work Act 2009 (Cth) s 570
Cases cited:	Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	13
Date of last submission:	15 November 2023 (applicant)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr D Kelsey-Sugg
Solicitor for the Applicant:	Ellis Palmos & Co Lawyers
Counsel for the Respondent:	The Respondent did not file submissions

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	14 DECEMBER 2023