Rangi v K-Mart Australia Ltd (No.2) - [2018] FCCA 3622

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANGI v K-MART AUSTRALIA LTD (No.2)

[2018] FCCA 3622

Catchwords:
INDUSTRIAL LAW – Costs – where substantive application was summarily dismissed – where proceedings were instituted without reasonable cause – where the Applicant engaged in an unreasonable omission in failing to discontinue the proceedings despite invitation from the Respondent to do so – costs ordered.

Legislation:

Fair Work Act 2009 (Cth), ss.544, 570

Federal Circuit Court Rules 2001 (Cth), r.21.10, Sch.1

Limitation of Actions Act 1958 (Vic), s.5

Cases cited:

Henderson v City of Adelaide (No.2) [2012] FCA 9
Rangi v Kmart Australia Ltd [2018] FCCA 2040

Applicant:

YUDHVIR RANGI

Respondent:

K-MART AUSTRALIA LTD

File number:

MLG 345 of 2017

Judgment of:

Judge Hartnett

First judgment:

26 July 2018

Submissions as to costs last filed:

27 August 2018

Delivered at:

Melbourne

Costs Judgment delivered on:

7 December 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr McKenney

Solicitor for the Respondent:

Ms De Marchi, in-house lawyer for Kmart Australia Ltd

ORDERS

The Applicant pay the costs of the Respondent fixed in the sum of $13,192.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 345 of 2017

YUDHVIR RANGI

Applicant

And

K-MART AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

On 22 February 2017, the Applicant made an application in the Fair Work Division of the Court wherein the Applicant alleged contravention, by the Respondent, of a general protection under the Fair Work Act 2009 (Cth) (‘the Act’). The procedural background of the matter is as otherwise described in paragraphs 1 to 8 of Rangi v Kmart Australia Ltd [2018] FCCA 2040 (‘the judgment’).
On 16 August 2017 the Respondent filed an application in a case seeking the following orders:-
“1. Pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 and/or rule 13.10 of the Federal Circuit Court Rules 2001 summary judgment be given for the Respondent by way of dismissal of the Applicant's Applications dated 19 February 2017 and his Amended Points of Claim (undated) and filed on 18 May 2017 on the grounds that the Applicant prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim and/or the proceeding or claim for relief is an abuse of the process of the Court (see Response and Defence both dated 22 June 2017 filed by the Respondent).
2. Declarations be made by the Federal Circuit Court of Australia pursuant to s.16 of the Federal Circuit Court of Australia Act 1999 in accordance with 1 above.
3. The Applicant pay the costs of and incidental to the Respondent’s Application in a Case pursuant to s.570 of the Fair Work Act 2009 and in relation to the proceeding generally on the following alternative bases:
(a) The Applicant instituted the Proceeding MLG 345/2017 without reasonable cause; and/or
(b) The Applicant engaged in an unreasonable act by instituting the Proceeding MLG 345/2017; and/or
(c) The Applicant unreasonably omitted to discontinue the Proceeding MLG 345/2017 after the Respondent drew to…

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: [2018] FCCA 3622
Decision Date: 7 December 2018

CaseChat Overview and Summary

In *Rangi v K-Mart Australia Ltd (No.2)*, the applicant, Rangi, brought proceedings against the respondent, K-Mart Australia Ltd. The substantive application brought by Rangi was summarily dismissed by the court.

The central legal issue before the court was whether costs should be awarded to the respondent. This question arose due to the court's finding that the proceedings had been instituted without reasonable cause and that the applicant had unreasonably omitted to discontinue the proceedings despite an invitation from the respondent to do so.

The court reasoned that the applicant's conduct in persisting with proceedings that lacked reasonable cause, particularly after being invited to discontinue them, warranted an order for costs in favour of the respondent. The legal principle applied was that a party who institutes and maintains proceedings without a reasonable basis, and who fails to act reasonably in discontinuing them when given the opportunity, may be liable for the costs incurred by the other party.

Consequently, the court ordered that the applicant pay the respondent's costs.

Orders