Rossetti v Aus Gold Mining Group Pty Limited - [2018] FCA 1649

FEDERAL COURT OF AUSTRALIA
Rossetti v Aus Gold Mining Group Pty Limited [2018] FCA 1649

File number(s): NSD 71 of 2018

Judge(s): BURLEY J

Date of judgment: 18 October 2018

Catchwords: COSTS – payment of costs for failing to attend mediation

Legislation:
Fair Work Act 2009 (Cth) ss 90, 323, 570

Federal Court of Australia Act 1976 (Cth) s 43

Workplace Relations Act 1996 (Cth) s 824

Cases cited:
El Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474

In the Matter of Staway Pty Limited (In Liquidation) (Receivers Appointed) [2017] NSWSC 485

Ryan v Primesafe [2015] FCA 8

Stanley v Service to Youth Council Incorporated (No. 3) [2014] FCA 716

Date of hearing: 18 October 2018

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: Mr N D Read

Solicitor for the Applicant: Holman Webb Lawyers

Counsel for the Respondents: Mr J C Lee

Solicitor for the Respondents: SHL & Associates Lawyers

ORDERS

NSD 71 of 2018

BETWEEN:
LEE ROSSETTI

Applicant

AND:
AUS GOLD MINING GROUP PTY LIMITED

First Respondent

SHA ZOU

Second Respondent

JUDGE:

BURLEY J

DATE OF ORDER:

18 OCTOBER 2018

THE COURT ORDERS THAT:
1.The respondents pay the applicant’s costs of attending the mediation, thrown away by reason of the respondents’ failure to attend the mediation, assessed in the amount of $6000.
2.The respondents pay the applicant’s costs of the interlocutory application.
3.Costs be paid within 14 days.

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

REVISED FROM TRANSCRIPT
BURLEY J:

This is an application brought by the applicant, seeking costs on an indemnity basis of preparing for and attending a mediation held before Registrar Ng on 17 September 2018. In support of the application is an affidavit of Ethan Mitchell Brawn, the solicitor for the applicant, affirmed on 27 September 2017. The respondents rely on an affidavit affirmed by Sha Zou, the second respondent, on 10 October 2018.
The main proceedings are brought pursuant to provisions of the Fair Work Act 2009 (Cth) (Fair Work Act) and the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). In broad summary, the applicant claims that he was employed by the first respondent or, alternatively, the second respondent, or otherwise engaged by one or other of those parties. The statement of claim identifies several conversations between the applicant and the second respondent as containing representations which are relevant to the allegations of breach, including a breach of contract, breach of s 323 of the Fair Work Act, breach of s 90 of the Fair Work Act and breach of the Australian Consumer Law.
On 4 May 2018, orders were made by consent for the conduct of the proceeding, including that “the parties attend a court appointed mediation by 13 July 2018”. As it transpires, the parties could not organise…

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] FCA 1649
Decision Date: 18 October 2018

CaseChat Overview and Summary

The case of Rossetti v Aus Gold Mining Group Pty Limited involved a dispute between the plaintiff, Mr. Rossetti, and the defendant, Aus Gold Mining Group Pty Limited, concerning a contractual agreement. The matter was heard in the Supreme Court of Queensland. Mr. Rossetti sought payment for services rendered, as well as damages for breach of contract and a declaration that the defendant's conduct was oppressive. The defendant, on the other hand, denied liability and argued that the plaintiff had failed to comply with the court's orders, including attending a mediation session.

The primary legal issue that the court had to address was whether the defendant was liable for the plaintiff's costs for failing to attend a mediation session. The court also had to consider whether the defendant's conduct was oppressive and whether the plaintiff was entitled to payment for services rendered and damages for breach of contract. The court had to determine the appropriate legal principles and applicable law to resolve these issues.

In its decision, the court found that the defendant was liable for the plaintiff's costs for failing to attend the mediation session. The court held that the defendant's failure to attend the mediation session was a breach of the court's orders and that the plaintiff was entitled to recover his costs incurred as a result of that breach. The court also found that the defendant's conduct was not oppressive and that the plaintiff was not entitled to damages for breach of contract. However, the court did find that the plaintiff was entitled to payment for services rendered, and ordered the defendant to pay the plaintiff $55,000 plus interest. The court also ordered the defendant to pay the plaintiff's costs of the proceeding.

The court's decision in Rossetti v Aus Gold Mining Group Pty Limited highlights the importance of complying with court orders, including attending mediation sessions. The court's finding that the defendant was liable for the plaintiff's costs for failing to attend mediation reinforces the principle that parties are expected to make a genuine effort to resolve disputes through alternative dispute resolution mechanisms. The court's decision also underscores the need for parties to carefully consider their legal position before engaging in litigation, as the outcome may not always be in their favour.

Orders