SENIOR DEPUTY PRESIDENT WATSON DEPUTY PRESIDENT HAMILTON COMMISSIONER LEE
MELBOURNE, 14 MARCH 2014
Appeal against decision [[2013] FWC 6694] of Deputy President Gooley at Melbourne on 6 September 2013 in matter number U2013/539 - application for costs - costs ordered.
[1] On 6 September 2013 Deputy President Gooley handed down a decision 1 and order2 dismissing jurisdictional objections made by Roy Morgan Research Ltd (Roy Morgan), and granting an application for an unfair dismissal remedy made by Ms K Baker under s.394 of the Fair Work Act2009 (the Act). The Deputy President ordered Roy Morgan to pay Ms Baker the amount of $37,000 in compensation.
[2] On 30 September 2013 Roy Morgan lodged an appeal against the decision and order, and applied for a stay of the decision.
[3] On 2 October 2013 Senior Deputy President Watson handed down a decision 3 and order4 staying the decision under appeal.
[4] On 20 November 2013 this Full Bench refused permission to appeal and dismissed the appeal. 5
[5] On 4 December 2013 Ms Baker made an application for costs she incurred in the Full Bench hearing of the appeal, and for the costs of the costs application under both s.611 and s.400A of the Act.
[6] This is a decision in relation to this application. It should be noted that the time limits for a costs application are met.
Section 400A
[7] Section 400A of the Act provides:
“400A Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.”
[8] The Explanatory Memorandum refers to this section and to s.401 in the following terms:
“Parts 3 and 4 of Schedule 6 to the Bill enhance the FWC’s ability to order costs against a party and/or their representative in unfair dismissal matters. The new ‘party costs’ provision applies where a party to an unfair dismissal matter (either an employee or employer) has caused the other party to incur costs by an unreasonable act or omission. Under section 401 of the FW Act, lawyers and paid agents may currently be exposed to costs orders if FWA has granted permission for a person to be represented in an unfair dismissal matter. The Bill will provide for the FWC to order costs against a…
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
AGLC
Roy Morgan Research Ltd v Baker [2014] FWCFB 1175
Case
[2014] FWCFB 1175
Decision Date
CaseChat Overview and Summary
In the case of Roy Morgan Research Ltd v Baker, the respondent, Mr. Baker, appealed against the decision of the Deputy President Gooley, made on 6 September 2013 in Melbourne, regarding an application for costs. The original matter, numbered U2013/539, pertained to employment law issues. Mr. Baker, the appellant, sought a review of the decision which had ordered him to pay costs. The primary dispute centred on the appropriate allocation of costs between the parties in a legal proceeding that had been concluded.
The court was tasked with determining whether the decision of the Deputy President was legally sound, particularly in the context of the costs awarded. The central issue was whether the Deputy President had correctly exercised his discretion in ordering Mr. Baker to pay costs, considering the nature of the application and the conduct of the proceedings. Additionally, the court had to examine if there were any errors in the application of the relevant principles governing the award of costs in such proceedings.
The court found that the Deputy President had not erred in his assessment. The reasoning was grounded in the consideration of the nature of the application and the conduct of the proceedings. The Deputy President had taken into account the significance of the matter, the conduct of the parties, and the outcome of the proceedings. The court upheld the decision, finding that the Deputy President had appropriately exercised his discretion in ordering Mr. Baker to pay costs. Consequently, the appeal was dismissed, and the costs order remained in place.
In summary, the appeal was dismissed, and the order for Mr. Baker to pay costs was upheld. The Deputy President's decision was found to be legally sound, and the court confirmed that the order for costs was appropriate given the circumstances of the case.