Ruttley v Willis Bros Installations (Qld) Pty Ltd - [2022] FedCFamC2G 942

Federal Circuit and Family Court of Australia
(DIVISION 2)
Ruttley v Willis Bros Installations (QLD) Pty Ltd [2022] FedCFamC2G 942]

File number(s): BRG 479 of 2020

Judgment of: JUDGE VASTA

Date of judgment: 21 November 2022

Catchwords: PRACTICE & PROCEDURE – Costs – assessment of costs –respondent to pay applicant’s costs fixed

Legislation: Fair Work Act 2009 (Cth): s, 546, s 570

Cases cited: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4

Division: Division 2 General Federal Law

Number of paragraphs: 27

Date of last submission/s: 7 September 2022

Date of hearing: In Chambers

Place: Brisbane

Counsel for the Applicant: Ms Blattman

Solicitor for the Applicant: Shand Taylor Lawyers

Counsel for the Respondent: Ms A-Khavari

Solicitor for the Respondent: K & L Gates
ORDERS

BRG 479 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
TIMOTHY JOHN RUTTLEY

Applicant

AND:
WILLIS BROTHERS INSTALLATIONS (QLD) PTY LTD ACN 132 309 936

Respondent

order made by:

JUDGE VASTA

DATE OF ORDER:

21 November 2022

THE COURT ORDERS THAT:
1.The Respondent pay the Applicant’s costs of and incidental to the application fixed in the sum of $25,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction

On 9 June 2022, Her Honour Judge Tonkin made a declaration that the Respondent had contravened three sections of the Fair Work Act 2009 (Cth) (“FW Act”). Her Honour ordered that the Respondent pay, to the Applicant, compensation in the amount of $162,631 with interest.
On 3 August 2022, Her Honour heard an application for the imposition of pecuniary penalties following the making of the declaration of contravention of the FW Act. On 4 November 2022, Her Honour ordered that the Respondent pay pecuniary penalties in the amount of $75,600. Her Honour ordered that the Respondent pay that sum to the Applicant.
The Applicant had made an application for costs. Her Honour transferred the determination of that matter. The matter came into my docket and the parties, through Her Honour’s Chambers, asked me to determine the matter “on the papers”.
General observations
I have gleaned the background to this matter solely through reference to the decisions made by Her Honour on 9 June 2022 and 4 November 2022.
It is clear from those decisions that Her Honour did not accept the evidence that was adduced by the Respondent and was extremely critical of the main witness for the Respondent.
Costs in proceedings under the FW Act
The fair work jurisdiction is known to be a “no costs” jurisdiction. The awarding of costs in…

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: [2022] FedCFamC2G 942
Decision Date

CaseChat Overview and Summary

The case of Ruttley v Willis Bros Installations (Qld) Pty Ltd involved a dispute between the Applicant, Ruttley, and the Respondent, Willis Bros Installations (Qld) Pty Ltd. The Applicant sought pecuniary penalties and subsequently sought an order for costs from the Respondent, having already been awarded the pecuniary penalties. The case was heard in a relevant Australian court.

The primary legal issue before the court was whether the Applicant was entitled to an order for costs from the Respondent. The Applicant argued for his costs to be awarded on an indemnity basis, while the Respondent contested this request. The court needed to determine the appropriate basis for awarding costs, considering the history of the matter and the conduct of both parties.

The court determined that while the Applicant had already been awarded pecuniary penalties, it was appropriate to make a costs order. However, the court was not persuaded that there had been a special or exceptional aspect to the conduct of the Respondent that would justify an award of indemnity costs. Instead, the court found that ordering costs on a fixed sum basis would be more appropriate, taking into account the history of the matter and the potential for additional costs in calculating and taxing costs on an indemnity basis. The court concluded that an order for costs in the sum of $25,000 was appropriate.

The court ordered that the Respondent pay the costs of the Applicant in the fixed sum of $25,000. This order aimed to balance the need for the Applicant to recover costs for the proceedings while also considering the Respondent’s conduct and the overall circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant has already had the advantage of an order that he be the recipient of the pecuniary penalties because of such factors, yet now he is asking for his costs.Conclusion Notwithstanding all that I have just said, I am of the view that a costs order, of some description, should be made. The Applicant has asked for his costs on an indemnity basis. Given the history of the matter, I am not persuaded that there has been a special, or exceptional, aspect to the conduct of the Respondent that would justify an award of indemnity costs. This would mean ordering costs on the scale amount. This would also mean that there would be more costs expended in calculating, and even taxing, those costs. In my view, it would be best that I simply arrive an appropriate sum myself and order costs to be paid in a fixed sum.Order In all of the circumstances, I order that the Respondent pay the costs of the Applicant fixed in the sum of $25,000.

Ratio Decidendi

Legal Principle Established

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File number(s):	BRG 479 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	21 November 2022
Catchwords:	PRACTICE & PROCEDURE – Costs – assessment of costs –respondent to pay applicant’s costs fixed
Legislation:	Fair Work Act 2009 (Cth): s, 546, s 570
Cases cited:	Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Division:	Division 2 General Federal Law
Number of paragraphs:	27
Date of last submission/s:	7 September 2022
Date of hearing:	In Chambers
Place:	Brisbane
Counsel for the Applicant:	Ms Blattman
Solicitor for the Applicant:	Shand Taylor Lawyers
Counsel for the Respondent:	Ms A-Khavari
Solicitor for the Respondent:	K & L Gates

BRG 479 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	TIMOTHY JOHN RUTTLEY Applicant
AND:	WILLIS BROTHERS INSTALLATIONS (QLD) PTY LTD ACN 132 309 936 Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	21 November 2022