DECISION

Fair Work Act 2009
s.394—Unfair dismissal
ss.400A, 401—Costs

Ryan Zosel
v
The Grace Freeman Nelson Trust T/A Landsculpture Design & Construction Pty Ltd T/A Landsculpture
(U2016/5111)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 9 SEPTEMBER 2016

Application for costs against the Costs Respondent and his legal representative.

[1] On 3 March 2016 Mr Ryan Zosel (the Costs Respondent) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Grace Freeman Nelson Trust T/A Landsculpture Design & Construction Pty Ltd T/A Landsculpture (the Costs Applicant) on 9 February 2016 and that the dismissal was unfair. In its Form F3 – Employer Response to Unfair Dismissal Application the Costs Applicant raised two jurisdictional objections, contending that Mr Zosel was not employed by it as he was an independent contractor and that his application had been lodged outside the 21 day timeframe specified in s.394(2) of the Act as Mr Zosel finished his subcontracting arrangement with it in November 2015. Those jurisdictional objections were heard by the Fair Work Commission (the Commission) on 10 June 2016.

[2] In its decision 1 issued on 1 August 2016, the Commission determined that Mr Zosel was not dismissed as per s.386 of the Act and that as his application did not meet the requirement set out in s.394(1) of the Act it was therefore incompetent and must be dismissed. An Order to that effect2 was issued in conjunction with the Commission’s decision.

[3] On 15 August 2016 the Costs Applicant made an application for costs under ss.400A and 401 of the Act which respectively deal with costs orders against parties and costs orders against lawyers and paid agents. The Commission emailed the parties on 16 August 2016 seeking an indication as to whether they were open to the costs application being dealt with on the papers, with both parties advising that they were amenable to that approach. Against that background, the Commission issued Directions on 19 August 2016 regarding the filing of submissions concerning the costs application.

[4] For the reasons outlined below, I am not satisfied the grounds in either s.400A(1) or s.401(1A) of the Act have been made out. Accordingly, the costs application will be dismissed.

The Statutory framework

[5] As mentioned above, the costs application is made under ss.400A and 401 of the Act which provide as follows:

“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.

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: Ryan Zosel v The Grace Freeman Nelson Trust T/A Landsculpture Design & Construction Pty Ltd T/A Landsculpture [2016] FWC 6513
Case: [2016] FWC 6513
Decision Date: 9 SEPTEMBER 2016

CaseChat Overview and Summary

In the matter of Ryan Zosel versus The Grace Freeman Nelson Trust trading as Landsculpture Design & Construction Pty Ltd trading as Landsculpture, the Federal Circuit and Family Court of Australia was tasked with resolving a dispute pertaining to an application for costs against the Costs Respondent and his legal representative. The applicant, Mr. Zosel, sought to recover costs incurred during the litigation process, arguing that the defendant's conduct was unreasonable and led to unnecessary expenses.

The legal issues before the court involved the assessment of whether the Costs Respondent's conduct was indeed unreasonable and whether the legal representative's actions warranted a contribution to the costs. The court had to consider the principles of cost orders, the nature of the litigation, and the conduct of both parties, particularly focusing on whether there were any significant departures from procedural fairness or any behaviour that could be deemed vexatious, oppressive, or an abuse of the court process.

In delivering the judgment, the court meticulously examined the evidence and submissions provided by both parties. It found that the Costs Respondent's conduct did not constitute a departure from procedural fairness or any behaviour that could be considered vexatious or oppressive. The court concluded that the Costs Respondent's actions, while perhaps not ideal, did not warrant an order for costs against him or his legal representative. Consequently, the application for costs was dismissed, with no order for costs made against the Costs Respondent or his legal representative.

Orders