Sabapathy v Jetstar Airways (No 2)

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FEDERAL COURT OF AUSTRALIA

Sabapathy v Jetstar Airways (No 2) [2021] FCAFC 68

Appeal from: Application for leave to appeal: Sabapathy v Jetstar Airways & Ors [2020] FCCA 1433
File numbers: NSD 615 of 2020
NSD 786 of 2020
Judgment of: LOGAN, FLICK AND KATZMANN JJ
Date of judgment: 11 May 2021
Catchwords: PRACTICE AND PROCEDURE – Costs – Fair Work Act 2009 (Cth), s 570(2) – whether occasion for the awarding of costs established – order for costs against solicitor
Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43

Federal Court Rules 2011 (Cth) rr 1.40, 40.07

Cases cited:

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318

Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67

Re McJannett; Ex parte Australian Workers’ Union of Employees, Queensland (No 2) (1997) 189 CLR 654

Ryan v Primesafe [2015] FCA 8; 323 ALR 107

Sabapathy v Jetstar Airways [2021] FCAFC 25

Stanley v Service to Youth Council Inc (No 3) (2014) 225 FCR 357

Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2) [2021] FCAFC 13

Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 19
Date of last submission/s: 21 April 2021
Date of hearing: Determined on the papers
Solicitor for the Applicant: Haywards Solicitors
Counsel for the Respondents: Mr R Dalton QC with Mr A Pollock
Solicitor for the Respondents: Herbert Smith Freehills
Counsel for Mr Michael Harmer, Solicitor: Mr E Munston
Solicitor for Mr Harmer: Sparke Helmore Lawyers

ORDERS

NSD 615 of 2020
BETWEEN:

RAJESH SABAPATHY

Applicant
AND:

JETSTAR AIRWAYS ABN 33 069 720 243

First Respondent

CAPTAIN PETER TERRILL

Second Respondent

CAPTAIN DAVID MCCUTCHEON (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

LOGAN, FLICK AND KATZMANN JJ

DATE OF ORDER:

11 MAY 2021

THE COURT ORDERS THAT:

1.Mr Michael Harmer pay the respondents’ costs on an indemnity basis, to be assessed by a registrar if not agreed.

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


ORDERS

NSD 786 of 2020
BETWEEN:

RAJESH SABAPATHY
Applicant
AND:

FEDERAL CIRCUIT COURT OF AUSTRALIA

First Respondent

JETSTAR AIRWAYS ABN 33 069 720 243

Second Respondent

CAPTAIN PETER TERRILL (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

LOGAN, FLICK AND KATZMANN JJ

DATE OF ORDER:

11 MAY 2021

THE COURT ORDERS THAT:

1.There be no order as to costs.

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


REASONS FOR JUDGMENT

THE COURT:

  1. This proceeding involved an application for leave to appeal (NSD 615/2020) (the leave application) and…

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Details
Case
[2021] FCAFC 68
Decision Date

CaseChat Overview and Summary

Sabapathy v Jetstar Airways (No 2) involved a dispute between the applicant, Sabapathy, and Jetstar Airways regarding the costs associated with the proceedings. The matter was heard in the Federal Court of Australia. The primary focus of the case was on the application for costs under the Fair Work Act 2009 (Cth), specifically section 570(2), which allows the court to order costs against a solicitor if it finds that the occasion for the awarding of costs has been established.

The legal issues that the court had to decide involved whether the criteria for awarding costs against a solicitor had been met. This included assessing if the conduct of the solicitor was unreasonable or vexatious, and whether it was appropriate to order costs against the solicitor based on the conduct of the proceedings. The court also needed to determine if the application for costs was made in a manner that was reasonable and justifiable under the circumstances.

The court, in its reasoning, found that the application for costs did not establish the necessary occasion for the awarding of costs against the solicitor. The court concluded that the conduct of the solicitor did not meet the threshold for being deemed unreasonable or vexatious, and therefore, the application for costs was not justified. Consequently, the court ruled that there be no order as to costs against the solicitor. The decision highlights the importance of meeting the criteria for awarding costs and the scrutiny applied by the court in such matters.

Orders

Orders of the court

1. There be no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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