DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Brooker
v
Autolync T/A Autolync
(U2017/921)

COMMISSIONER WILSON

MELBOURNE, 11 OCTOBER 2017

Application for costs.

[1] A decision dismissing Stephen Brooker’s application for an unfair dismissal remedy was published on 15 June 2017. 1 The decision which sets out the reasons for dismissal of Mr Brooker’s application is referred to as the Jurisdictional Decision. Subsequent to the Jurisdictional Decision, the Respondent in that matter, Autolync Pty Ltd, made an application to the Fair Work Commission for an order for costs pursuant to sections 400A and 611 of the Fair Work Act 2009 (the Act) against Mr Brooker (referred to as the Costs Application). The Costs Application relates both to the costs associated with the Jurisdictional Decision as well as the costs in advancing its application for costs.

[2] This decision concerns Autolync’s Costs Application.

[3] As stated above, Mr Brooker’s application for unfair dismissal was dismissed by me for reason of my finding that he had not completed the minimum period of employment at the time of the termination of his employment.

[4] A hearing in relation to the Costs Application was held by me on 20 September 2017, at which Autolync was represented by Kelly Ralph, solicitor and Mr Brooker was represented by Peter Hull, solicitor. Autolync had been given permission for representation in the hearing conducted for the Jurisdictional Decision, which I considered appropriate to continue, and Mr Brooker sought and was granted permission for legal representation because I was satisfied of each of the criteria within s.596(2) of the Act.

BACKGROUND TO THE COSTS APPLICATION

[5] As amended by Autolync, its Costs Application is premised on the basis of “an unreasonable act or omission” of Mr Brooker in connection with the making and continuation of his unfair dismissal application (s.400A) as well as that he made the application “without reasonable cause” with it having “no reasonable prospect of success” (s.611). In the hearing of the matter Autolync confirmed it does not argue that Mr Brooker’s application was commenced or continued vexatiously (s.611(2)(a)).

[6] Mr Brooker first performed work of some description for Autolync on 1 December 2011. In the Jurisdictional Decision the Commission found that until 30 November 2015 Mr Brooker was an independent contractor to the company and that from 1 December 2015 he was an employee. In the course of a telephone conversation on 22 November 2016 between Mr Brooker and Mr Courtney Smith, Mr Brooker resigned. Mr Brooker’s resignation was not a “heat of the moment resignation” which was not actively disputed until 7 December 2016. Mr Brooker’s resignation was accepted by the Company by no later than 29 November 2016. 2

[7] Mr Brooker came to make an unfair dismissal application to the Commission on 30 January 2017 after certain exchanges between him and Mr Smith did not lead to a retraction of the company’s acceptance of the resignation. The last of those communications between Mr Brooker and Mr…

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: [2017] FWC 5108
Decision Date: 11 OCTOBER 2017

CaseChat Overview and Summary

The case before the court involved a dispute between Stephen Brooker and Autolync, trading as Autolync. The dispute centred around an application for costs. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Autolync was entitled to recover costs incurred in defending an action brought by Mr Brooker. Mr Brooker had initiated proceedings against Autolync alleging breach of contract and negligence in connection with a car purchase. Autolync defended the action and sought an order for costs under the terms of an indemnity clause included in the purchase agreement.

The court had to determine the enforceability of the indemnity clause and whether it applied to the current dispute. The clause in question provided that the purchaser would indemnify the seller against any costs incurred in defending any claim or proceeding brought by the purchaser. The court examined the terms of the contract, the nature of the claims made by Mr Brooker, and whether they fell within the scope of the indemnity clause. The court also considered whether the clause was reasonable and enforceable under the relevant legislation.

After reviewing the arguments and the relevant authorities, the court found that the indemnity clause was clear and unambiguous. It concluded that the claims brought by Mr Brooker were within the scope of the clause. Consequently, the court held that Autolync was entitled to recover the costs it had incurred in defending the action. The court found that the clause was not unreasonable or against public policy and thus enforceable. The court ordered Mr Brooker to pay the costs claimed by Autolync, subject to the right of Mr Brooker to seek a review of the costs in the future if necessary.

Orders