FEDERAL COURT OF AUSTRALIA
Stephen v Seahill Enterprises Pty Ltd [2022] FCAFC 85
Appeal from: Application for leave to appeal: Stephen v Seahill Enterprises Pty Ltd [2021] FWCFB 2623 File number: QUD 172 of 2021 Judgment of: LOGAN, ANDERSON AND DOWNES JJ Date of judgment: 14 February 2022 Catchwords: INDUSTRIAL LAW – application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission – where Full Bench upheld appeal against decision of Commissioner of the Fair Work Commission determining certain documents were subject to legal professional privilege – where applicant contended that finding of legal professional privilege and that there had been no waiver of privilege was irrational, illogical or unreasonable – where any error by Full Bench was an error within jurisdiction – application dismissed
COSTS – costs in proceedings relating to a matter arising under the Fair Work Act 2009 (Cth) – unreasonable acts or omissions causing the other party to incur costs – where lapse by applicant in complying with timetable for filing and service of appeal book – where case management hearing convened to ascertain date for filing of overdue application book – where applicant abandoned grounds of application during course of hearing – application for costs granted
Legislation: Judiciary Act 1903 (Cth) s 39B
Fair Work Act 2009 (Cth) ss 570, 590, 607, 789FC
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited: AWB Ltd v Cole (2006) 152 FCR 382
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337
Craig v South Australia (1995) 184 CLR 163
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 51 Date of hearing: 14 February 2022 Counsel for the Applicant: Mr C Jennings QC with Mr G Rebetzke Solicitor for the Applicant: Archibald & Brown Lawyers Counsel for the First and Second Respondents: Mr TA Spence Solicitor for the First and Second Respondents: Carter Newell Lawyers Counsel for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs ORDERS
QUD 172 of 2021
BETWEEN: DAMIEN STEPHEN
Applicant
AND: SEAHILL ENTERPRISES PTY LTD
First Respondent
DENISE FITZGIBBONS
Second Respondent
FAIR WORK COMMISSION
Third Respondent
ORDER MADE BY:
LOGAN, ANDERSON AND DOWNES JJ
DATE OF ORDER:
14 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the following costs of the first and second respondents:
(a)the costs of and incidental to the directions hearing conducted on 9 February…
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- Case
- [2022] FCAFC 85
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Full Bench's decision was irrational, illogical, or unreasonable. The applicant contended that the Full Bench erred in finding that the documents were subject to legal professional privilege and that there had been no waiver of privilege. However, the court found that the Full Bench's decision was not irrational, illogical, or unreasonable, and therefore, the application for judicial review was dismissed.
The court held that any error by the Full Bench was an error within jurisdiction, and therefore, the application for writs in the nature of certiorari and mandamus was dismissed. The court also granted an application for costs against the applicant, finding that the applicant's lapse in complying with the timetable for filing and serving the appeal book and abandoning grounds of the application during the course of the hearing constituted unreasonable acts or omissions that caused the respondents to incur costs.
The court ordered that the application be dismissed and that the applicant pay the respondents' costs, including the costs of and incidental to the directions hearing conducted on 9 February 2022 and 40% of the respondents' costs incurred following the service on the applicant of the respondents' outline of submissions. The costs were to be fixed by a Registrar in the absence of agreement.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the following costs of the first and second respondents:
(a) the costs of and incidental to the directions hearing conducted on 9 February 2022; and
(b) 40% of the first and second respondents’ costs incurred following the service on the applicant of the respondents’ outline of submissions, in each instance, the costs to be fixed by a Registrar in the absence of agreement.
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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