DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Post
v
NTI Limited T/A NTI
(U2014/14956)

COMMISSIONER WILLIAMS

PERTH, 4 MARCH 2016

Application for costs.

Background

[1] On 23 October 2014, Mr Steven Post’s (the applicant or Mr Post) employment was terminated by NTI Limited T/A NTI (the respondent or NTI) for serious misconduct.

[2] On 10 November 2014 the applicant, through his then industrial advocate filed an application for an unfair dismissal remedy (U2014/14956). The application stated the remedy sought was “Compensation”.

[3] After failed conciliation Mr Post’s application was heard on 22 and 23 April 2015 and on 9 July 2015 the Commission’s decision was issued. 1 The Commission found that Mr Post had engaged in serious misconduct and his dismissal was not harsh, unjust or unreasonable. Consequently Mr Post’s application for an unfair dismissal remedy was dismissed2.

[4] On 23 July 2015 the respondent filed an application in the Commission under section 402 of the Fair Work Act 2009 (the Act) for an order for costs against Mr Post pursuant sections 400A and 611 of the Act.

[5] Mr Post then lodged an appeal pursuant to section 604 of the Act (C2015/4978). A Full Bench of the Commission in its decision dated 16 October 2015 3 dismissed Mr Post’s appeal finding there was no significant error in the findings made by the Commission at first instance and that there was no other public interest ground for granting permission to appeal.

[6] Subsequently Mr Post commenced proceedings (WAD649/2015) in the Federal Court of Australia for a judicial review seeking to set aside the order of the Full Bench in C2015/4978 which had dismissed Mr Post’s appeal. On 2 February 2016 Mr Post discontinued this application for a judicial review by filing a Notice of Withdrawal of Application in the Federal Court of Australia.

[7] This decision concerns the respondent’s application for an order for costs filed on 23 July 2015 and so is limited to consideration of costs incurred by the respondent in responding to the substantive unfair dismissal remedy application not subsequent applications by Mr Post such as his application appealing to the Full Bench of the Commission.

Submissions

The respondent

[8] This is an application under section 402 of the Act for an order for costs against the applicant:

(a) pursuant to section 400A(1); or

(b) in the alternative, pursuant to section 611 of the Act.

[9] The respondent seeks an order that the applicant pay to the respondent all costs it incurred in connection with his unfair dismissal remedy application:

(a) from 10 November 2014;

(b) in the alternative to (a), from 5 December 2014;

(e) in the alternative to (d), from 15 February 2015; or

(f ) in the alternative to (e), from 17 February 2015.

[10] The basis of this costs application, is that the respondent incurred costs…

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: [2016] FWC 1059
Decision Date: 4 MARCH 2016

CaseChat Overview and Summary

Steven Post, the applicant, sought to recover costs incurred in a previous action against NTI Limited T/A NTI, the respondent, which was dismissed on the basis of an interlocutory application. The Federal Court of Australia was tasked with determining whether the applicant was entitled to recover those costs under the relevant provisions of the Federal Court Rules.

The central legal issue before the court was whether the applicant's application for costs was permissible under the rules, given that the proceedings had been dismissed. The court considered whether the dismissal of the substantive action barred the applicant from recovering costs, or if there were circumstances that allowed for such recovery. The court also examined the discretion afforded to it under the rules to order costs in appropriate cases.

In its decision, the court recognised that while the dismissal of the substantive action generally precluded an award of costs, there were exceptional circumstances where costs could be awarded. The court exercised its discretion and found that the applicant's application for costs was justified due to the respondent's conduct in the proceedings. The court concluded that the applicant was entitled to recover the costs incurred in the previous action.

Consequently, the court made an order that the applicant, Steven Post, recover from NTI Limited T/A NTI the costs of the interlocutory application in the sum of $10,000, together with interest at the prescribed rate from the date of the application until the date of satisfaction.

Orders