Swaminathan v Techfront Australia Pty Ltd - [2018] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWAMINATHAN v TECHFRONT AUSTRALIA PTY LTD

[2018] FCCA 700

Catchwords:
INDUSTRIAL LAW – Substantive application alleging breaches of the Fair Work Act 2009 (Cth) – alleged breaches include the failure to pay salary and annual leave entitlements – alleged breaches of the contract of employment.

COSTS – Applicant’s application for costs of directions hearing – respondent made application for costs incurred as a result of the applicant’s further amendments to the Points of Claim – applicant abandoned claims under the Australian Consumer Law – whether abandoning the claims was an unreasonable act – the applicant should get costs for attendance at the directions hearing.

Legislation:

Fair Work Act 2009, s.570

Federal Circuit Court of Australia Act 1999 (Cth), s.79
Competition and Consumer Act 2010 (Cth), sch 2

Cases cited:

Ruddock & Ors v Vadarlis & Others (No.2) [2001] FCA 1865; (2001) 115 FCR 229
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Noble v Baldwin & Anor (No.2) [2011] FMCA 700
Lee v Proctor and Gamble Australia Pty Ltd & Anor (No.2) [2012] FMCA 1075
SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711; (2013) 277 FLR 469

Saxena v PPF Asset Management Ltd [2011] FCA 395
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221
Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No.2) [2008] FCA 24
Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574
Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No.2) [2014] FCA 351

Applicant:

SATHYAMOORTHY SWAMINATHAN

Respondent:

TECHFRONT AUSTRALIA PTY LTD

File Number:

SYG 2343 of 2016

Judgment of:

Judge Nicholls

Hearing date:

Matter decided on the papers

Date of Last Submission:

21 July 2017

Delivered at:

Sydney

Delivered on:

28 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Rauf

Solicitors for the Applicant:

AI Strategic Lawyers

Counsel for the Respondent:

Mr I Latham

Solicitors for the Respondent:

Mills Oakley Lawyers

ORDERS

The respondent’s application for costs is dismissed.
The respondent pay the applicant’s costs for the directions hearing on 12 July 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2343 of 2016

SATHYAMOORTHY SWAMINATHAN

Applicant

And

TECHFRONT AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

This judgment is concerned with two costs applications. One costs application was made by the applicant (Mr Swaminathan), and the other was made by the respondent (Techfront Australia Pty Ltd (“Techfront”)). The relevant background to the applications is as follows.
On 30 August 2016, Mr Swaminathan made an application to this Court pursuant to the Fair Work Act 2009 (Cth) (“the FWA”). That application arose out of the termination of Mr Swaminathan’s contract of employment with Techfront. The application also sought damages for what Mr Swaminathan alleged were Techfront’s breaches of the Australian Consumer Law (“ACL”) (Schedule 2 to the Competition and Consumer…

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.

Continue reading Swaminathan v Techfront Australia Pty Ltd

Details

AGLC: Swaminathan v Techfront Australia Pty Ltd [2018] FCCA 700
Case: [2018] FCCA 700
Decision Date: 28 March 2018

CaseChat Overview and Summary

In *Swaminathan v Techfront Australia Pty Ltd*, the applicant, Ms Swaminathan, brought proceedings in the Federal Circuit and Family Court of Australia alleging breaches of the *Fair Work Act 2009* (Cth), including failures to pay salary and annual leave entitlements, as well as breaches of her contract of employment. The respondent, Techfront Australia Pty Ltd, sought costs associated with further amendments to the applicant's Points of Claim, particularly in light of the applicant abandoning claims previously made under the Australian Consumer Law.

The central legal issue before the Court was whether the applicant's abandonment of her Australian Consumer Law claims constituted an unreasonable act, thereby justifying an order for the respondent to pay the costs incurred as a result of those amendments. The Court was also required to determine the applicant's entitlement to costs for her attendance at a directions hearing.

Judge Nicholls reasoned that while the applicant had amended her Points of Claim, the abandonment of the Australian Consumer Law claims did not, in itself, render her conduct unreasonable. The Court considered that the applicant was entitled to costs for her attendance at the directions hearing.

Orders