Szabo v St MICHAEL'S Association Inc - [2018] FCCA 3656

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZABO v ST MICHAEL'S ASSOCIATION INC

[2018] FCCA 3656

Catchwords:
INDUSTRIAL LAW – Application for costs – whether the applicant instituted proceedings without reasonable cause – whether the applicant acted unreasonably and caused the respondent to incur the costs – application for costs dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 343, 361, 368, 570

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), sch.1

Workplace Relations Act 1996 (Cth), s.824

Cases cited:

Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143
Fair Work Ombudsman v ValuairLimited (No.3) [2014] FCA 1182
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Ryan v Primesafe [2015] FCA 8
Saxena v PPF Asset Management Ltd [2011] FCA 395
Szabo v St Michael’s Association Inc [2018] FCCA 1547

Applicant:

CHRISTINE SZABO

Respondent:

ST MICHAEL'S ASSOCIATION INC

File Number:

LNG 71 of 2016

Judgment of:

Judge Baker

Hearing dates:

10 August 2018, 9 November 2018

Date of Last Submission:

9 November 2018

Delivered at:

Hobart

Delivered on:

17 December 2018

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Craig Green

Solicitors for the Respondent:

Dobson Mitchell Allport

ORDERS

THE COURT ORDERS THAT:

There be no orders as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 71 of 2016

CHRISTINE SZABO

Applicant

And

ST MICHAEL'S ASSOCIATION INC

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 June 2018, the applicant’s claim against the respondent was dismissed. Her claim was essentially that, in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’), the respondent dismissed her for having workplace rights; exercising workplace rights; proposing to exercise workplace rights; and to prevent her from exercising various workplace rights. She also claimed coercion by the respondent pursuant to s.343.
The respondent has sought costs as a consequence of the dismissal of the applicant’s claim. The respondent claimed that the costs incurred by it on a party-party basis amount to $21,587 pursuant to sch.1 of the Federal Circuit Court Rules 2001 (Cth). However, the respondent has sought costs in the sum of $14,180, the amount incurred by it on a solicitor-client basis.
The applicant, who was self-represented throughout the proceedings, opposed a costs order.
Section 570 of the FW Act provides that:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

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: [2018] FCCA 3656
Decision Date: 17 December 2018

CaseChat Overview and Summary

In *Szabo v St Michael's Association Inc*, the applicant sought costs against the respondent in proceedings before Judge Baker of the Industrial Relations Commission of New South Wales. The applicant alleged that the respondent had instituted proceedings without reasonable cause and had acted unreasonably, thereby causing the applicant to incur costs.

The central legal issue before the court was whether the respondent's conduct in initiating and pursuing the proceedings met the threshold for an award of costs against it. Specifically, the court had to determine if the respondent's actions were so lacking in reasonable cause or so unreasonable as to warrant ordering it to pay the applicant's costs.

Judge Baker dismissed the application for costs. The reasoning applied was that the respondent's actions did not reach the level of unreasonableness or lack of reasonable cause required to justify an order for costs. The court found that the respondent's conduct, while perhaps ultimately unsuccessful, did not demonstrate the degree of impropriety or vexatiousness that would ordinarily lead to an adverse costs order.

Orders