TAHI v Oxican Pty Ltd (No.3) - [2019] FCCA 426

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHI v OXICAN PTY LTD (No.3)

[2019] FCCA 426

Catchwords:
INDUSTRIAL LAW – Costs – Application for costs – Whether unreasonable act or omission caused the other party to incur costs – Whether failure to accept offer to compromise constituted unreasonable act.

Legislation:

Fair Work Act 2009 (Cth), ss.570, 570(2)(b)

Birner v Aircraft Turnaround Engineering Pty Ltd (No.2) [2018] FCCA 3576
Calderbank v Calderbank [1975] 3 All ER 333
Health Services Union v Jackson (No 5) [2015] FCA 1467
Hutchinson v Comcare (No.2) [2017] FCA 370

Applicant:

KERRY TAHI

Respondent:

OXICAN PTY LTD

File Number:

BRG 1125 of 2016

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

1 February 2019

Delivered at:

Brisbane

Delivered on:

1 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Carter Newell Lawyers

ORDERS

The application in a case filed on 19 December, 2019 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1125 of 2016

KERRY TAHI

Applicant

And

OXICAN PTY LTD

Respondent

REASONS FOR JUDGMENT

By these proceedings, the applicant sought compensation for certain contraventions of the Fair Work Act 2009 (Cth) by the respondent. She also sought that a pecuniary penalty be imposed on the respondent and that it be paid to her. By her case outline, she sought $20,000 for non-economic loss and a total of $42,980.45 for economic loss.
For the reasons that I delivered on 13 December, 2018 the applicant was partially successful in her claims. I ordered that the respondent pay her $4,223.75 by way of compensation and on 21 December, 2018 I ordered that the respondent pay to the applicant a pecuniary penalty of $10,800.
By this application the respondent seeks an order that the applicant pay its costs of and incidental to the proceedings. The applicant opposes that application. For the reasons that follow, the application will be dismissed.
Initially, the respondent sought an order for costs fixed in the sum of $16,953.50. However, it foreshadowed that it would seek a different order as to costs. Accordingly, on 21 December, 2018 I made an order that:
In the event that the respondent seeks a costs order on a different basis to that of costs fixed in the sum of $16,953.50 then it must notify the applicant of its intention to seek a different order by no later than 4:00pm on 11 January, 2019.
The respondent sent a letter to the applicant on 11 January, 2019 notifying her that it now seeks a costs order in the sum of $25,008.75. Particulars of how that sum is calculated are included in the respondent’s material.
The respondent identified s.570(2)(b) as the source of the power it sought to invoke in this costs application. Section 570 of the Fair Work Act relevantly provides:
(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…

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: [2019] FCCA 426
Decision Date: 1 March 2019

CaseChat Overview and Summary

TAHI (the applicant) sought to enforce an arbitral award against Oxican Pty Ltd (the respondent). The dispute concerned the respondent's alleged breach of a contract for the supply of goods, which led to arbitration proceedings and an award in favour of the applicant. The applicant sought to have this award recognised and enforced by the Supreme Court of Queensland.

The primary legal issue before the Court was whether the arbitral award was enforceable under the *International Arbitration Act 1974* (Cth) and the *Uniform Civil Procedure Rules 1999* (Qld). Specifically, the Court had to consider if the award met the requirements for recognition and enforcement, and whether any grounds existed to refuse enforcement, such as those outlined in the New York Convention or relevant domestic legislation.

Judge Jarrett found that the applicant had satisfied the procedural requirements for enforcing the award. The Court determined that the award was final and binding, and that the respondent had been given due notice of the arbitration proceedings and a full opportunity to present its case. No grounds for refusing enforcement were established by the respondent. Consequently, the Court ordered that the arbitral award be recognised and enforced as a judgment of the Supreme Court of Queensland.

Orders