The Trustee for the MTGI Trust T/A Macquarie Technology Group International v Mr David Johnston

[2015] FWC 3641

[2015] FWC 3641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Trustee for The MTGI Trust T/A Macquarie Technology Group International
v
Mr David Johnston
(C2015/4021)

VICE PRESIDENT CATANZARITI BRISBANE, 1 JUNE 2015

Appeal against decision [2015] FWC 996 of Justice Boulton, Senior Deputy President at Sydney on 30 April 2015 in matter number U2014/345.

[1] On 30 April 2015, the Senior Deputy President issued an order 1 (Order) and decision2 (Decision) in matter U2014/345, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) filed by Mr David Johnson (Respondent) against his employer the Trustee for MTGI Trust T/A Macquarie Technology Group International (MTGI) (Appellant).

[2] Previously, on 24 October 2014, His Honour issued a decision 3 awarding compensation to the Respondent. The 30 April 2015 Decision and Order were in respect of the costs application. Although it is not necessary to traverse the details of that application, I note that the application concerned whether the response to the unfair dismissal application was made vexatiously or without reasonable cause and whether costs had been incurred due to the unreasonable acts or omissions of the Appellant.

[3] With respect to the costs application, the Senior Deputy President made the following relevant findings:

“[46]The parties did not present detailed submissions regarding the costs incurred by the applicant in relation to the unfair dismissal application or the appropriate amount of costs which should be awarded in this matter. However, having regard to the conduct of the proceedings and the circumstances of the case, I am satisfied that significant legal costs have been incurred by the applicant in pursuing the unfair dismissal application. Those costs have included the costs relating to the general care and conduct of the matter, including in dealing with and responding to the numerous emails sent to the Commission by the respondent in the course of the matter and the allegations raised by the respondent, and costs associated with the appearances of the applicant's solicitor in the hearings. As set out earlier in this decision, I am also satisfied that costs have been incurred by the applicant due to the respondent’s unreasonable conduct in the proceedings and its pursuit of a response which had no reasonable prospect of success.

[47] I have decided that it is appropriate in this matter to make a lump-sum award of costs. This will avoid the expense, delay and possible aggravation which might be involved in further proceedings regarding the taxation and assessment of costs.

[48] In all the circumstances of the present matter, I consider that it is appropriate to award the applicant approximately half of the costs claims. Having regard to the difficulty of the matter and the complicated and protracted nature of the unfair dismissal proceedings, I consider that such an amount to be reasonable and fair in the circumstances of the case.”

[4] Accordingly, the Senior Deputy President made the Order in the following terms:

“Further to the decision dated 30 April 2015, the Fair Work Commission orders that the respondent pay $8,470 towards the costs of the applicant within 21 days of this order.”

[5] On 20 May 2015 the Appellant filed an appeal against the Decision and the Order, and indicated in the Notice of Appeal that it sought a stay of the Senior Deputy President’s Decision. Prior to the hearing of the stay, Mr Wallace sought permission to appear for the Appellant and Mr Morales sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.

[6] I heard the parties on 29 May 2015 in relation to the stay application, and made a decision to grant the stay. At the conclusion of the hearing I informed the parties of my decision and that the reasons for my decision would be published in due course. These are the reasons for my decision.

Applicable Principles and General Approach

[1] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill 4,in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Submissions

[2] The grounds of appeal are contained in the Notice of Appeal. Mr Wallace also handed up a copy of a file note outlining the Appellant’s position. The grounds of appeal can be summarised as follows:

• the hearing was conducted without the Appellant’s appearance after the Senior Deputy President withdrew the Appellant’s access to the video-conference facility previously provided and used. No opportunity was provided for the Appellant to appear which constituted a denial of natural justice;



• the Decision fails to set out the details of delays caused by the Respondent and errs in failing to consider the considerable delay caused by the Respondent in misleading the proceedings through asserting that he “had no other income during the relevant period” despite working & receiving over $7,000.00, a fact he later admitted during cross examination;



• the Decision fails to actually set out whether the order made is on a ‘party party’ basis, instead of an indemnity basis, at contemplated in paragraph [42] of the Decision;



• the costs claimed were extremely high at approximately $17,000.00 for such a short matter, represented by a junior solicitor;



• paragraph [46] of the Decision sets out zero details of the costs claimed and no assessment of the details of the costs claim was ever undertaken;



• the Senior Deputy President erred in at paragraph [47] of the Decision in simply accepting the submissions of the Respondent’s representative and denying the opportunity for the Appellant to seek ‘taxation’. He further erred by effectively undertaking the taxation process himself, or alternatively by unreasonably ordering that the Appellant’s right to taxation be quashed. This constituted an error of law;



• the Senior Deputy President erred by failing to consider how omissions may constitute vexatious behaviour in relation to the Respondent omitting certain income received in a relevant period. The effect of those omissions together with subsequent admissions by the application during cross examination caused the proceedings to be unreasonably delayed;



• The Senior Deputy President erred at law in making orders against the incorrect Trustee/Trust combinations;



• The combination of this ‘lump sum’ order for costs, in the total of over $8,000.00 plus 20 weeks compensation arguably puts the total over the statutory threshold.

[3] For the reasons above the Appellant submitted that there is an arguable case with real prospects of success on the substantial merits of the case warranting the granting of a stay.

[4] In opposing the stay application, the Respondent submitted that neither of the criteria in section 400 of the Act had been met. The Respondent also noted that he had not had an opportunity to read the Respondent’s file note that was handed up during the hearing. However, I note that the file note was simply a summary of the matters set out in detail in the Notice of Appeal. He also submitted on the issue of the Appellant not being heard in relation to costs, that paragraph [41] of the Decision referred to an email sent to the Appellant on 15 January 2015 indicating the costs claimed by the Respondent, in relation to which the Appellant made no submissions in response. The Respondent submitted that it was open to the Appellant to be heard on the issue at the point when it received the email.

Consideration

[5] I accept the Appellant’s submission that there is an arguable case in relation to paragraphs [46] and [47] of the Decision with some reasonable prospects of success in relation to the merits of the matter. The grounds of appeal outlined by the Appellant and the unusual circumstances of this case reveal a number of issues that, if successfully made out, could provide a basis for allowing an appeal against the Senior Deputy President’s Decision.

[6] In light of the above, I find that the Appellant has an arguable case with some reasonable prospects of success in respect of the question of leave to appeal and on the substantial merits of the appeal.

[7] I am satisfied that the balance of convenience favours the granting of the stay. I consider that refusing the stay would cause prejudice to the Appellant in circumstances where there was no opportunity given to it to deal with issues of quantum in relation to the costs awarded.

[8] Having considered the authority on the exercise of the Fair Work Commission’s discretion to grant a stay, I find that in all circumstances a stay order is appropriate.

[9] I note that originally this matter was listed for permission to appeal only. This matter will be set down for both permission to appeal and the appeal on 14 July 2015.

Conclusion

[10] The Decision and Order are stayed pending the hearing and determination of the Appellant’s appeal or until a further order of the Fair Work Commission. Given the nature of the Order, it is appropriate for the stay order to operate from 30 April 2015.

VICE PRESIDENT

Appearances:

P Wallace for the Appellant

V Morales for the Respondent.

Hearing details:

29 May

2015

Brisbane via telephone-link to Sydney.

 1   PR566623.

 2   David Johnson v The Trustee for the MTGI Trust T/A Macquarie Technology Group International[2015] FWC 996.

 3   [2014] FWC 7098

 4   P Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 1207.

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