Thomas v Trustee for the Blakai Trust (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Thomas v Trustee for the Blakai Trust (No 2) [2023] FedCFamC2G 802  

File number: ADG 300 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 1 September 2023
Catchwords: INDUSTRIAL LAW – Application for costs following final hearing – general protection proceedings pursuant to the provisions of the Fair Work Act 2009 – whether the refusal to accept an offer to settlement amounts to an unreasonable act or omission – whether the applicant’s conduct of the proceedings was unreasonable – matters to be considered  
Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of AustraliaAct (Cth)

ss 5, 190, 191, 192

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.02

J D Heydon, Cross on Evidence (Lexis Nexis, 12th ed, 2020)  
Cases cited:

Australian Workers Union v Leighton Contractors Pty Ltd & Ors(No2) [2013] FCAFC 23

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574

Johnson v Monti-Haitsma Enterprises (No 2) [2014] FCA 1020

Kanan v Australian Postal & Telecommunications Union [1992] FCA 539

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Ryan v Primesafe [2015] FCA 8

Saxena v PPF Asset Management Ltd [2011] FCA 395

Spotless Services Australia Ltd v Deputy President March [2004] FCAFC 155

Division: Division 2 General Federal Law
Number of paragraphs: 91
Date of hearing: 9 August 2023
Place: Adelaide
Counsel for the Applicant: Mr Blewett
Solicitor for the Applicant: Wearing & Blairs Pty Ltd
Counsel for the Respondents: Mr Manual
Solicitor for the Respondents: RSA Law

ORDERS

ADG 300 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KELLY THOMAS

Applicant
AND:

THE TRUSTEE FOR THE BLAKAI TRUST

First Respondent

WARREN RANKINE

Second Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

1 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 5 December 2022 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BROWN:

INTRODUCTION

  1. These reasons for judgment relate to an application for costs, by the successful party, in a general protection proceeding, brought pursuant to the provisions of the Fair Work Act 2009 (Cth).[1]

    [1]  Hereinafter referred to “the FWA” or “the Act”.

  2. Warren Rankine is the owner/operator of a small business, The Trademan, which between 2005 and 10 March 2020, was focussed on installing carports and verandahs for commercial and residential properties.  It is he who seeks his costs.  Kelly Thomas…

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Details
Case
[2023] FedCFamC2G 802
Decision Date

CaseChat Overview and Summary

The case of Thomas v Trustee for the Blakai Trust (No 2) involved Ms. Thomas, the applicant, and Mr. Rankine, the respondent, who had previously been friends and fell out over differing views on the JobKeeper scheme. The central dispute was whether Mr. Rankine had taken adverse action against Ms. Thomas by not applying for the JobKeeper allowance on her behalf, in breach of a workplace right held by her under the Fair Work Act. The proceedings were emotionally charged and hard-fought, with both parties feeling aggrieved by the other’s actions around March/April 2020. The court was tasked with determining whether Ms. Thomas's conduct was reasonable given the state of affairs at the time the offer was made, rather than with the benefit of hindsight.

The primary legal issue the court had to address was whether Ms. Thomas’s conduct was reasonable, considering the state of affairs at the time of the offer, without the benefit of hindsight. This involved interpreting the Fair Work Act and assessing the reasonableness of Ms. Thomas's actions in light of the COVID-19 pandemic and the subsequent introduction of the JobKeeper scheme. Additionally, the court had to evaluate whether there was an adverse action taken by Mr. Rankine that breached Ms. Thomas's workplace rights. The court also needed to consider the broader context of the pandemic and the changes in the JobKeeper scheme, which affected public understanding and implementation.

In resolving the dispute, the court found that the reasonableness of Ms. Thomas’s conduct was to be judged based on the state of affairs at the time the offer was made, rather than with the benefit of hindsight. The court emphasized the lack of understanding in the community regarding the JobKeeper scheme at the time, acknowledging its hasty implementation and subsequent changes. The court concluded that Mr. Rankine had not taken adverse action against Ms. Thomas in breach of her workplace rights. The decision took into account the unprecedented nature of the COVID-19 emergency and the resulting widespread confusion regarding the JobKeeper scheme.

As a result of the court’s decision, the application was dismissed. The court found no evidence of adverse action taken by Mr. Rankine and determined that Ms. Thomas's conduct was reasonable in the context of the pandemic and the evolving nature of the JobKeeper scheme. The court's ruling underscored the importance of assessing actions based on the information and circumstances available at the time, rather than with the clarity that hindsight provides.

Orders

Orders of the court

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Background

Background to the litigation

Essentially, she contends that the reasonableness or otherwise of her conduct in the case must be judged by reference to the state of affairs at the commencement of the case and the stage at which the offer was made, not with the benefit of hindsight, after the conclusion of the case, when judgment has been delivered.BACKGROUND The date of 10 March 2020 is relevant to the substantive proceedings.[2] Shortly afterward this date, Mr Rankine closed the Trademan office, where Ms Thomas worked. The date coincides with what most will recollect was the commencement of the state of emergency arising from the COVID-19 pandemic in Australia generally and South Australia specifically. [2] Thomas v Blakai Trust [2022] FedCFamC2G 551, hereinafter referred to as “the principle proceedings”. Between March 2017 and 10 March 2020, Ms Thomas, the applicant in the principle proceedings, was employed, on an infrequent basis, by Mr Rankine to provide administrative support, at The Trademan’s office, particularly in respect of answering potential customer enquiries of the business. There was no dispute between the parties that Ms Thomas worked flexible hours and was able to decide when she would attend the office. The evidence available to me indicated that over the period of approximately 3 years, during which she held her position, Ms Thomas’ hours became increasingly sporadic and less in number. The controversy, which the court was called upon to resolve between the parties, was whether Mr Rankine had taken adverse action, against Ms Thomas, in breach of a workplace right which she held, as a consequence of the provision of the FWA, by failing to apply for the JobKeeper allowance, on her behalf. As is well known, JobKeeper was a Commonwealth funded scheme initiated in response to the Covid-19 emergency. It was directed towards assisting both employers and employees, including casual ones, through what the government anticipated would be an economic crisis, in Australia at the time, as a consequence of the imposition of widespread lockdowns, in the community, to prevent the spread of the disease. Ms Thomas commenced her proceedings in early-September of 2020. She was represented by the same firm of solicitors throughout. Mr Rankine responded to the application in early-December of 2020. He too was represented by the same firm of solicitors throughout. The proceedings, in my impression, were emotionally laden and hard fought, with each of the parties feeling hard done by as a consequence of his/her perceptions of the machinations of the other in and around March/April of 2020 and afterwards. This state of affairs was not helped by the fact that Ms Thomas and Mr Rankine had previously been friends and had fallen out over their differing views as to what the JobKeeper scheme entailed. In addition, neither could be considered a person of significant means and the institution of proceedings and their defence constituted a considerable impost for each of them. As I indicated in the judgment published in the principle proceedings, at the time of the parties’ falling out, in my view, there was a widespread lack of understanding, in the community as a whole, as to what JobKeeper entailed. In my view, again as I indicated in the judgment, the scheme was, for reasons understandable at the time, largely related to the unprecedented nature of the emergency involved, hastily implemented. It was also subject to a number of changes, in its early iterations.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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