Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane - [2023] FWCFB 246

[2023] FWCFB 246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision
s.611—Costs

Tilers Trade Outlet (Vic) Pty Ltd
v

Julia Cochrane

(C2023/4839)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS

SYDNEY, 12 DECEMBER 2023

Appeal against decision [2023] FWC 2071 of Commissioner Matheson at Sydney on 26 July 2023 in matter number C2023/2548 – permission to appeal refused – costs application by the respondent in the appeal.

Background

On 26 July 2023, Tilers Trade Outlet (Vic) Pty Ltd (Tilers Trade) lodged an appeal against a decision made by Commissioner Matheson on 26 July 2023[1] which concerned a jurisdictional objection raised by Tilers Trade in respect of an application made by Ms Julia Cochrane pursuant to s 365 of the Fair Work Act 2009 (Cth) (FW Act). Ms Cochrane alleged in her application that she was dismissed from employment with Tilers Trade in contravention of ss 340, 343, 344 and 351 of the FW Act. Tilers Trade contended at first instance that the Commission had no jurisdiction to hear the application as Ms Cochrane had failed to plead material facts in support of her application. The Commissioner dismissed this objection and allowed Ms Cochrane’s application to proceed under s 368 of the FW Act.

Both Tilers Trade and Ms Cochrane were granted permission for legal representation in the appeal pursuant to s 596(2) of the FW Act. In Tilers Trade’s notice of appeal, it contended in varying ways that Ms Cochrane did not submit a competent application in satisfaction of s 365(b) of the FW Act. In a decision issued on 29 September 2023, we refused permission to appeal.[2] In our appeal decision, we considered that all that is required for satisfaction of the criterion in s 365(b) of the FW Act is that an allegation be made that a person was dismissed in contravention of Part 3-1, and that the Commission is not required to undertake an assessment as to whether there have been facts pleaded which might reasonably support that allegation.[3] Therefore, we considered, as did the Commissioner at first instance, that Ms Cochrane’s application was valid.[4] We subsequently concluded that Tilers Trade had not advanced a reasonably arguable case that the Commissioner’s decision was attended by appealable error.[5]

On 11 October 2023, Ms Cochrane applied for her costs in respect of the appeal pursuant to s 611 of the FW Act. This decision is concerned with that application. Section 611 of the FW Act provides:

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a)the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to 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.

Continue reading Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane

Details

AGLC: Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane [2023] FWCFB 246
Case: [2023] FWCFB 246
Decision Date: 12 DECEMBER 2023

CaseChat Overview and Summary

Tilers Trade Outlet (Vic) Pty Ltd lodged an appeal against a decision of Commissioner Matheson which concerned an application made by Ms Julia Cochrane under s 365 of the Fair Work Act 2009 (Cth). Ms Cochrane alleged she was dismissed from her employment with Tilers Trade in contravention of ss 340, 343, 344 and 351 of the Act. Tilers Trade contended at first instance that the Commission had no jurisdiction to hear the application as Ms Cochrane had failed to plead material facts in support of her application. The Commissioner dismissed the objection and allowed Ms Cochrane’s application to proceed. Tilers Trade appealed this decision, arguing that Ms Cochrane did not submit a competent application in satisfaction of s 365(b) of the Act. The Full Bench refused permission to appeal, finding that Ms Cochrane’s application was valid. Ms Cochrane subsequently applied for her costs in respect of the appeal pursuant to s 611 of the Act.

The Full Bench considered Ms Cochrane’s application under both s 611(2)(a) and s 611(2)(b) of the Act. Section 611(2)(a) permits an order for costs if the Full Bench is satisfied that the first person made the application vexatiously or without reasonable cause. Section 611(2)(b) permits an order for costs if the Full Bench is satisfied that it should have been reasonably apparent to the first person that the application had no reasonable prospect of success. The Full Bench found that Tilers Trade’s appeal was made without reasonable cause because the grounds of appeal and the grounds upon which permission to appeal was sought were untenable. The Full Bench found that it should exercise its discretion to make an award of costs in Ms Cochrane’s favour, as she was put to unnecessary expense in responding to the appeal.

The Full Bench considered the costs claimed by Ms Cochrane and found that some of the costs were not reasonably incurred. The Full Bench awarded costs of $3,344.00 in Ms Cochrane’s favour, representing costs for the appeal hearing and preparation, perusing of documents, and preparation of necessary documents. The Full Bench dismissed the costs claimed for the first-instance hearing as they were claimed out of time. The Full Bench made an order to give effect to this decision.

Orders