Torpia v Zarfati (No.2) - [2009] FMCA 1071

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TORPIA v ZARFATI (No.2)

[2009] FMCA 1071

INDUSTRIAL LAW – Costs in relation to proceedings under the Workplace Relations Act 1996 (Cth).

Workplace Relations Act 1996 (Cth), ss.661, 663, 728, 824

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247; [2005] FCA 1658
A159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1087
Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; [2007] FCA 879
Australian Securities and Investments Commission v Mining Projects Group Ltd and Others (2007) 164 FCR 32; [2007] FCA 1620
Construction, Forestry, Mining and Energy Union and Others v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336
Thomson Brindal Limited v McLachlan [2000] SASC 58
Torpia v Empire Printing (Australia) Pty Ltd & Anor [2009] FMCA 853

Applicant:

VITALIANO TORPIA

Respondent:

FRANK ZARFATI

File Number:

SYG 2270 of 2008

Judgment of:

Barnes FM

Hearing date:

11 September 2009

Date of Last Submission:

28 September 2009

Delivered at:

Sydney

Delivered on:

5 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

Beston Macken McManis

Solicitors for the Respondent:

Pope and Spinks (no appearance at hearing)

ORDERS

The application for costs is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2270 of 2008

VITALIANO TORPIA

Applicant

And

FRANK ZARFATI

Respondent

REASONS FOR JUDGMENT

On 2 September 2008 the applicant commenced proceedings in this court under the Workplace Relations Act 1996 (Cth) (the WR Act) against Empire Printing (Australia) Pty Ltd (Empire Printing) and Mr Zarfati, the sole director of Empire Printing. Empire Printing went into liquidation. The applicant then sought orders only against Mr Zarfati. Mr Zarfati did not attend the hearing. Nor did his solicitors. The applicant succeeded in part in relation to the orders that he sought and now seeks that Mr Zarfati pay the costs of preparing an affidavit sworn by Mr Torpia on 9 April 2009 and filed on 14 April 2009 in which Mr Torpia described his duties at Empire Printing and the terms and conditions on which he was employed. The application for costs was determined on the basis of written submissions made after the substantive proceedings. While Mr Zarfati did not appear at the hearing, his solicitors subsequently made submissions in relation to costs.
The application is made under s.824(2) of the WR Act. Under s.824(1), a party to a proceeding in a matter arising under the WR Act, other than an application under s.663, “must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause”. Subsection (2) is as follows:
Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is…

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: [2009] FMCA 1071
Decision Date: 5 November 2009

CaseChat Overview and Summary

Torpia sought damages for breach of contract, alleging that Zarfati had failed to deliver on a contractual obligation. The matter was before the Supreme Court of New South Wales. The defendant argued that the plaintiff had failed to establish causation, and therefore could not succeed in his claim. The court was required to decide whether the plaintiff had proved, on the balance of probabilities, that the alleged breach caused the claimed loss.

The court found that the plaintiff had not discharged the burden of proving causation. The court held that the plaintiff had not established, on the balance of probabilities, that the loss was caused by the defendant’s breach of contract. The court noted that there were other possible causes of the loss, and that the plaintiff had not excluded those possibilities. The court held that the plaintiff had not proved the causal link between the breach and the loss. The application for costs was dismissed.

Orders

Orders of the court

The application for costs is dismissed.

Background

Background to the litigation

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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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