Twomey v Que 5 Pty Ltd (No 2) - [2023] FCA 1481

FEDERAL COURT OF AUSTRALIA
Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481

File number: WAD 137 of 2023

Judgment of: JACKSON J

Date of judgment: 28 November 2023

Catchwords: COSTS - application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) - proceedings instituted without reasonable cause - costs awarded

Legislation:
Fair Work Act 2009 (Cth) ss 23, 382, 383, 384, 570

Federal Court Rules 2011 (Cth) Schedule 3

Cases cited:
Australian Workers Union v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23; (2012) 232 FCR 428

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470

Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322

Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Twomey v Que 5 Pty Ltd [2023] FCA 1155

Division: Fair Work Division

Registry: Western Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 15

Date of last submissions: 10 October 2023 (first respondent)

Date of hearing: Determined on the papers

Counsel for the Applicant: The applicant is self‑represented

Counsel for the First Respondent: Mr M Baldwin

Solicitor for the First Respondent: Baldwin Legal

Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

WAD 137 of 2023

BETWEEN:
RHYS JUNIOR HUIRAU TWOMEY

Applicant

AND:
QUE 5 PTY LTD (ACN 109 339 924)

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

28 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The applicant must pay the first respondent's costs of the proceeding, fixed in the sum of $8,000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
JACKSON J:

On 27 September 2023 I dismissed an application by Mr Twomey for judicial review of a decision of the Fair Work Commission (FWC) dismissing his application for unfair dismissal, and a subsequent decision of the Full Bench of the FWC refusing Mr Twomey permission to appeal: Twomey v Que 5 Pty Ltd [2023] FCA 1155 (Twomey (No 1)).
Mr Twomey claimed before the FWC that he was unfairly dismissed by the respondent, Que 5 Pty Ltd. The FWC at first instance dismissed Mr Twomey's application because, having been employed by Que 5 for less than a year, and Que 5 being a small business within the meaning of s 23 of the Fair Work Act 2009 (Cth) (FWA), he did not meet the minimum employment period to be a person who was protected from unfair dismissal under s 382 and s 383. Mr Twomey applied to the Full Bench of the FWC for permission to appeal this decision, which was refused. Mr Twomey then applied for judicial review in this Court.
At the judicial review…

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: [2023] FCA 1481
Decision Date: 28 November 2023

CaseChat Overview and Summary

The case of Twomey v Que 5 Pty Ltd (No 2) involved an application for costs under section 570 of the Fair Work Act 2009, brought by the respondent, Que 5 Pty Ltd. The applicant, Twomey, had initiated proceedings against Que 5 Pty Ltd, which were subsequently dismissed by the Federal Circuit Court. Que 5 Pty Ltd applied to the Federal Court for costs, arguing that the proceedings were instituted without reasonable cause.

The primary legal issue for the court was whether the applicant's decision to institute proceedings was unreasonable, thereby justifying an award of costs under the Fair Work Act. The court considered whether the applicant had a reasonable belief, based on evidence, that there was a genuine prospect of success in the proceedings. The court also assessed the strength of the applicant's case, the availability of alternative remedies, and the overall proportionality of the application.

The court determined that the applicant's decision to proceed was unreasonable, as there was insufficient evidence to support the claim. The court found that the applicant had not conducted a proper investigation and had failed to consider alternative dispute resolution methods. Consequently, the court awarded costs to Que 5 Pty Ltd, fixed at $8,000, reflecting the unreasonableness of the application. This decision underscores the importance of conducting a thorough investigation and considering all available options before instituting legal proceedings.

Orders

Orders of the court

1. The applicant must pay the first respondent's costs of the proceeding, fixed in the sum of $8,000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	WAD 137 of 2023
Judgment of:	JACKSON J
Date of judgment:	28 November 2023
Catchwords:	COSTS - application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) - proceedings instituted without reasonable cause - costs awarded
Legislation:	Fair Work Act 2009 (Cth) ss 23, 382, 383, 384, 570 Federal Court Rules 2011 (Cth) Schedule 3
Cases cited:	Australian Workers Union v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23; (2012) 232 FCR 428 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322 Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 Twomey v Que 5 Pty Ltd [2023] FCA 1155
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	15
Date of last submissions:	10 October 2023 (first respondent)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	The applicant is self‑represented
Counsel for the First Respondent:	Mr M Baldwin
Solicitor for the First Respondent:	Baldwin Legal
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	28 NOVEMBER 2023