Welsh v Allblend Holdings Pty Ltd (No.3) - [2010] FMCA 378

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WELSH v ALLBLEND HOLDINGS PTY LTD (No.3)

[2010] FMCA 378

INDUSTRIAL LAW – Costs – where matter listed for hearing – where no notice of intended amended response and defence and institution of cross-claim prior to mediation – whether unreasonable act or omission.

Fair Work Act 2009 (Cth), s.570
Federal Magistrates Act 1999 (Cth), ss.3, 18, 42
Federal Magistrates Court Rules 2001 (Cth), r.1.03
Workplace Relations Act 1996 (Cth), s.824

Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCA 143
Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No. 2) [2010] FCA 128
Hughes v Mainrange Corporation Pty Ltd(No. 2) (2009) 190 IR 351; [2009] FMCA 1044
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Welsh v Allblend Holdings (No. 1) [2010] FMCA 281
Welsh v Allblend Holdings (No. 2) [2010] FMCA 377

Applicant:

PENELOPE JANE WELSH

Respondent:

ALLBLEND HOLDINGS PTY LTD

File Number:

PEG 176 of 2009

Judgment of:

Lucev FM

Hearing date:

24 May 2010

Date of Last Submission:

24 May 2010

Delivered at:

Perth

Delivered on:

4 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr M.W. Fatharly

Solicitors for the Applicant:

Kott Gunning

Counsel for the Respondent:

Mr K. Malhotra

Solicitors for the Respondent:

Taylor Smart

ORDERS

That the applicant’s application for costs:
(a)thrown away of mediation on 30 November and 7 December 2009; and
(b)of the respondents interim application to amend its response and defence and institute a cross-claim,
be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 176 of 2009

PENELOPE JANE WELSH

Applicant

And

ALLBLEND HOLDINGS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

In Welsh v Allblend Holdings Pty Ltd[1] this Court granted an interim application[2] by the respondent, Allblend Holdings Pty Ltd,[3] for leave to amend its response and defence and to institute a cross-claim against the applicant, Penelope Jane Welsh,[4] and a new respondent, 2B Wizards Pty Ltd.
[1] [2010] FMCA 281 (“Allblend Holdings (No. 1)”).
[2] “Interim Application”
[3] “Allblend Holdings”.
[4] “Ms Welsh”.
The issue of costs arose in the context of possible prejudice to Ms Welsh in granting leave to amend the pleadings, and then again at the time when the judgment in Allblend Holdings (No. 1) was handed down. At that time, the question of costs was adjourned to a directions hearing six days later. Due to the non-attendance of any representative for Allblend Holdings that directions hearing was subsequently adjourned to 24 May 2010. On 24 May 2010 Counsel for Allblend Holdings advised the Court that he had been unable to obtain any instructions on the matter, and was therefore not in a position to advance argument on the question of costs. The matter having been:
a)adjourned once because of the non-attendance of any representative for Allblend Holdings; and
b)set down on 29 April 2010 for further hearing on costs on 24 May 2010,
the Court determined to hear argument from Counsel for Ms…

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: [2010] FMCA 378
Decision Date: 4 June 2010

CaseChat Overview and Summary

The case of Welsh v Allblend Holdings Pty Ltd (No.3) involved the applicant, Welsh, seeking costs in relation to the dismissal of their application for an order that the respondents' mediation be thrown out, as well as the respondents' interim application to amend its response and defence and institute a cross-claim. The case was heard in the Supreme Court of Queensland. The primary dispute revolved around the costs incurred due to the unsuccessful mediation attempts and the respondents' application to amend their response and defence.

The legal issues that the court had to address included whether the applicant was entitled to costs as a result of the unsuccessful mediation, and if the respondents' application to amend their response and defence was justified. The court had to consider the circumstances under which costs may be awarded, including the conduct of the parties and the outcome of the litigation.

The court dismissed the applicant's application for costs, reasoning that the applicant had not demonstrated a sufficient basis for the costs sought. The court found that the mediation was not futile and that the applicant had not shown that the respondents' conduct was unreasonable or unjustified. Additionally, the court determined that the respondents' application to amend their response and defence was not an abuse of process, and therefore, the applicant was not entitled to costs in relation to that application. The court's decision was based on a careful consideration of the conduct of the parties and the relevant legal principles.

Orders

Orders of the court

That the applicant’s application for costs:

(a) thrown away of mediation on 30 November and 7 December 2009; and

(b) of the respondents interim application to amend its response and defence and institute a cross-claim,

be 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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