NSW Breaches of other legislation in a Fairwork Division claim

[Taco Cat]

Sometimes in Federal Circuit court cases under the Fairwork division, the applicant also makes a claim for a breach of other legislation, such as the Australian Consumer Law.

If the applicant loses the consumer law claim, are costs still under the rules of the Fairwork Act? That is, the parties bear their own costs unless proceedings were vexatious etc?

 

[Rod]

No, and no.

Costs of each claim, within the same proceeding, will usual be dealt with under the Act the claim relies on, not the whole proceeding.

 

[Taco Cat]

This is the only case I’ve looked at, but it would appear to state that the ACL claim was subject to the same rules as the Fairwork claim:

Paragraphs 37, 39, 41, 42, 43. (Apologies, can’t format the paragraphs properly).

King v PIA Mortgage Services Pty Ltd & Ors [2018] FCCA 3426 (12 December 2018)​

Issue of Costs

37 The principles relating to costs are identified in s 570 of the Act which relevantly provides as follows:

• (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
• Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
• (2) The party may be ordered to pay the costs only if:
  • (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
  • (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

…

1. Section 570 of the Act applies to the proceedings as a whole and accordingly, notwithstanding that the respondents have succeeded on other issues, the respondents are not entitled to an order for costs unless the requirements of s 570(2) of the Act are satisfied.

…

1. The Court is not satisfied that the requirements of s 570(2) of the Act are made out by the respondents insofar as the respondents contend an order for costs should be made against the applicant.
2. In respect of the ACL claims, for the reasons already given, the ACL claims falls within the same application of the principle identified in s 570 of the Act.
3. The Court accordingly finds that no order should be made in respect of costs in favour of either party. For these reasons, the Court makes the above orders.

 

[Rod]

Not sure where you obtained the text, but I couldn't see it in the judgment.

The other thing to note is this case was appealed to the FCAFC (twice). I haven't done a full analysis but at first reading the ACL was an adjunct to his s.340 GP claims and related to his employment and as such may be considered to be covered under s.570 FWA.

There may be a different result if the ACL was unrelated to employment.

 

[Taco Cat]

King v PIA Mortgage Services Pty Ltd & Ors (No.2) [2019] FCCA 1460 (30 May 2019)​

Apologies, this is the correct reference for the orders. (Paragraphs 37-43).

King v PIA Mortgage Services Pty Ltd & Ors (No.2) [2019] FCCA 1460 (30 May 2019)

 

[Taco Cat]

Not sure where you obtained the text, but I couldn't see it in the judgment.

The other thing to note is this case was appealed to the FCAFC (twice). I haven't done a full analysis but at first reading the ACL was an adjunct to his s.340 GP claims and related to his employment and as such may be considered to be covered under s.570 FWA.

There may be a different result if the ACL was unrelated to employment.

Yes, so if the ACL claim is related to the Fairwork claim then presumably it is covered by 570. Nowhere is this specifically addressed in the original court decision as far as I can find.

 

[Rod]

If your ACL claim is related to employment it MAY be a no costs decision.