Birner v Aircraft Turnaround Engineering Pty Ltd

1. There be no costs ordered in the appeal in QUD 241 of 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BACKGROUND 1 On 11 July 2019, I delivered judgment in the appeal in Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085. The background facts and reasons for my decision are set out in detail in that judgment. In summary, I dismissed the appeal, finding that: The decision of the primary Judge that Mr Birner was a casual employee was correct; and None of the appellant's grounds of appeal were substantiated. 2 On 18 July 2019, the solicitors for the respondent wrote to my Associates enquiring whether I would be prepared to hear the parties on the issue of costs in respect of the appeal. Both parties consented to the matter being heard on the papers. On 1 August 2019, I made the following orders: 2. By 4.00 pm on 19 August 2019, the Respondent file and serve any additional written submissions in respect of and incidental to this appeal. 3. By 4.00 pm on 9 September 2019, the Appellant file and serve any additional written submissions strictly in response to the Respondent's submissions referred to in Order 2 of these Orders. … 5. The matter be determined on the papers. 3 In submissions dated 19 August 2019, the respondent submitted, in summary: The appeal was commenced and prosecuted to finality without reasonable cause. The primary Judge's analysis and conclusions were unimpeachable. The primary Judge's findings have withstood critical scrutiny, even in hindsight and in light of the Full Court's reasoning in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311. The appellant's challenges on appeal were directed at credit findings, involved points not taken at first instance, and raised purely technical points which even if established would not require or justify an appellate response. The appellant unnecessarily persisted in pressing an allegation of scandalous wrongdoing. The appellant raised no reasonable or sensible argument that the orders under appeal involved or were tainted by error requiring appellant correction. The appellant was not justified in tenaciously pursuing what was, in effect, a second opinion from the Court. The respondent was unreasonably put to the cost of meeting the appeal, and of defending the reasoning and orders made by the Court below. The appellant should be required to pay the respondent's costs of and incidental to the appeal to be assessed on the standard, or party and party, basis. 4 The appellant filed submissions on 6 September 2019. In these submissions the appellant addresses a wide range of matters including further arguments in relation to the merits of the substantive appeal. I consider that the appellant's submissions were not strictly in response to the respondent's submissions. However, in light of the appellant's position as a litigant in person, I am willing to accept these submissions to the extent that they address the issue of costs. In relation to the issue of costs, the appellant submitted, in summary: The appellant opposes the application for costs and considers that the application should be dismissed. If costs are to be ordered, they should be ordered on the event-based scale contained in Sch 1 of the Rules. Section 570 of the Fair Work Act 2009 (Cth) lies within Ch 4, Pt 4-2 of that Act. The Court should consider a number of policies and principles when considering s 570(2), including: a. The policy and purpose of the section is to free parties from the risk of having to pay their opponent's costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause. b. A person will rarely be ordered to pay the costs of a proceeding. c. It is not necessary to prove that there are exceptional circumstances warranting the making of such an order. d. The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: Australian Workers Union v Leighton Contractors Pty Ltd (No. 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7]; Gonzalez-Barbosa v Go to Court Franchising Pty Ltd (No 2) [2017] FCCA 910. The bringing and continuing of proceedings in which allegations of contravention of the Fair Work Act are made ought not to be discouraged. Employees ought not to be discouraged from action against employers, by the prospect of costs orders, especially where they already feel aggrieved by the employer. The relevant consideration is whether the proceedings had reasonable prospect of success at the time it was instituted. At this time the appellant considered that his case had merit. This is evidenced by the dismissal of the respondent's application for costs in the Federal Circuit Court. Costs should not be awarded as the appellant's case had merit.