Jamsek v ZG Operations Australia Pty Ltd

1. Order 6 of the orders dated 16 July 2020 be revoked. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 16 July 2020 the Full Court allowed the appeal and ordered the Respondents ('ZG') to pay Mr Jamsek's costs: Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119. At the time the Court did not advert to s 570 of the Fair Work Act 2009 (Cth). It provides: 570 Costs only if proceedings instituted vexatiously etc. (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. 2 Mr Jamsek submits that s 570(2)(b) is engaged because ZG's defence of the appeal was 'unreasonable'. It was unreasonable because on the facts found at trial there could be no serious argument that Mr Jamsek never had any capacity to generate goodwill; had no real independence or control over his work; could not have used his truck to serve others; was a representative of the Respondents; and had never worked for anyone else. 3 The primary judge thought that there was no employment relationship but the Full Court took a different view. We do not accept that ZG's defence of the appeal was unrealistic, as Mr Jamsek submitted. This area is a notoriously difficult area upon which minds may legitimately differ. We do not accept therefore that the exception in s 570(2)(b) is engaged. 4 Accordingly, the costs order will be revoked. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Wigney and Anderson.