FEDERAL COURT OF AUSTRALIA

Reihana v Mastercare Highrise Cleaning Services Pty Ltd (No 2) [2014] FCA 367

Citation:	Reihana v Mastercare Highrise Cleaning Services Pty Ltd (No 2) [2014] FCA 367	
		
Parties:	TONI COLIN REIHANA v MASTERCARE HIGHRISE CLEANING SERVICES PTY LTD and FAIR WORK AUSTRALIA	
		
File number:	QUD 570 of 2013	
		
Judge:	COLLIER J	
		
Date of judgment:	8 April 2014	
		
Catchwords:	COSTS – costs incurred in respect of matter arising under Fair Work Act 2009 (Cth) – s 570 of Fair Work Act – whether unreasonable act of applicant caused respondent to incur costs	
		
Legislation:	Fair Work Act 2009 (Cth) s 570 	
		
Cases cited:	Kanan v Australian Postal and Telecommunications union (1992) 43 IR 257	
		
Date of hearing:	8 April 2014	
		
Place:	Brisbane	
		
Division:	FAIR WORK DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	5	
		
Counsel for the Applicant:	The Applicant appeared in person	
		
Solicitor for the First and Second Respondents:	Mr G Wright of TAS Legal Pty Ltd	

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
FAIR WORK DIVISION	QUD 570 of 2013	
 
BETWEEN:	TONI COLIN REIHANA
Applicant

AND:	MASTERCARE HIGHRISE CLEANING SERVICES PTY LTD
First Respondent

FAIR WORK AUSTRALIA
Second Respondent

JUDGE:	COLLIER J	
DATE OF ORDER:	8 APRIL 2014	
WHERE MADE:	BRISBANE	

THE COURT ORDERS THAT:

1.	The oral application made by the first respondent on 8 April 2014 for costs be dismissed. 

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

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
FAIR WORK DIVISION	QUD 570 of 2013	
 
BETWEEN:	TONI COLIN REIHANA
Applicant

AND:	MASTERCARE HIGHRISE CLEANING SERVICES PTY LTD
First Respondent

FAIR WORK AUSTRALIA
Second Respondent

JUDGE:	COLLIER J	
DATE:	8 APRIL 2014	
PLACE:	BRISBANE	

REASONS FOR JUDGMENT
1		In Court this morning the first respondent, Mastercare Highrise Cleaning Services Pty Ltd (“Mastercare”), made an oral application for costs in respect of the judgment I have just delivered in Reihana v Mastercare Highrise Cleaning Services Proprietary Limited (2014) FCA 353. An order for costs in Fair Work matters is unusual, and limited to circumstances contemplated by s 570 of the Fair Work Act 2009 (Cth) (“the Act”).
2		Section 570 of the Act provides:
Costs only if proceedings instituted vexatiously etc.

(1)	A party to proceedings (including on 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) of 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.

3		Mr Wright for Mastercare, in court this morning filed submissions and made the point that the first respondent seeks costs only from 17 February 2014, when an offer was made by the first respondent to Mr Reihana to settle the proceedings for an amount in the sum of $5,177.80. Mastercare essentially appears to be relying upon s 570(2)(b), namely, that Mr Reihana has acted unreasonably in refusing to settle on that date. Mr Reihana has made submissions to the effect that:
·	at the time he rejected Mastercare’s settlement offer he had spent a great deal of time in preparing his submissions;
·	the offer of the first respondent was virtually on the eve of the hearing, and was late; and
·	in his submission he would have been entitled to a lot more money had he been successful.
4		In my view, the oral application for costs should be dismissed. I am not satisfied that Mr Reihana acted unreasonably in refusing the offer to settle. There is ample authority to the effect that, among other things, s 570 of the Act is invoked if there are no substantial prospects of success. Authority for that is, for example, Kanan v Australian Postal and Telecommunications union (1992) 43 IR 257. While the first respondent does not claim that Mr Reihana has acted vexatiously, but rather that he acted unreasonably in refusing to settle, in the circumstances of this case, where, in my view, Mr Reihana did have some prospects of success in relation to this substantive application, I am not satisfied that it was unreasonable for him to have refused an offer of settlement on 17 February 2014. In those circumstances, Mastercare’s oral application is refused.
5		Finally I note that that Mr Reihana has made a submission to the effect that he was considering making a cross-application for his own costs in this proceeding. It is clear that Mr Reihana is not entitled to any costs arising out of this matter because:
·	He has been entirely unsuccessful in respect of his application in this Court, and as a general proposition any costs incurred follow the event.
·	He is a litigant in person, and has not incurred any legal costs for which he could seek reimbursement.
·	In any event, costs in respect of matters arising under the Act are payable in only very limited circumstances. There is no material before me to suggest that an act or omission of Mastercare caused Mr Reihana to incur costs (s 570(2)(b)), or that Mastercare unreasonably refused to participate in a matter before the Fair Work Commission (s 570(2)(c)) (particularly in light of the fact that the proceeding before the Court was review of a decision of the Fair Work Commission in which both parties participated).

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.	

Associate:

Dated:	10 April 2014