Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 695

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 695

The Court dismissed the amended interlocutory application because Cigarette & Gift Warehouse Pty Ltd did not show that it was inherently likely that s 570(2)(b) of the Fair Work Act 2009 (Cth) would permit a prospective costs order against Mr Whelan so as to justify security for costs, and did not show the requirements for an exceptional freezing order. The evidence explained the sale of the Townsville properties and did not establish a danger, beyond suspicion, that a prospective judgment would be unsatisfied through asset dissipation. The defended and unresolved cross-claim was better assessed by the trial judge, and any judgment on it might be set off against any judgment in Mr...

Jurisdiction
Australia
Judgment Date
26 April 2017
Procedural Posture
Fair Work Proceeding With Competition and Consumer Act Claim and Cross Claim; Amended Interlocutory Application for Security for Costs and Freezing Order / Trial Commenced and Adjourned Part Heard; Amended Interlocutory Application Heard and Dismissed
Outcome
Amended interlocutory application dismissed; costs awarded to Mr Whelan on an ordinary party and party basis.
Legal Topics
['freezing Orders Under R 7.32 Federal Court Rules 2011 (cth)' 'security for Costs' 'fair Work Act Costs Limitation' 'unreasonable Act or Omission Under S 570(2)(b)' 'adverse Action Claim Under S 340 of the Fair Work Act 2009 (cth)' 'misleading or Deceptive Representations' 'cross Claim for Alleged Loan']
['practice and Procedure' 'industrial Law' 'employment Law' 'costs'] ['freezing Orders Under R 7.32 Federal Court Rules 2011 (cth)' 'security for Costs' 'fair Work Act Costs Limitation' 'unreasonable Act or Omission Under S 570(2)(b)' 'adverse Action Claim Under S 340 of the Fair Work Act 2009 (cth)' 'misleading or Deceptive Representations' 'cross Claim for Alleged Loan']

Case Brief

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Procedural Posture

Fair Work Proceeding With Competition and Consumer Act Claim and Cross Claim; Amended Interlocutory Application for Security for Costs and Freezing Order / Trial Commenced and Adjourned Part Heard; Amended Interlocutory Application Heard and Dismissed

Legal Issues

  1. 1 ['Whether Cigarette & Gift Warehouse Pty Ltd should obtain security for prospective costs against Mr Whelan in proceedings including a Fair Work Act claim.' 'Whether s 570 of the Fair Work Act 2009 (Cth) made it inherently likely that a costs order would be made against Mr Whelan because of an unreasonable act or omission.' 'Whether Cigarette & Gift Warehouse Pty Ltd should obtain a freezing order in respect of the judgment it apprehended on its cross-claim.' "Whether Mr Whelan's sale of Townsville properties demonstrated a danger that a prospective judgment would be wholly or partly unsatisfied." 'Whether costs of the amended interlocutory application should be ordered against Cigarette & Gift Warehouse Pty Ltd and on what basis.']

Ratio Decidendi

The Court dismissed the amended interlocutory application because Cigarette & Gift Warehouse Pty Ltd did not show that it was inherently likely that s 570(2)(b) of the Fair Work Act 2009 (Cth) would permit a prospective costs order against Mr Whelan so as to justify security for costs, and did not show the requirements for an exceptional freezing order. The evidence explained the sale of the Townsville properties and did not establish a danger, beyond suspicion, that a prospective judgment would be unsatisfied through asset dissipation. The defended and unresolved cross-claim was better assessed by the trial judge, and any judgment on it might be set off against any judgment in Mr...

Court Disposition

Amended interlocutory application dismissed; costs awarded to Mr Whelan on an ordinary party and party basis.

Orders

  • ['The amended interlocutory application be dismissed.' 'The applicants on the application (respondents in the substantive proceeding) pay the costs of the respondent to that application (applicant in the substantive proceeding) to be taxed, if not agreed.']