Ryan v Primesafe [2015] FCA 8

Ryan v Primesafe [2015] FCA 8

The third respondent incurred legal costs because the applicant, on his solicitor's advice, instituted and maintained proceedings against him without reasonable cause and in an unreasonable manner, including failure to particularise allegations and refusal to discontinue despite clear settlement with principal parties. The preconditions in s 570(2)(a) and (b) of the Fair Work Act were met, and the solicitor, Mr McDonald, should personally bear the costs on a party-party basis.

Parties
Applicant: Brendan Ryan; First Respondent: PrimeSafe (ABN 39 877 327 401); Second Respondent: Brendan Tatham; Third Respondent: Derek Humphery-Smith
Jurisdiction
Australia
Judgment Date
21 January 2015
Procedural Posture
Application for Costs Following Discontinuance of Proceedings / Post Discontinuance, Costs Determination
Outcome
Costs application granted. Solicitor to bear third respondent's costs personally.
Legal Topics
Fair Work Act Costs Provisions, Accessorial Liability, Legal Representatives' Personal Liability for Costs, Discontinuance and Costs Orders
Employment Law Practice and Procedure Costs Fair Work Act Costs Provisions Accessorial Liability Legal Representatives' Personal Liability for Costs Discontinuance and Costs Orders

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Parties

Brendan Ryan

Applicant

PrimeSafe (ABN 39 877 327 401)

First Respondent

Brendan Tatham

Second Respondent

Derek Humphery-Smith

Third Respondent

Procedural Posture

Application for Costs Following Discontinuance of Proceedings / Post Discontinuance, Costs Determination

Legal Issues

  1. 1 Whether costs should be awarded in a proceeding from the Fair Work Act following discontinuance
  2. 2 Whether costs should be awarded against the applicant's solicitor personally under s 43(3)(f) of the Federal Court of Australia Act
  3. 3 Whether preconditions under s 570(2) Fair Work Act (vexatious, without cause, unreasonable conduct) are met

Ratio Decidendi

The third respondent incurred legal costs because the applicant, on his solicitor's advice, instituted and maintained proceedings against him without reasonable cause and in an unreasonable manner, including failure to particularise allegations and refusal to discontinue despite clear settlement with principal parties. The preconditions in s 570(2)(a) and (b) of the Fair Work Act were met, and the solicitor, Mr McDonald, should personally bear the costs on a party-party basis.

Court Disposition

Costs application granted. Solicitor to bear third respondent's costs personally.

Orders

  • Alan McDonald is to bear personally the legal costs of the third respondent incurred in this proceeding, up to 30 July 2014 and excluding any legal costs attributable to any proceedings in the Fair Work Commission.
  • The legal costs referred to are to be paid on a party and party basis, and to be taxed in default of agreement.