Wilczak v Alpine Refrigeration & Air Conditioning Pty Limited [2005] FCA 35 (4 February 2005)

Last Updated: 4 February 2005

FEDERAL COURT OF AUSTRALIA

Wilczak v Alpine Refrigeration & Air Conditioning Pty Limited [2005]

FCA 35

COSTS – where appeal allowed in part – where remittal of part of matter to Federal Magistrates Court – appropriate order



























ANNA WILCZAK v ALPINE REFRIGERATION & AIR CONDITIONING PTY LIMITED (ACN 055 127 163) AND HARRY SISSANES


N 257 of 2004





BRANSON J
4 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 257 of 2004

BETWEEN:	ANNA WILCZAK APPELLANT
AND:	ALPINE REFRIGERATION & AIR CONDITIONING PTY LIMITED (ACN 055 127 163) FIRST RESPONDENT HARRY SISSANES SECOND RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	4 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	Order 1 of the orders made by the Federal Magistrates Court on 12 February 2004 be set aside.
2.	Subject to par 3 hereof, the appellant’s application to the Federal Magistrates Court be dismissed.
3.	The matter be remitted to the Federal Magistrates Court to allow further consideration to be given to the appellant’s claim that she has not been paid outstanding entitlements of annual leave with leave loading.
4.	The costs of the appellant’s application to the Federal Magistrates Court, including the costs of the hearing held on 17-18 November 2003 and the further hearing to be held pursuant to par 3 hereof, be determined by the Federal Magistrates Court.
5.	The appellant pay 50% of the respondents’ costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 257 of 2004

BETWEEN:	ANNA WILCZAK APPELLANT
AND:	ALPINE REFRIGERATION & AIR CONDITIONING PTY LIMITED (ACN 055 127 163) FIRST RESPONDENT HARRY SISSANES SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	4 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 21 October 2004 I published reasons for judgment in this matter. My conclusion was that the appeal should be dismissed, subject only to the issue of the appellant’s claim to be entitled to receive payment of leave entitlements. However, the only order made by me on that day was that the appeal be stood over to a date to be fixed for the purpose of making orders, including an order or orders as to costs, giving effect to my reasons. I had hoped that the parties might be able to reach agreement as to the appellant’s leave entitlement, if any. The parties have not been able to reach agreement on this issue and thus the matter must be remitted to the Federal Magistrates Court to allow the issue to be given further consideration.

2 I have received written submissions from the parties as to the appropriate orders to be made with respect to costs, both of the hearing in the Federal Magistrates Court and on appeal. The appellant has submitted that an order should be made requiring the respondents to pay her costs both in the Federal Magistrates Court and on appeal. The respondents have submitted that the costs order made by the Federal Magistrate, requiring the now appellant to pay the respondents’ costs to be assessed on an indemnity basis, should stand and that the appellant should be ordered to pay 90% of the respondents’ costs of the appeal.

3 I reject the appellant’s submission that an order should be made by this Court requiring the respondents to pay her costs in the Federal Magistrates Court. The appellant’s appeal against the judgment of the Federal Magistrates Court has failed on all grounds except one. For this reason I do not consider that it would be appropriate for this Court to order that the respondents pay all of the appellant’s costs in the Federal Magistrates Court. I also reject the respondents’ submission that the order for costs made in the Federal Magistrates Court should stand.

4 The success enjoyed by the appellant in this Court is of a very limited nature. The orders made as to costs should reflect this fact but should also reflect the fact that the appellant advanced a ground of appeal before this Court that has been found to have merit. In my view the appropriate course in the circumstances is for this Court to set aside the order for costs made in the Federal Magistrates Court and remit the issue of the cost of the hearings in the Federal Magistrates Court to that court for determination. This course will allow the Federal Magistrate to give fresh consideration to the question of the appropriate order to be made as to the costs of the hearings in that court following the further hearing to be conducted in that court and with the benefit of the reasons for judgment of this Court.

5 I also reject the submissions of both the appellant and the respondents on the issue of the appropriate order for costs on the appeal. In broad terms, it seems to me, the appellant is entitled to her costs of instituting and prosecuting her appeal on the ground on which her appeal has succeeded. The respondent, on the other hand, ought not to be required to pay the appellant’s costs of pressing plainly unmeritorious grounds of appeal. Indeed, it seems to me, the respondents should receive some recompense from the appellant for the costs of responding to plainly unmeritorious grounds of appeal.

6 In my view, justice between the parties with respect to the costs of the appeal will be achieved if, rather than making an order that would give rise to a complex taxation, it is simply ordered that the appellant pay 50% of the respondents’ costs of the appeal.

7 In conclusion I note that the appellant, having been given leave to file written submissions on costs, filed written submissions that sought also to re-agitate issues dealt with in my earlier published reasons for judgment. Leave to re-open the appeal was neither sought nor granted. I have not considered it appropriate to give consideration to the appellant’s written submissions to the extent that they deal with issues other than costs.

8 Orders will be made as follows:

1.	Order 1 of the orders made by the Federal Magistrates Court on 12 February 2004 be set aside.
2.	Subject to par 3 hereof, the appellant’s application to the Federal Magistrates Court be dismissed.
3.	The matter be remitted to the Federal Magistrates Court to allow further consideration to be given to the appellant’s claim that she has not been paid outstanding entitlements of annual leave with leave loading.
4.	The costs of the appellant’s application to the Federal Magistrates Court, including the costs of the hearing held on 17-18 November 2003 and the further hearing to be held pursuant to par 3 hereof, be determined by the Federal Magistrates Court.
5.	The appellant pay 50% of the respondents’ costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 4 February 2005

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	D McLure
Solicitor for the Respondent:	Bahlmann Burke
Date of Hearing:	19 August 2004
Date of Judgment:	4 February 2005