Adachi v Qantas Airways Ltd (No.2)
[2019] FCCA 1109
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADACHI v QANTAS AIRWAYS LTD (No.2) | [2019] FCCA 1109 |
| Catchwords: INDUSTRIAL LAW – Costs application – s.570 of the Fair Work Act 2009 (Cth) – whether unreasonable act or omission by the Applicant. |
| Legislation: Fair Work Act 2009 (Cth), ss.352, 570 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 79 Federal Circuit Court Rules 2001 (Cth), rr.13.03B, 13.10 |
| Cases cited: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574 Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 |
| Applicant: | KEIKO ADACHI |
| Respondent: | QANTAS AIRWAYS LTD |
| File Number: | SYG 3078 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | On the papers |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Byles Anjos Lawyers |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
The Applicant pay the Respondent’s costs of and incidental to the application in a case filed on 11 August 2017 and the hearing on 21 August 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
The Applicant pay 40% of the Respondent’s costs of and incidental to the application in a case filed on 5 October 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
The Applicant pay the Respondent’s costs of and incidental to the hearing on 25 October 2017 as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
There be no order as to costs in relation to the hearing on 2 March 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3078 of 2016
| KEIKO ADACHI |
Applicant
And
| QANTAS AIRWAYS LTD |
Respondent
REASONS FOR JUDGMENT
As discussed in Adachi v Qantas Airways Ltd [2019] FCCA 1107 (Adachi (No 1)) Ms Adachi has commenced proceedings against Qantas Airways Ltd (Qantas) under the general protection provisions of the Fair Work Act 2009 (Cth) (FW Act) alleging adverse action in various respects.
Qantas seeks orders that Ms Adachi pay its costs under s.570(2)(b) of the FW Act in relation to two applications in a case (referred to as interlocutory applications) and three associated hearings. The parties made written submissions and agreed that the costs applications should be determined on the papers.
Section 570 of the FW Act is, relevantly, as follows:
(1) A party to proceedings … in a court … 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.
(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…
Qantas asserts that Ms Adachi’s unreasonable acts or omissions caused it to incur costs of and incidental to:
a)Qantas’ application in a case filed on 11 August 2017 and the hearing in that respect on 21 August 2017 (the first interlocutory application); and
b)Qantas’ application in a case filed on 5 October 2017 (the second interlocutory application) and the hearing on 25 October 2017; and
c)The hearing on 2 March 2018 in relation to the application to strike out points of claim which formed part of the second interlocutory application.
Qantas relies on an affidavit Louise Kate Ritchard, solicitor, affirmed on 5 October 2017.
Ms Adachi opposes the orders sought. She relies on an affidavit of her solicitor, Peter Anjos, sworn on 25 October 2017.
There is no suggestion that the present proceedings were instituted by Ms Adachi vexatiously or without reasonable cause within s.570(2)(a) of the FW Act (as discussed in Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 which was cited in Ms Adachi’s submissions).
Qantas relied only on s.570(2)(b) of the FW Act. Whether a party has engaged in an unreasonable act or omission within s.570(2)(b) of the FW Act depends upon an objective analysis of the particular circumstances of the case (see Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 and Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [89]).
The parties are in agreement that the discretion conferred by the confined terms of s.570(2) should be exercised cautiously and the case for its exercise should be clear (see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6]); Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at [64]). As pointed out in Saxena at [6] (and also see Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574 at [28]), the discretion ought not to become the basis for arguments about costs in relation to any and every transgression in the conduct of a case.
Notwithstanding this, as Mortimer J pointed out in Ryan v Primesafe at [65], the need to exercise the discretion cautiously does not:
... deny the court’s ability to find that one or both of the two preconditions expressed in ss 570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s 570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the court responsibility.
However, the fact that a party does not conduct its litigation in the most efficient way does not in itself mean that the precondition in s.570(2)(b) is met or that the court should exercise its discretion to make a costs order. It is nonetheless clear that a failure to comply with an order of the court can, in the circumstances of a particular case, constitute an unreasonable act or omission. In Australian and International Pilots Association (which related to a predecessor to s.570 of the FW Act) the respondent sought an order for costs in relation to two strike out applications and a hearing. The applicant had failed to comply with directions of the court. The respondent succeeded in relation to half of its costs of the second strike out application and the costs thrown away in relation to the hearing. Tracey J explained at [37]:
There remains the issue of whether the applicant should pay the respondent’s costs thrown away in relation to the hearing on 9 May 2007. In my view such an order should be made. The hearing did not proceed on that day because the applicant had failed to comply with the Court’s directions as to the filing and service of submissions relating to the costs issue. This had occurred because of a unilateral decision by the applicant that it wished to pursue settlement discussions with the respondent. Had it wished to be relieved of the obligation to file submissions, the appropriate course was to apply to the Court to vary the directions which had earlier been made. Had it done so costs would not have been thrown away on 9 May 2007, although costs of any motion to vary the orders may have been payable. In omitting to comply with the Court’s directions and not seeking, in an appropriate manner, to be relieved of its obligation the applicant acted unreasonably.
In Mayberry v Kijani Investments Pty Ltd as trustee for Dawe Investments Trust Subway Wallsend t/as Subway [2011] FCA 1238, Katzmann J was of the view the failure by the respondent to comply with an order of Fair Work Australia to pay the Applicant compensation (which resulted in the Applicant filing an application in the Federal Court) was an act or omission that was unreasonable. Her Honour stated at [28]:
… Ms Mayberry has incurred costs in bringing and prosecuting this action as a result of Kijani’s conduct in disobeying or not complying with an order of Fair Work Australia. That should not have been necessary. On any view that act or omission is unreasonable.
Further, in Saxena Bromberg J held that a failure by the respondent to comply with a court order to file and serve affidavits (until 3 months after the date specified in the order), was an unreasonable act or omission within the terms of s.570(2)(b) of the FW Act. His Honour observed at [7]:
… the failure by a party to comply with orders of the court is a matter of some seriousness. The overarching objectives outlined in s 37M of the Federal Court of Australia Act 1976 (Cth)… make it abundantly clear that proceedings before the court should be conducted as efficiently as possible, with an eye to the expense involved in the conduct of the litigation.
While the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) does not contain a direct equivalent to s.37M of the Federal Court of Australia Act, the objectives of efficiency and avoidance of unnecessary expense in the conduct of litigation are also of direct relevance to proceedings in this court (and see s.3(2) of the FCCA Act).
In Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 6) [2013] FCCA 477 Judge O’Sullivan referred (at [8]) to the discussion in Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231 of the concept of an unreasonable act or omission causing a party to incur costs within s.570(2)(b) of the FW Act. In that case, his Honour concluded that a failure by the respondent to make an application for leave to issue further subpoenas at an earlier time (in accordance with court orders) as well as its failure to comply, without any acceptable explanation, with orders which required any further interim application for the issue of subpoenas to be filed at least 7 days prior to the hearing, amounted to an unreasonable act or omission which caused the applicant to incur costs in relation to the hearing of the interim application.
Some aspects of the procedural history in this matter are set out in Adachi (No 1) which relates to the application by Qantas to strike out some of Ms Adachi’s points of claim (the subject of the hearing on 2 March 2018). Relevantly, for present purposes, the proceedings were commenced on 8 November 2016. On 5 December 2016 the court made orders sought by the parties by consent, which included an order that Ms Adachi file points of claim by 23 December 2016. The Applicant did not comply with this order.
It was not until 7 March 2017 that Ms Adachi filed and served points of claim. A mediation order had also been made in general terms on 5 December 2016. As mediation had not occurred by the time of the next listing for directions on 14 March 2017, the matter was adjourned for mention on 2 May 2017.
On 2 May 2017 the court ordered that Qantas make any request for further and better particulars on or before 2 June 2017. The matter was stood over until 13 July 2017. On 2 June 2017 Qantas issued a request for particulars to Ms Adachi through her solicitors.
On 11 July 2017 Ms Adachi provided a response to the request for particulars in a manner that did not in fact provide the requested particulars. On 12 July 2017 the Respondent’s solicitors wrote to the Applicant’s solicitors reiterating its request for a response to the request for particulars.
On 13 July 2017, on the assumption that the particulars would be provided, the court ordered that the Respondent file a defence on or before 13 September 2017, again referred the matter to the District Registrar for mediation and otherwise stood it over until 31 October 2017.
By email dated 2 August 2017 to Ms Adachi’s solicitors, the solicitors for Qantas requested an urgent response as to whether Ms Adachi would be responding to its request for particulars.
On 11 August 2017 Qantas filed an application in a case seeking particulars of the points of claim (the first interlocutory application).
That application in a case came before me for hearing on 21 August 2017. Ms Adachi’s solicitor appeared through an agent. After an extensive discussion of the need for particulars in various respects as sought by Qantas, which Ms Adachi’s representative acknowledged ought to be provided, the court ordered that the Applicant provide further and better particulars on or before 4 September 2017 and varied the timetable for the Respondent to file a defence.
The Respondent indicated at that time that it intended to seek costs under s.570 of the FW Act in relation to its interlocutory application of 11 August 2017 and the hearing on 21 August 2017.
Notwithstanding the orders of the court of 21 August 2017, the Applicant did not provide any further and better particulars to the Respondent within the time ordered.
On 5 October 2017 the Respondent filed a second application in a case which sought dismissal of the Applicant’s claim pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) or striking out certain paragraphs of the Applicant’s points of claim. As explained in subsequent submissions, the Respondent sought, in the alternative, an order pursuant to r.13.03B(1)(a) of the FCC Rules that all or part of the points of claim be dismissed on the basis that the Applicant was in default as she had failed to comply with court orders, in particular the order of 21 August 2017 to provide a response to the Respondent’s request for particulars and the order that the parties attend mediation. It was submitted that the Applicant’s non-compliance with the orders of the court was exacerbated by her failure to respond to the Respondent’s correspondence about the particulars sought or to offer any explanation for her non-compliance.
Particulars were provided on 18 October 2017. The Respondent considered these to be inadequate.
On 25 October 2017 (at the hearing of the second application in a case) the Applicant sought to rely on an affidavit of her solicitor, Mr Anjos, sworn that day, in which he indicated that he now believed that the Applicant would be able to provide the further and better particulars sought by the Respondent on or before 27 October 2017 in light of the fact that in pre-hearing submissions the Respondent had set out in a detailed table the particulars being sought. This table reflected the matters that were discussed in some detail at the hearing on 21 August 2017.
In these circumstances I ordered that the Applicant provide a response to the outstanding request for particulars as identified in the Respondent’s written submissions by 30 October 2017 and that if she did not comply then the proceedings be dismissed pursuant to r.13.03B(1)(c) of the FCC Rules.
The Applicant provided a response to the outstanding request for particulars on 30 October 2017.
That left on foot the other aspects of the Respondent’s second interlocutory application which were listed for hearing on 2 March 2018. Qantas did not pursue the application for summary dismissal or any further order for dismissal under r.13.03B(1) of the FCC Rules in circumstances where particulars had been provided. Qantas pursued the application that certain paragraphs of the pleadings be struck out (as discussed in Adachi (No 1)). It sought costs in relation to both the first and second interlocutory applications and the hearings on 21 August 2017, 25 October 2017 and 2 March 2018.
I note that in written submissions in opposition to the costs applications counsel for the Applicant drew attention to the fact that in early 2017 Ms Adachi informed her solicitors that she was suffering from cancer and that she was undergoing treatment, including surgery and chemotherapy. Mr Anjos’ evidence in his affidavit of 25 October 2017 is that he informed the solicitors for Qantas, although he did not make a file note of his initial telephone conversation in this respect and did not record the date of this conversation. He had, however, been informed that Ms Adachi was due to undergo surgery on 28 February 2017.
On 9 March 2017 Mr Anjos informed the solicitor for Qantas in writing that Ms Adachi had had surgery but that he had not received any indication as to when she was likely to be fit to participate in a mediation. Mr Anjos instructed an agent to appear at the directions hearing on 14 March 2017 and to advise the court of the Applicant’s situation. This occurred. The proceedings were adjourned until 2 May 2017.
On 6 April 2017 Mr Anjos wrote to the solicitors for Qantas advising that Ms Adachi was undergoing chemotherapy and would also be undergoing a second round of chemotherapy which was expected to be completed on 15 May 2017. On 21 April 2017 he advised the solicitors for Qantas that Ms Adachi had to undergo further chemotherapy treatment that was not expected to be concluded until 12 June 2017.
Mr Anjos’ evidence is that during this time it was difficult for him to obtain his client’s instructions due to the side effects of chemotherapy, but that on 9 June 2017 he commenced preparation of a response to the request by Qantas for further and better particulars (which he claimed he was not able to finalise until he obtained instructions from Ms Adachi). He stated that he provided a response on 11 July 2017 (albeit in a letter incorrectly dated 9 June 2017). He suggested that he also asked the Respondent to specifically identify the particulars sought (which was the case in relation to 3 of the 9 paragraphs in the points of claim addressed in his response).
As indicated, the Respondent’s solicitors replied by letter of 12 July 2017 referring to inadequacies in the response and a failure to respond at all to certain of the requests for particulars. This was followed by the events described in paragraphs [20] to [25] above.
Ms Adachi submitted that whether she diligently and properly prosecuted her case since its commencement must be determined in the context of her serious illness in 2017. This may be accepted. Indeed in submissions Qantas accepted that Ms Adachi’s ill health was the cause of the earlier delay in the proceedings and her earlier failures to comply with directions of the court. Such matters are not the subject of the present applications.
At the directions hearing on 13 July 2017, the court was informed that Ms Adachi was no longer receiving treatment and that she would be travelling overseas from 17 July to 5 August 2017. The orders made that day reflected this information.
The circumstances which are the subject of the present applications for costs occurred after Ms Adachi (through her solicitor) advised both the court and Qantas on 2 May 2017 that her treatment would conclude on 12 June 2017 and her solicitor advised that Ms Adachi was “now” in a position to respond to the request for particulars.
As Qantas submitted, it is necessary to consider separately the bases on which costs are sought and Ms Adachi’s conduct as it relates to each of those circumstances.
The timetable in the orders of 2 May 2017 made allowance for completion of Ms Adachi’s treatment. However when Qantas made a request for further and better particulars on 2 June 2017 (within the orders made by the court on 2 May 2017), while a response was produced on 11 July 2017 it was, as discussed at the subsequent hearing on 21 August 2017, not adequately responsive to the request for further and better particulars. This has effectively been conceded by the Applicant’s subsequent provision of further particulars on 30 October 2017.
Further, on receipt of the Applicant’s response of 11 July 2017, the Respondent sent the Applicant’s solicitor correspondence of 12 July 2017 that outlined the inadequacies of the particulars provided. Reference was made to the fact that in circumstances where the proceedings involved a general protections claim under which the Applicant would be afforded certain presumptions and the reverse onus would apply, that the Respondent was entitled as a matter of procedural fairness to know with certainty the claims made and the issues to be tried and to be in a position to know what evidence would be necessary. While this letter was largely in general terms, it also addressed difficulties with the Applicant’s response that certain matters were within the knowledge of the Respondent, drew the Applicant’s attention to the definition of “usual particulars” in the request for particulars and to the failure to provide any response to some of the requests for particulars. The Respondent sought a response no later than 21 July 2017.
At the directions hearing on 13 July 2017 Qantas was ordered to file and serve its defence by 13 September 2017. This order was made on the assumption that Ms Adachi would provide the requested particulars on or before 21 July 2017. However that did not occur. There was no response by Ms Adachi’s solicitor to the request for further particulars. On 2 August 2017 Qantas sent an email to Ms Adachi’s solicitor enquiring whether he intended to respond the request for particulars. There was no response to that correspondence.
As the Respondent submitted, it is clear from the procedural history (not taking into account Ms Adachi’s serious illness and the period subsequent treatment in 2017) that there was a failure on the part of Ms Adachi (through her solicitors) to diligently and properly prosecute the matter, including a failure to comply with orders of the court and to respond to the requests of the Respondent for further and better particulars, despite reiteration of the request on 12 July 2017 and 2 August 2017.
It was in these circumstances that the Respondent filed the first application in a case on 11 August 2017 seeking a response to its outstanding request for particulars.
The Respondent had been ordered to file and serve a defence on or before 13 September 2017. It is difficult to see how it could have obtained the necessary particulars in the absence of the first interlocutory application of 11 August 2017.
The Applicant did not provide the requested particulars before the filing or the hearing of the first interlocutory application. Such conduct amounted to an unreasonable omission which caused the Respondent to incur the costs of and incidental to the first interlocutory application and the hearing on 21 August 2017.
Insofar as Mr Anjos’ explanation for the delay in providing a response to the request for particulars was his involvement in several hearings and an oversight on his part, this is an unsatisfactory explanation, particularly in circumstances where he failed to respond to correspondence and reminders from the Respondent and having regard to the nature of the proceedings. As the Respondent submitted, in such circumstances the remarks of Mortimer J in Ryan v Primesafe at [65] that parties should conduct proceedings reasonably, fairly and effectively and access the courts responsibly have particular force.
At the hearing on 21 August 2017 the Applicant’s solicitor appeared by an agent. There was extensive discussion to identify the matters in respect of which further particulars were sought and why. Importantly, the solicitor representing Ms Adachi at that hearing very properly made concessions in relation to the need for further and better particulars. He was asked to convey the import of the discussions at the hearing to Mr Anjos. An order was made that the Applicant provide further and better particulars before 4 September 2017.
It was unnecessary for the court to deliver a judgment at the hearing of 21 August 2017 in circumstances where during the hearing the solicitor appearing for the Applicant had acknowledged the need for further and better particulars as discussed and detailed by the Respondent during the hearing.
The first interlocutory application and the hearing of 21 August 2017 were necessary in circumstances where the Applicant’s solicitors had failed to respond to requests of the Respondent’s solicitors for further particulars. This failure necessitated the filing of an interlocutory application seeking the involvement of the court to progress the matter. I am satisfied that the repeated failure of the Applicant to provide the requested particulars, in circumstances where the Respondent had reiterated the request for particulars and why such particulars were required, amounted to an unreasonable act or omission which caused the Respondent to incur the costs of and incidental to the first application in a case and the hearing on 21 August 2017 as a direct consequence within s.570(2)(b) of the FW Act. I am also satisfied that it is appropriate that the Applicant pay the costs of the Respondent of and incidental to the first interlocutory application and the hearing on 21 August 2017.
The second aspect of the costs sought by the Respondent relates to the second interlocutory application and the hearing before the court on 25 October 2017.
A number of issues were raised in the second interlocutory application filed on 5 October 2017. It was filed in circumstances where, notwithstanding the express order of the court on 21 August 2017 for the provision of further and better particulars by 4 September 2017, the Applicant did not comply with this order and did not provide any further and better particulars in accordance with the concessions made in the hearing of 21 August 2017. Nor was any extension of time to comply with that order sought.
Mr Anjos’ explanation appears to be that after the hearing of 21 August 2017 he did not receive any correspondence from Qantas’ solicitors in relation to the request for further and better particulars. This is not a satisfactory explanation or such as to render the Applicant’s failure to comply with the court’s order reasonable. An order had been made by the court that further and better particulars be provided. The Applicant was in clear default of the court’s order.
Notwithstanding the concessions made by the solicitor appearing for Ms Adachi at the hearing of 21 August 2017, particulars were not provided. The failure to comply with the order of the court is a matter of some seriousness (as discussed by Bromberg J in Saxena). The Applicant’s disregard for the order of the court in a broad sense necessitated that the Respondent file a second application in a case. However it was expressed as an application for summary dismissal or to strike out points of claim.
The Respondent filed the second interlocutory application in a case on 5 October 2017. This was some two and a half months after the court’s order of 21 August 2017 and a month after the time for provision of further and better particulars had expired. The second interlocutory application was listed for hearing on 25 October 2017. The parties provided pre-hearing written submissions addressing all of the relief sought.
In its pre-hearing submissions, Qantas sought in the alternative that all or part of the points of claim be dismissed pursuant to r.13.03B(1)(a) of the FCC Rules in circumstances where the Applicant had not complied with the order of 21 August 2017 for further particulars.
It is the case that the Applicant did provide particulars on 18 October 2017 (after the second interlocutory application was filed) but, as the Respondent’s solicitors advised her solicitors by letter of 20 October 2017, those particulars did not reflect what had been conceded to be necessary in the hearing of 21 August 2017 or respond in full to the request for further and better particulars.
After receipt of the Applicant’s response of 18 October 2017, Qantas provided a table to her solicitors on 23 October 2017 (as an annexure to its submissions) which analysed the particulars provided to date and the manner in which they did not accord with the court’s order of 21 August 2017. Further particulars were not provided before the hearing on 25 October 2017.
At the hearing on 25 October 2017 it was conceded for Ms Adachi that her solicitors “now” understood that further and better particulars were required and advised that they would be provide. There was no other explanation for the delay or the failure by the Applicant to comply with the court’s order within the relevant time, other than that her solicitor was busy and there had been an oversight.
In these circumstances, on 25 October 2017 the court again ordered that the Applicant provide a response to the outstanding request for particulars as identified in the table annexed to the Respondent’s submissions and made an order under r.13.03B(1)(c) to come into effect if such particulars were not provided by 30 October 2017.
Contrary to any submission from the Applicant that it was only the period from 4 September 2017 that was in issue, the failure and delay in question is to be seen in context. The delay commenced, at the latest, and making full allowance for Ms Adachi’s illness, on 12 July 2017, in circumstances where she had provided an inadequate response on 11 July 2017 and failed to provide any response to the second request of 12 July 2017. It continued despite orders made on 13 July 2017 on the basis that particulars would be provided.
Further, had the Applicant complied with the order of 21 August 2017, to the extent the second interlocutory application sought orders based on the absence of particulars it would not have been necessary. The Applicant’s action in failing to respond to the request for further and better particulars, failing to respond to correspondence and failing to comply with the court order is relevant as part of all the circumstances in considering whether she engaged in an unreasonable act or omission which caused the Respondent to incur costs.
I have borne in mind the need for caution in applying s.570(2)(b) of the FW Act as discussed in Saxena and Clarke and the fact that the discretion to award costs ought not to be exercised in the case of every transgression in the conduct of proceedings. In this case there was no explanation, or no adequate explanation, for the delay and the failure by the Applicant to comply with the court’s order. In the particular circumstances of this case, given the history of the matter, the extensive correspondence between Qantas and Ms Adachi’s solicitors and the explanation of the nature of and the reasons for the further particulars which was accepted for the Applicant at the hearing on 21 August 2017, Mr Anjos’ explanation is entirely unsatisfactory. This was not simply a minor and excusable transgression or a lack of efficiency in the conduct of the proceedings. I also note that, as Qantas pointed out, if Mr Anjos did not understand fully the nature of the necessary particulars explained to and agreed to by his agent he could have obtained a transcript of the hearing on 21 August 2017.
In the particular circumstances of this case the conduct of the Applicant in failing to provide the required particulars as ordered at the hearing on 21 August 2017 was an unreasonable act or omission.
However whether this act or omission caused the Respondent to incur the costs of and incidental to the second interlocutory application is less straightforward. In my view, the Applicant’s unreasonable act or omission in failing to comply with the order of the court of 21 August 2017 to provide further and better particulars caused the Respondent to incur some, but not all, of the costs of the second application in a case. The application sought summary dismissal of part of the proceedings or striking out of part of the points of claim and such other orders as the court considered appropriate. In pre-hearing correspondence between the parties (after inadequate particulars were provided) it was clarified that the Respondent also sought to rely on r.13.03(B)(1)(a) of the FCC Rules. However part of the initial strike out or dismissal application also reflected the failure by the Applicant to provide particulars of the points of claim.
In other words, the Applicant’s failure to comply with the court order to provide particulars necessitated the second interlocutory application insofar as the relief sought reflected the absence of a response to the order for particulars. The “particulars” issue was the subject of the hearing on 25 October 2017.
Costs are within the discretion of the court (see s.79 of the FCCA Act). I have borne in mind that various matters were raised in the second interlocutory application and addressed in pre-hearing submissions and that not all of these matters related to the absence of particulars. Doing the best I can on the material before me I consider that the Applicant should pay 40% of the Respondent’s costs of and incidental to the second interlocutory application. This reflects the fact that while the issue of particulars was one reason for that application (and underlaid aspects of the orders sought) the Respondent also sought summary dismissal or to strike out some of the points of claim on bases unrelated to the absence of particulars. The other bases are discussed further below.
The hearing on 25 October 2017 related to the issue of particulars. The Respondent should have its costs in that respect as they were caused by the Applicant’s unreasonable act or omission in failing to comply with the court order of 21 August 2017. She failed to respond properly to the request for particulars until 30 October 2017.
As indicated, on 25 October 2017 the court ordered that that if the Applicant did not respond to the outstanding request for particulars by 30 October 2017 her application would be dismissed under r.13.03B of the FCC Rules. The application for summary dismissal and/or to strike out part of the points of claim (if the proceedings remained on foot) were not addressed at the hearing on 25 October 2017.
The strike out order sought in the second application in a case was the subject of the hearing on 2 March 2018. The Respondent did not pursue the application for summary dismissal under r.13.10 of the FCC Rules (which was said to be based on deficiencies in the pleadings or an abuse of process).
The Respondent seeks the costs of the hearing of 2 March 2018 (as well as all of the costs of the second interlocutory application). It is asserted that although the Applicant provided most of the requested particulars by 30 October 2017, the points of claims remained deficient and embarrassing in a number of respects and, it was submitted, a number of the claims were misconceived. An example of this was said to be the misconceived nature of the claim under s.352 of the FW Act in reliance on the assertion that there was a dismissal due to the Applicant’s temporary absence. It was submitted that it should have been clear to the Applicant that this claim was without merit and entirely misconceived, but pointed out that it was only at the hearing of 2 March 2018 that this claim was withdrawn by the Applicant. Issue was also taken with the fact that the Applicant continued to insist on pursuing claims where a temporal disconnect had been raised in submissions, in particular the fact that some of the pleaded conduct occurred after the alleged adverse action and so could not have been the reason for such alleged adverse action. The Respondent submitted that the Applicant’s failure to address the concerns it had raised in these respects meant that it was required to pursue its strike out application and incur costs in the process.
The Respondent also criticised the Applicant’s alleged failure to properly define and plead her claims. It was contended that the points of claim included matters that were not connected to the Applicant’s claims under the FW Act. The Respondent submitted that the fact that Applicant adopted such pleading and sought to maintain it despite the issues raised in submissions constituted an unreasonable act or omission which had made it necessary for Qantas to pursue the application to strike out some of the points of claim and/or clarification in respect of the claims. On this basis it sought the costs of and incidental to the hearing of 2 March 2018.
The Applicant pointed to the fact that she had provided further and better particulars on 30 October 2017 and the summary dismissal and r.13.03B applications were not pressed. It was submitted that the fact there was no determination on the merits of those aspects of the Respondent’s application vitiated against the exercise of the court’s power to award costs under s.570(2)(b) of the FW Act. I note however that had Ms Adachi failed to provide further and better particulars on 30 October 2017 a r.13.03B dismissal would have resulted.
Qantas did not pursue the summary dismissal application, but that left for consideration the strike out application. However insofar as Qantas relied in part on Ms Adachi’s withdrawal of the ‘Temporary Absence’ claim to found its application for costs under s.570(2)(b) of the FW Act, as Ms Adachi submitted, the withdrawal of the this claim is not such as to amount to or contribute to an unreasonable act or omission as distinct from a properly made concession as referred to in Clarke at [29].
While Qantas referred to what it described as the voluntary election by Ms Adachi to abandon the ‘Stop Bullying Proceedings’, Ms Adachi submitted that this overlooked the fact that Qantas had not adverted to correspondence from it to the FWC at this time. The asserted correspondence and related communications between the parties and the FWC are not in evidence. There is no basis on which any findings can be made in respect of those matters.
The FWC did not determine either of the stop bullying proceedings. However it is also clear that the Applicant chose to file notices of discontinuances where the remedy that she sought in those proceedings (stop bullying orders) would be of no utility in circumstances where her employment had been terminated.
It is also important to have regard to the fact that (in contrast to the second interlocutory application itself) the hearing of 2 March 2018 related only to the application to strike out part (not all) of the points of claim. Further, while some of the criticisms by Qantas of the points of claim are warranted, as discussed in Adachi (No 1), it succeeded in some, but not all, aspects of the strike out application.
I bear in mind that s.570(2)(b) is an exception to the principle that proceedings under the FW Act are a no cost jurisdiction (see s.570(1) of the FW Act). The discretion conferred by s.570(2) should be exercised cautiously and the case for its exercise must be clear. The hearing on 2 March 2018 was not necessitated by the Applicant’s failure to comply with court directions. There were some obvious deficiencies and lack of clarity in the points of claim (although not as many as were contended for by the Respondent). However the exercise of the discretion in s.570(2)(b) is not necessarily engaged because a party does not conduct litigation efficiently, a concession is made late, a party has a adopted a genuine, but misguided, approach or even if a party may have acted in a different or timelier fashion (see Rentuza at [26] – [28]).
On an objective analysis of the particular circumstances of the case and having regard to the nature and extent of the points of claim the subject of the strike out application and what occurred prior to and at the hearing in March 2018, I am not satisfied that the deficiencies in the points of claim are such as to satisfy me that Ms Adachi’s reliance on the points of claim amount to an unreasonable act or omission.
It is the case that issues about the drafting of the points of claim in relation to which the Respondent succeeded can be said to be have caused it to incur costs by act or omission of the Applicant. However, on balance, I am not satisfied that that the Applicant’s approach to the drafting of the points of claim or what occurred prior to or at the hearing of 2 March 2018 in relation to the points of claim issues has been shown to amount to an “unreasonable” act or omission. In any event, I am not satisfied that the court should exercise the confined discretion to award costs under s.570 of the FW Act in relation to that part of the second interlocutory application that did not relate to the failure to provide particulars as ordered or the hearing of the strike out application.
In that respect I note that opposing an application that is ultimately successful in whole or in part is not necessarily in itself unreasonable (see Clarke and Saxena). I also note the remarks of the Full Court of the Federal Court in Clarke (albeit in relation to a predecessor to s.570(2)) that while the discretion conferred by a provision such as s.570(2) should be used by the court to ensure that parties to litigation under legislation such as the FW Act do not engage in unreasonable acts or omissions that put the other party to undue expense, it is necessary to be careful not to exercise the discretion to award costs with too much haste, given that such haste may discourage parties from pursuing litigation under the FW Act in the manner which they deem best, for fear of an adverse costs order.
I am not persuaded that the Applicant should pay the costs of the Respondent in relation to the second interlocutory application insofar as it related to matters other than the particulars issue or the costs of the hearing on 2 March 2018.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 30 April 2019
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