Adcock v Blackmores Limited and Ors (No.2)

[2016] FCCA 980

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADCOCK v BLACKMORES LIMITED & ORS (No.2) [2016] FCCA 980

Catchwords:
INDUSTRIAL LAW – Dismissal of proceedings brought under the Fair Work Act 2009 – costs application.

Legislation:  

Fair Work Act 2009, s.570
Federal Circuit Court of Australia Act 1999, s.17A
Federal Circuit Court Rules 2001, r.6.12

Cases cited:
Adcock v Blackmores Limited & Ors [2016] FCCA 265

Applicant: DAVID ADCOCK

First Respondent: BLACKMORES LIMITED

Second Respondent: CECILE COOPER

Third Respondent: RICHARD HENFREY

Fourth Respondent: LINDA REDFEARN

File Number: SYG 3036 of 2014

Judgment of: Judge Cameron

Hearing date: 14 April 2016

Date of Last Submission: 14 April 2016

Delivered at: Sydney

Delivered on: 14 April 2016

REPRESENTATION

Counsel for the Applicant: Mr D.P. O’Connor

Solicitors for the Applicant: PCC

Counsel for the Respondents: Mr I. Taylor SC

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The applicant pay the respondents’ costs on and from 4 July 2015 on a party and party basis, as agreed or taxed according to the Federal Court Rules 2011.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3036 of 2014

DAVID ADCOCK

Applicant

And

BLACKMORES LIMITED

First Respondent

CECILE COOPER

Second Respondent

RICHARD HENFREY

Third Respondent

LINDA REDFEARN

Fourth Respondent

REASONS FOR JUDGMENT

1. On 12 February 2016 I delivered judgment in this matter and dismissed the application brought to the Court by the applicant: Adcock v Blackmores Limited & Ors [2016] FCCA 265. The respondents have now sought an order for costs consequent upon that dismissal. These reasons concern that application.

2. Because the proceeding was based on rights said to arise out of the Fair Work Act 2009 (“FW Act”) or the Court’s accrued jurisdiction related to Fair Work claims, the Court’s power to order costs is to be found in the FW Act and, in particular, in s.570 which relevantly provides:

   570  Costs only if proceedings instituted vexatiously etc.

   (1)  A party to proceedings (including an 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) 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; or

   …

3. The respondents did not assert that the applicant had instituted the proceeding vexatiously.

4. The test concerning whether costs will be awarded under s.570 because a party instituted a proceeding without reasonable cause has regard to whether that party’s case had no prospects of success or was doomed to fail. Where such circumstances have been demonstrated, it has been held that proceedings have been commenced without reasonable cause. In light of the insertion of s.17A into the Federal Circuit Court of Australia Act 1999, perhaps it would be better to re-formulate the test for costs under s.570 by reference to whether an action had reasonable prospects of success but it is not necessary to resolve that issue at this time.

5. The respondents’ application for costs was advanced by reference to a number of considerations and a number of possible orders.  However, it can be resolved in a comparatively uncomplicated manner. 

6. The applicant’s case was at all times, in my view, a weak one.  It depended on what I have found was a flawed understanding of how the redundancy provisions of the applicable enterprise agreement operated.  Even so, it was not unarguable. 

7. The applicant ought nevertheless to have known how weak his case  was as, even if the precise basis of the respondents’ argument on the enterprise agreement did not make its way from correspondence to the pleadings until the amended response, its difficulties were made clear at an early point in correspondence from the respondents’ solicitors.  Because of the weakness of the applicant’s case, which as I have said should have been apparent to him from an early point, it was unreasonable of him to not have accepted the respondents’ Calderbank offer of 3 July 2015.  However, I am not of the opinion that costs should be awarded on an indemnity basis.  As I said at [28] of the judgment of 12 February 2016:

   Much of the evidence in the case concerned what information was supplied to Mr Adcock at various times before 4 July 2014, how he felt he was treated by Blackmores, his exploration of alternative employment outside Blackmores and Blackmores’ motivation for offering him alternative positions.  In my view, while providing some insights into the deterioration of the relationship between Mr Adcock and Blackmores and into the parties’ case theories, those matters were not relevant to the issues requiring determination. 

8. Costs ultimately being a discretionary matter, I believe that an order for party-and-party costs from the day the Calderbank offer is taken by r.6.12(d) of the Federal Circuit Court Rules 2001 to have been served would do justice to the parties.  There is no need to make any order concerning the amendment to the application made in July 2015 beyond what has already been ordered, other than to say that the only costs which might be recoverable under the order made on 6 July 2015 will be those incurred on or after 4 July 2015.

9. There should be no order for costs in respect of the present application in a case.  The applicant’s conduct in contesting the respondents’ application for costs has been vindicated by the respondents’ failure to get everything they sought.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  28 April 2016