Amponsem v Laundy (Exhibition) Pty Ltd (No.2)
[2016] FCCA 91
•29 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMPONSEM v LAUNDY (EXHIBITION) PTY LTD (No.2) | [2016] FCCA 91 |
| Catchwords: INDUSTRIAL LAW – Costs – proceedings commenced by employee against employer under Fair Work Act 2009 (Cth) (FW Act) to recover accrued but unpaid annual leave – employer successfully pursued cross-claim against employee for equitable compensation for breach of fiduciary duty – employer seeks costs of pursuing cross-claim (non-federal law claims) – whether s.79(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) applies to deprive the Court of jurisdiction it otherwise would have under s.79(2) of the FCC Act to award costs for the non-federal law claims – whether the proceedings in which employer incurred costs in relation to the non-federal law claims relate to matter arising under the FW Act – meaning of “proceedings” – meaning of “matter” – s.79(1) of the FCC Act applies to deprive Court of jurisdiction to award costs under s.79(2) of the FCC Act in relation to the non-federal law claims. |
| Legislation: Bankruptcy Act 1966 (Cth), s.176 |
| Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCCA 2206 Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia) [1996] 1 VR 17 Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 Dalglish v MDRN Pty Ltd (No.2) [2014] FCCA 1969; (2014) 287 FLR 227 LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24; (2006) 225 CLR 274 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 Re Judiciary Act 1903-1920 & In re Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637; (2004) 148 FCR 145 Stanley v Service to Youth Council Incorporated (No.3) [2014] FCA 716; (2014) 225 FCR 357 |
| Applicant: | KOBINA AMPONSEM |
| Respondent: | LAUNDY (EXHIBITION) PTY LTD |
| File Number: | SYG 261 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 16 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2016 |
REPRESENTATION
No appearance on behalf of or by the applicant
| Counsel for the Respondent: | Mr B Cross |
| Solicitors for the Respondent: | Australian Hotels Association (NSW) |
ORDERS
The application in a case filed on 9 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 261 of 2012
| KOBINA AMPONSEM |
Applicant
And
| LAUNDY (EXHIBITION) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 September 2014 I ordered the applicant, Mr Amponsem, to pay to the respondent (Laundy) compensation in the amount of $72,838.60.[1] That amount reflects the difference between the equitable compensation of $84,143.60 I found Mr Amponsem was liable to pay to Laundy, and accrued but unpaid annual leave of $11,305.00 Laundy accepted it owed to Mr Amponsem.
[1] Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCCA 2206
Laundy applies for an order that Mr Amponsem pay 90% of its legal costs in the proceedings (Claimed Costs). It submits that the Claimed Costs represent a fair proportion of the total costs Laundy incurred in pursuing its cross-claim for the equitable compensation I found Mr Amponsem was liable to pay.
Issues arising
The source of the Court’s power to order costs is s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). This section opens with s.79(1) which contains a negative rule:
This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 or section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
It is then followed by s.79(2) which confers the (now qualified) general power to award costs:
The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
Thus, the Court has a general power under s.79(2) of the FCC Act to award costs in a proceeding; but that general power is subject to the exclusion contained in s.79(1) of the FCC Act. Before the Court may award costs in any proceedings pursuant to s.79(2) of the FCC Act, therefore, it must be satisfied that s.79(1) of the FCC Act does not apply. If the Court is satisfied s.79(1) of the FCC Act applies, the power to award costs must be found elsewhere. If s.79(1) of the FCC Act applies because there is before the Court “proceedings in relation to a matter arising under the” Fair Work Act 2009 (Cth) (FW Act), the Court’s power to award costs is to be found in s.570 of the FW Act.
The potential sources of power the Court has to order costs in relation to the Claimed Costs, therefore, are s.79(2) of the FCC Act, if s.79(1) of the FCC Act does not apply, or s.570 of the FW Act, if s.79(1) of the FCC Act does apply. Laundy does not rely on s.570 of the FW Act. The only source of power, therefore, to award costs in relation to the Claimed Costs is s.79(2) of the FCC Act. The question Laundy’s application for costs raises, therefore, is whether s.79(1) applies to exclude s.79(2) of the FCC Act; and that question turns on whether the Claimed Costs were incurred in “proceedings in relation to a matter arising under the” FW Act.
“Proceedings”
The first word to consider is “proceedings”. This word is not defined in the FCC Act, but it is extensively used in the FCC Act, in the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), and in most, if not all, statutes that constitute, confer jurisdiction on, and regulate the procedures of our courts, as well as in the rules of other courts.
The meaning of “proceeding”, as that word was used in the Service and Execution of Process Act 1901-1924 (Cth), was considered by the High Court in Cheney v Spooner.[2] Isaacs and Gavan Duffy JJ said that a proceeding, used broadly, “is merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer”;[3] and Starke J said a proceeding is “any application by a suitor to a Court in its civil jurisdiction for its intervention or action”.[4]
[2] [1929] HCA 12; (1929) 41 CLR 532. I acknowledge the scholarship of Mr Mark Leeming, as his Honour then was, in my becoming aware of this case: M Leeming Authority to Decide: The law of Jurisdiction in Australia Federation Press 2012 pages 34-35.
[3] [1929] HCA 12; (1929) 41 CLR 532 at pages 536-537
[4] [1929] HCA 12; (1929) 41 CLR 532 at pages 538-539
The meaning of “proceedings” was also considered by Tadgell JA in Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia).[5] The issue in that case was whether the trial judge incorrectly equated the meaning of “proceeding” as defined in s.3(1) of the Supreme Court Act 1986 (Vic) (SC Act) with the subject of the justiciable dispute that was before the trial judge.[6] Tadgell JA, with whom the other members of the Victorian Court of Appeal agreed, held the trial judge did err. His Honour accepted counsel’s submission that:[7]
a proceeding is to be understood to mean not the subject of a justiciable dispute but the means or the vehicle by which the subject matter of a dispute is brought before the court for adjudication.
[5] [1996] 1 VR 17
[6] “Proceeding” was defined in s.3(1) of the Supreme Court Act 1986 (Vic) to mean “any matter in the Court other than a criminal proceeding”.
[7] [1996] 1 VR 17 [20]
Tadgell JA described the legislative background to the inclusion of the definition of “proceeding” in s.3(1) of the SC Act:[8]
Before the extensive revision in 1986 of the Supreme Court Act 1958 and its repeal and the enactment of the Supreme Court Act 1986 and the contemporaneous promulgation of a new Ch I of the Rules of the Supreme Court, there was no single term or expression in the Act, or in the rules, describing a matter in the civil jurisdiction of the court. Civil proceedings in the court have been variously referred to in the Supreme Court Act and in the rules as “actions”, “causes” or “matters”; and these expressions were defined in subs(1) of s3 of the Supreme Court Act 1958. They were so described in preceding consolidations of the Act ever since the Judicature Act 1883 of this state, the descriptions having apparently been taken from the English Judicature Acts. . . The effect of Act 63 of 1986 and the new Ch I . . . was that the former expressions “action” and “cause” were swept away.
[8] [1996] 1 VR 17 [21]
His Honour then concluded:[9]
It appears to me to be clear that the word “proceeding”, as defined in s3 of the Supreme Court Act 1986, is used as a generic expression to embrace what was formerly comprehended individually and respectively by the expressions “action”, “cause” and “matter”. The expression “matter in the court” in the definition of “proceeding” in s3 refers on that assumption to a proceeding in the sense of a vehicle by which the jurisdiction of the court is invoked and not to the subject matter of a justiciable dispute. That conclusion is, I think, rendered inescapable by a consideration of the Supreme Court Act 1986 as a whole, and especially of a large number of sections therein containing a reference to a “proceeding”, in which the word is quite obviously used in the sense I have indicated.
[9] [1996] 1 VR 17 [22]
What was said in Cheney, and what Tadgell JA said of the meaning of “proceeding” in s.3(1) of the SC Act, are useful starting points for determining the meaning of “proceedings” in s.79(1) of the FCC Act.
First, at the very least, a proceeding includes the means or vehicle by which a party invokes, or purports to invoke the jurisdiction of a court; and the means by which a court’s jurisdiction is invoked, or is purportedly invoked, is by the initiating party urging the court in some way to take some action, usually against another person. In short, an applicant invokes or purports to invoke the jurisdiction of a court by communicating a claim to that court for an order or orders, usually against another person.
Second, the rules, forms, and practice of the court in question regulate the means by which that court may be urged to take action. The principal vehicle by which this Court may be urged to take some action is by the filing of an application in the approved form.[10] But there are other available means. One is the filing of a cross-claim.[11] Another is the filing of an application in a case in relation to a procedural or interim claim.[12]
[10] FCC Rules, Part 4
[11] FCC Rules, Part 28
[12] FCC Rules, r.4.01(2), (4); r.4.08
Third, the existence of a proceeding does not necessarily depend on an applicant making a claim in accordance with the rules and practice of the court in question. Any form of communication with a court that purports to make a claim for relief may potentially constitute a proceeding. Most, if not all courts have express and implied power to make orders to ensure that its procedures are complied with. And most, if not all courts have varying degrees of power to relieve a party from his or her obligation to comply with particular rules. Thus, a claim communicated to a court in a manner that does not comply with that court’s procedures may still be a proceeding, at the very least because the court, on the application of another party, or of its own motion, may need to decide what to do with the irregular means by which its jurisdiction has been purportedly invoked.
Fourth, the existence of a proceeding in a court does not depend on the court having jurisdiction to do that which the initiating party urges the court to do. Every court has the obligation, and hence the power, to determine whether it has jurisdiction to entertain a claim.[13] There is, therefore, a proceeding before the court even where the court does not have jurisdiction to determine the claim by which the court’s jurisdiction is purportedly invoked, at least up to the point where the court determines it does not have jurisdiction to entertain the claim.
[13] “[I]t is the first duty of judicial and quasi-judicial bodies, when a question of their jurisdiction and powers is raised, to satisfy themselves as to such jurisdiction and as to their power to afford the relief claimed.” - Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24; (2006) 225 CLR 274at [51] (Kirby J citing The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 495; Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415; Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 656-657 [68].)
Fifth, in most cases, a proceeding will constitute more than the communication by which an applicant makes his or her claim. The initial communication is only the first step in the proceeding. In most cases, the proceeding assumes a life that is given shape by the rules and procedure of the relevant court, and the actions the other party or the court may take. The shape or constitution of any given proceeding, therefore, changes over time. The principal variables that affect and define the constitution of a given proceeding are the grounds on which an applicant claims relief, the grounds on which the respondent defends the claims for relief, and whether the respondent claims relief against the applicant or a third party. At any given time, therefore, a proceeding will be able to be described in terms of the claims for relief that are made, by whom and against whom they are made, the grounds on which they are made, and the grounds on which each claim for relief is resisted. Thus, in the one proceeding there may be, and there often is, more than one claim for relief.
Finally, and as was made clear in Cheney and in Braeside Bearings Pty Ltd, there is a distinction between a proceeding and the claims that are made in that proceeding. A proceeding constitutes the communications made to the court by the parties and to each other, usually according to the rules of procedure and practice of the court in question, and usually by means of the forms prescribed by the rules of the court, in which the parties urge the court to take or not take some action, and identify the grounds on which the court is urged to take or not to take some action.
There is no question that by filing his application in this Court for relief under the FW Act, Mr Amponsem initiated a proceeding in this Court; and that, by the conclusion of the hearing of that proceeding, there were a number of claims that fell within the proceeding. There was Mr Amponsem’s claim under the FW Act for the recovery of accrued but unpaid annual leave; there was a common law claim by Mr Amponsem based on his contract of employment; and there were claims by Laundy based on asserted breaches by Mr Amponsem of his contract of employment and on asserted breaches of fiduciary duty by Mr Amponsem.
Laundy submits that its cross-claim was a separate proceeding to Mr Amponsem’s proceedings under the FW Act; and it was a separate proceeding that was not brought under the FW Act.[14] For that reason, Laundy submits, s.79(1) of the FCC Act does not apply to exclude the application of s.79(2) of the FCC Act to the claims Laundy brought on its cross-claim. I do not accept Laundy’s submission. There was only one proceeding before this Court; and it was the proceeding Mr Amponsem commenced under the FW Act. It could not have been otherwise. This Court does not have jurisdiction to consider claims for breach of contract and breach of fiduciary duty unless such claims form part of one justiciable controversy which includes a claim, made under or by virtue of a matter, over which this Court does have jurisdiction.
[14] Respondent’s Outline Of Submissions Regarding Costs, [8]
Even if, however, Laundy is correct in submitting the cross-claim constituted a separate proceeding from that which arose when Mr Amponsem filed his application, that does not necessarily mean that the separate proceeding would not be a matter arising under the FW Act. Claims that are brought in two separate proceedings may both relate to a single “matter”. That is what occurred in Re Wakim; Ex parte McNally.[15] Gummow and Hayne JJ (with whose reasons on this point Gleeson CJ and Gaudron J agreed) held that proceedings, bought by a creditor of a bankrupt estate against the trustee in bankruptcy under s.176 of the Bankruptcy Act 1966 (Cth) and proceedings the creditor brought against solicitors for negligence, constituted a single matter.[16]
[15] [1999] HCA 27; (1999) 198 CLR 511
[16] [1999] HCA 27; (1999) 198 CLR 511 at [142]: “Here, the three proceedings could have been joined in one. The fact that those advising Mr Wakim chose to issue separate proceedings at different times does not mean that the scope of the controversy is limited to the matters raised in the first proceeding.”
“Arising under the” FW Act
The next question to consider is the expression “arising under the” FW Act. The words “arising under” are used in s.76(ii) of the Constitution That paragraph of the Constitution empowers Parliament to “make laws conferring original jurisdiction on the High Court in any matter . . . [a]rising under any laws made by Parliament”. It has been said that:[17]
The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.
[17] R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at page 154 (Latham CJ). This passage was referred to with approval in LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at page 581
The expression “arising under” in s.79(1) of the FCC Act necessarily bears the same meaning as the expression appearing in s.76(ii) of the Constitution. Under s.77(i) of the Constitution Parliament is authorised to make laws defining the jurisdiction of any federal court other than the High Court “[w]ith respect to any of the matters mentioned in the last two sections…”, one of those matters being “any matter . . . [a]rising under any laws made by the Parliament”. Parliament has exercised the power under s.77(i) of the Constitution in relation to the FW Act by enacting s.566 of the FW Act which confers jurisdiction on this Court “in relation to any civil matter arising under” the FW Act.
Again, there is no question that Mr Amponsem’s claim for the payment of accrued but unpaid annual leave was a matter arising under the FW Act. His entitlement to the accrued leave was something that owed its existence to a federal law, namely, the FW Act. The enforcement of Mr Amponsem’s claim for accrued but unpaid annual leave also depended on the FW Act. Thus, at the very least, to the extent the proceedings related to Mr Amponsem’s claims under the FW Act, the proceedings related to a matter arising under the FW Act and, therefore, fell within s.79(1) of the FCC Act.
“Matter”
The next question is whether the non-federal claims Laundy made on its cross-claim constituted or related to a “matter” “arising under” the FW Act. The word “matter”, as it appears in s.79(1) of the FCC Act, bears the same meaning as “matter” in s.75, s.76, and s.77 of the Constitution. That is so because:
a)under s.77(i) of the Constitution, Parliament can confer jurisdiction on this Court only “[w]ith respect to any of the matters mentioned in” s.75 and s.76 of the Constitution;
b)one of the matters identified in s.75 and s.76 of the Constitution is that identified in s.76(i), namely, any “matter . . . [a]rising under any law made by Parliament”; and
c)Parliament has exercised its power under s.77(i) of the Constitution by enacting s.566 of the FW Act which confers jurisdiction on this Court “in relation to any civil matter arising under” the FW Act.
There are a number of observations to be made about the meaning of “matter”. First, a “matter” is distinct from a proceeding. That point was made in Re Judiciary Act 1903-1920 & In re Navigation Act 1912-1920: [18]
We . . . do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.
[18] [1921] HCA 20; (1921) 29 CLR 257 at page 265
Second, a “matter” is not synonymous with a cause of action or a claim for relief. A matter is a set of asserted facts that have such a degree of commonality as to give rise to one justiciable controversy, even though the one controversy may give rise to more than one cause of action, and to more than one claim for relief. Different expressions have been used to describe the required degree of commonality among asserted facts before they can legitimately be characterised as giving rise to one justiciable controversy. An influential formulation is that given by Mason J (as his Honour then was) in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, who referred to “common transactions and facts” arising “out of a common substratum of facts”.[19] A more recent, and more comprehensive, formulation is that of Gummow and Hayne JJ in Re Wakim:[20]
What is a single controversy ‘‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’’. There is but a single matter if different claims arise out of ‘‘common transactions and facts’’ or ‘‘a common substratum of facts’’, notwithstanding that the facts upon which the claims depend ‘‘do not wholly coincide’’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are ‘‘completely disparate’’, ‘‘completely separate and distinct’’ or ‘‘distinct and unrelated’’ are not part of the same matter.
Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.
[19] [1981] HCA 7; (1981) 148 CLR 457 at page 512
[20] [1999] HCA 27; (1999) 198 CLR 511 at [140]- [141] (references omitted)
Third, for the single justiciable controversy to be a “matter” for the purposes of the Constitution, the controversy must be one that is asserted to give rise to a claim or cause of action or defence that arises out of, or whose enforcement or raising, depends on a federal law.
Fourth, a single justiciable controversy will remain a “matter” even though it gives rise to asserted claims or causes of action or defences that do not arise out of, or whose enforcement does not depend on a federal law. Where a matter also gives rise to such non-federal claims or defences, however, the matter is but one matter; and it is a federal matter. That point was made by Barwick CJ in Philip Morris Inc:[21]
Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter. The jurisdiction to do so accrues to the Court because there is a matter, in relation to which federal jurisdiction has been attracted, to be resolved. The jurisdiction thus accrued is itself federal jurisdiction. But, of course, it is limited to the resolution of the matter in relation to which, but not necessarily by which, the federal jurisdiction was attracted in the first instance.
[21] [1981] HCA 7; (1981) 148 CLR 457 at page 474
From these observations, it follows that where the subject matter of a proceeding in this Court is a “matter” – that is, a single justiciable controversy – that consists of a claim made under the FW Act and claims not made under any federal law, the only “matter” that is capable of constituting the subject matter of the proceedings is the “matter” arising under the FW Act. That is so because, in those circumstances, there can only be one “matter”; and the only basis on which the Court can have jurisdiction over non-federal claims that arise in that “matter” is the jurisdiction that is conferred on the Court by s.566 of the FW Act.
It must therefore follow that the proceedings before me – which consisted of Mr Amponsem’s claims under the FW Act, his breach of contract claims, Laundy’s breach of contract claims, and Laundy’s breach of fiduciary duty claims – can only have been proceedings in relation to a matter arising under the FW Act. That means that s.79(1) of the FCC Act applies to prevent the Court from exercising the jurisdiction it would otherwise have had under s.79(2) of the FCC Act to award costs in relation to the Claimed Costs. Section 570 of the FW Act, therefore, as that provision stood at the time Mr Amponsem commenced the proceedings, is the only power pursuant to which the Court may order costs in relation to the Claimed Costs.
Laundy’s submissions
Laundy submitted that the claims it made in its cross-claim did not constitute “proceedings . . . exercising jurisdiction under” the FW Act within the meaning of s.570(1) of the FW Act as it stood at the time Mr Amponsem commenced the proceedings. Whether that is so or not, however, is not to the point. The relevant question is whether s.79(1) of the FCC Act applies to exclude the power the Court would otherwise have under s.79(2) of the FCC Act to award costs in relation to the Claimed Costs.
Laundy relied on the decision of Gyles J in Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance.[22] In that case, the employer commenced proceedings under the Workplace Relations Act 1996 (Cth) (WR Act) claiming that the respondent contravened s.170NC of the WR Act by having engaged in action with intent to coerce the applicant’s employees to vote against a proposed agreement under s.179LK of the WR Act. The applicant later amended the application to add a claim for infringement of copyright under the Copyright Act 1968 (Cth) (Copyright Act) and a claim based on misuse of confidential information against a second respondent. The applicant failed on its claims under the WR Act, but succeeded on its claims for breach of copyright against the second respondent. The applicant applied for an order for costs in relation to its copyright claims, but the second respondent resisted that application by relying on s.347(1) of the WR Act. That subsection provided:
A party to a proceeding . . . in a matter arising under this Act . . . shall not be ordered to pay costs incurred by any other party to the proceeding unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause.
[22] [2004] FCA 637; (2004) 148 FCR 145
Gyles J held that the separate federal claim made against the second respondent was not “a matter arising under” the WR Act. His Honour said:[23]
As counsel for Seven points out, it was necessary that the other claims be brought here in order to avoid an Anshun estoppel. It is certainly desirable in the interests of justice that all questions arising out of the same substratum of fact should be heard together. It is difficult to see why discrete federal claims that are pursued in the one proceeding should be affected by being caught up with a Workplace Relations Act claim even if arising out of the same general course of events.
[23] [2004] FCA 637; (2004) 148 FCR 145 at [60]
Laundy submits there is no reason why Laundy’s claims that are not based on the FW Act should be “caught up” with the FW Act claim.
Seven Network does not assist Laundy. First, Gyles J was not required to construe a provision that was similar to s.79(1) of the FCC Act. Secondly, all the claims that were before the Court in Seven Network were claims made under separate federal laws over each of which the Federal Court had jurisdiction. In that context, it made sense for his Honour to hold that costs incurred in connection with a matter arising under the Copyright Act were not costs that were incurred in connection with a matter arising under the FW Act. The two matters could be seen to be distinct. That possibility, however, is not open for consideration in relation to a “matter” – that is, a single justiciable controversy – that includes both federal and non-federal claims. There can only be one federal matter. Further, his Honour’s noting that he was “not concerned with the accrued or associated jurisdiction” indicates his Honour did not assume that his analysis applied to costs incurred in relation to federal and non-federal claims arising in a single “matter”.[24]
[24] [2004] FCA 637; (2004) 148 FCR 145 at [61]
Laundy also relied on the decision of Judge Cassidy of this Court in Dalglish v MDRN Pty Ltd (No.2).[25] The applicant in that case was unsuccessful in claims made under the FW Act and under the common law. Her Honour found the Court had jurisdiction to award the respondent costs it incurred in relation to the common law claim. The basis of her Honour’s decision was her finding that the common law claim was “a different matter within the proceeding” for the reasons submitted by the respondent.[26] The respondent submitted that the common law claim was distinct from the claims made under the FW Act “such that the Court can conclude that the common law claims made by the Applicant did not involve a proceeding“…in relation to a matter arising under the Act” as provided by” s.570 of the FW Act.[27]
[25] [2014] FCCA 1969; (2014) 287 FLR 227
[26] [2014] FCCA 1969; (2014) 287 FLR 227 at [20]
[27] [2014] FCCA 1969; (2014) 287 FLR 227at [20]
I respectfully disagree with Judge Cassidy’s decision and reasoning in Dalglish. Assuming the common law claim in that case arose out of the same substratum of facts as the claims made under the FW Act, for the reasons I have already given, the common law claims could only have formed part of the one “matter”; and, in the absence of any federal claim other than one made under the FW Act, the only “matter” that was before the Court in Dalglish was the matter arising under the FW Act. The proceedings in Dalglish, therefore, could only have been in relation to a matter arising under the FW Act, notwithstanding the making of the common law claim.
Laundy relies on an additional ground for claiming an order for costs in relation to the Claimed Costs. Laundy submits that the matters that arose under the FW Act were insignificant.[28] The submission is that the Court has jurisdiction under s.79(2) of the FCC Act to make an order for costs in proceedings brought under the FW Act in relation to non-federal claims if the federal claims are insignificant when compared with the non-federal claims. Laundy relies on a passage from the reasons for decision of White J in Stanley v Service to Youth Council Incorporated (No.3).[29]
[28] Respondent’s Outline Of Submissions Regarding Costs, [8]
[29] [2014] FCA 716; (2014) 225 FCR 357
In Stanley, the applicant unsuccessfully brought claims under the FW Act and the Sex Discrimination Act 1984 (Cth) (SD Act). The respondent applied for an order for costs in relation to the costs it incurred in defending the applicant’s claims based on the SD Act. It submitted that s.570 of the FW Act (as it applied after 1 January 2013) did not apply to the costs the applicant incurred in relation to the SD Act. The respondent’s application failed. White J, however, said:[30]
The possibility that a matter arising under the FW Act may be so minor as to be insignificant in comparison with other causes of action does not require consideration in this case.
[30] [2014] FCA 716; (2014) 225 FCR 357 at [33]
This passage goes no further than noting that the possibility to which it refers did not arise for consideration. It does not, therefore, support the proposition for which Laundy contends.
Conclusions and disposition
The Court does not have jurisdiction under s.79(2) of the FCC Act to award costs in relation to the Claimed Costs, that is, the costs Laundy incurred in pursuing the non-federal claims it made in its cross-claim. That is so because the only subject matter of the proceedings brought by Mr Amponsem was the “matter” under the FW Act, even though that matter included non-federal claims. The proceedings, therefore, can only have been proceedings in relation to a matter under the FW Act within the meaning of s.79(1) of the FCC Act.
The only power the Court has to order costs in relation to the Claimed Costs, therefore, is that conferred by s.570 of the FW Act. Because Laundry does not apply for an order for costs under s.570 of the FW Act, its application for costs must, therefore, be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 January 2016
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