Anning v Western Sydney University (No.3)
[2019] FCCA 3344
•27 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNING v WESTERN SYDNEY UNIVERSITY (No.3) | [2019] FCCA 3344 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – costs – whether failure to accept offer made in notice to offer to compromise unreasonable – relevant considerations. COSTS – Respondent’s notice of offer to compromise – application dismissed – whether failure to accept offer was unreasonable – relevant considerations. |
| Legislation: Fair Work Act 2009, ss. 340, 570 Racial Discrimination Act 1975 Federal Circuit Court of Australia Act 1999, s.79 Australian Human Rights Commission Act 1986, s.46PSA Human Rights Legislation Amendment Act 2017, s.2, items 57, 58 of sch.2 Workplace Relations Act 1996 Federal Court Rules 2011, rr.25.01, 25.02, 25.03, 25.04, 25.05, 25.06, 25.10, 25.11, 25.12, 25.14 Federal Circuit Court Rules 2001, rr.1.03, 1.05, 2.05, 6.12, 21.02, 21.09, 21.10, 21.11, sch.3 items 14, 15 and 16 |
| Anning v Western Sydney University (No 2) [2019] FCCA 1313 |
| Applicant: | BERICE ANNING |
| Respondent: | WESTERN SYDNEY UNIVERSITY |
| File Number: | SYG 1444 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 14 August 2019 |
| Date of Last Submission: | 14 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Thomson Geer |
ORDERS
The respondent have leave to apply for an order for costs.
Apart from the costs ordered on 26 July 2017, the applicant pay the respondent’s costs on an indemnity basis from 17 November 2016, as agreed or taxed in accordance with the Federal Court Rules 2011.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1444 of 2015
| BERICE ANNING |
Applicant
And
| WESTERN SYDNEY UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
INTRODUCTION
In this proceeding the applicant, Dr Anning, alleged that her former employer, the respondent Western Sydney University (“University”), had contravened provisions of the Fair Work Act 2009 (“FW Act”) (“FW Issue”), the Racial Discrimination Act 1975 (“RD Act”) (“RD Issue”) and had breached her contract of employment with it (“Contract Issue”). On 21 May 2019 the application was dismissed: Anning v Western Sydney University (No. 2) [2019] FCCA 1313 (“Second Judgment”).
The University has now made an application for its costs of the proceeding. In its application for costs it has sought the following orders:
Subject to other orders for costs already made in the proceeding:
1.An order pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 and section 570 of the Fair Work Act 2009 (Cth) that the Applicant pay the Respondent's costs in the proceeding as follows:
(a)50% of the Respondent's costs as agreed or taxed for the period from the commencement of the proceeding up to and including 17 November 2016; and
(b)all of the Respondent's costs on an indemnity basis for the period after 17 November 2016.
2.In the alternative to Order 1, an order pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 that the Applicant pay 50% of the Respondent's costs in the proceeding as agreed or taxed.
The application for costs was made one day out of time and the University has sought leave to apply for costs notwithstanding.
One costs order has already been made in this case. On 26 July 2017 Dr Anning was ordered to pay the University’s costs thrown away by reason of an adjournment she requested. Those costs were quantified at $8,000.
RELEVANT LEGISLATION
Power to award costs
Section 79 of the Federal Circuit Court of Australia Act 1999 (“FCC Act”) empowers the Court to award costs in proceedings other than, relevantly, proceedings under the FW Act.
Section 570 of the FW Act 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:
…
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs …
Applications for costs
Rule 21.02 of the Federal Circuit Court Rules 2001 (“Rules”) relevantly provides:
21.02 Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
…
Rule 2.05 of the Rules relevantly provides:
2.05 How documents may be filed
(1) A document may be filed by:
(a) delivering it to the registry; or
(b) sending it to the registry by post; or
(c)fax or electronic communication, as permitted by this Division.
…
(3)However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a)if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; and
(b)in any other case—on the next day the Registry is open for business.
Notices of offer to compromise
Rules 25.01-25.06, 25.10-25.12 and 25.14 of the Federal Court Rules 2011 (“Federal Court Rules”) apply to proceedings in this Court by virtue of r.1.05(3)(b) and items 14, 15 and 16 of pt.2 of sch.3 to the Rules.
The Federal Court Rules provide for the service of notices of offer to compromise and how they may be drawn. They also relevantly provide:
25.14 Costs where offer not accepted
…
(2)If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:
(a)before 11.00 am on the second business day after the offer was served—on a party and party basis; and
(b)after the time mentioned in paragraph (a)—on an indemnity basis.
…
Litigants’ obligations
Rule 1.03 of the Rules relevantly provides:
1.03 Objects
(1)The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
…
(4) To assist the Court, the parties must:
• avoid undue delay, expense and technicality
• consider options for primary dispute resolution as early as possible.
Quantification of costs
Rules 21.09, 21.10 and 21.11 of the Rules provide for assessment of costs by reference to the scale in the Rules or taxation under the Federal Court Rules.
EVIDENCE AND SUBMISSIONS
Respondent
The University relied on the affidavit of its solicitor, Mr Corlett, sworn on 28 June 2019. Mr Corlett deposed that affidavits made by the following witnesses were filed and served in mid-2017:
a)Kerri-Lee Dawn Krause, principal affidavit sworn 30 June 2017 and supplementary affidavit sworn 12 July 2017;
b)Rhonda Claire Hawkins, principal affidavit sworn 29 June 2017 and supplementary affidavit sworn 13 July 2017;
c)Karen Diane Ardouin, affidavit affirmed 16 June 2017;
d)Kenneth William Hodson, affidavit sworn 5 June 2017; and
e)Kevin Scott Holmes, principal affidavit affirmed 31 May 2017 and supplementary affidavit affirmed 12 July 2017.
The relevance of this information was said to be that those witnesses addressed the RD Issue as well as the FW Issue.
In a further affidavit sworn 18 June 2019 Mr Corlett relevantly deposed that:
a)on 28 October 2016 the University served on Dr Anning a notice of offer to compromise which offered to pay her $50,000 inclusive of costs on the basis that the proceeding was dismissed; but
b)on 17 November 2016 Dr Anning rejected that offer.
Mr Corlett deposed:
Given my involvement in the proceeding, including my involvement in the preparation of WSU's evidence, I consider that it is appropriate to apportion WSU's costs at approximately 50 per cent for the allegations of contravention of the FW Act on the one hand, and 50 per cent for allegations of contravention of the RD Act and breach of contract on the other hand.
The University submitted that to the extent that s.570 of the FW Act did not apply to the litigation of the RD Issue, it was entitled to its costs of that part of the proceeding according to ordinary principles as affected by s.46PSA of the Australian Human Rights Commission Act 1986 (“AHRC Act”). It also submitted that, to the extent s 570 of the FW Act did apply to the costs of the proceeding, Dr Anning had, by unreasonable act or omission, caused it to incur costs by rejecting a reasonable offer of settlement. In that regard the University said in its written submissions:
On 28 October 2016, the respondent served a notice of office of [sic] compromise on the applicant to settle that claim on the basis that the respondent pay the applicant the amount of $50,000 in respect of the claim inclusive of costs. This amount was not tokenistic and was made at an early stage in proceedings. On 17 November 2016, the applicant rejected the notice of offer to compromise on the basis that it did not cover her claim in its entirety, it was not genuine and was unreasonable and that she wished to have public vindication of her claim. The applicant did not explain her reasons for rejection in any further detail.
The University contended in that connection that it must have been apparent to Dr Anning from the outset that her claims were, as was found in the Second Judgment, characterised by supposition and by hypotheses which were not well-founded in fact. It argued that given the parties’ obligation under r.1.03(4) of the Rules to facilitate the just resolution of disputes by avoiding undue delay, expense and technicality, Dr Anning had acted unreasonably in rejecting the offer.
The University submitted that it was entitled to its costs assessed on an indemnity basis after 17 November 2016 or at least on a party-party basis from that point.
Applicant
In her affidavit affirmed 15 July 2019, Dr Anning contended that the University’s application for cost was out of time as the Second Judgment was delivered on 21 May 2019 and the instant application in a case was not filed until 19 June 2019. In that connection she referred to r.21.02(1)(b) of the Rules which provides that applications for costs are to be made within 28 days of a final order.
In that affidavit Dr Anning relevantly deposed that she did not accept the University’s offer as she:
… believed her general protections and human rights / racial discrimination claims had reasonable cause to be successful; that the claims were vindicated in the public interest; and that the offer was not a genuine compromise.
In her affidavit, in what was in reality a submission, Dr Anning said:
It is said in case law that the policy behind s 570 of the Fair Work Act 2009 is to ensure that the costs being awarded if a claim is unsuccessful does not loom large in the mind of potential applicants that those with genuine grievances and an arguable evidentiary and legal basis for them are put of commencing or continuing proceedings. It is an access to justice provision … (errors in original)
She continued:
… the Applicant had genuine grievances of general protections breaches with dismissal / contract breaches and racial discrimination; the Applicant's claims did not lack an arguable evidentiary basis to make the institution of the proceedings; and the claims were instituted with reasonable cause.
Dr Anning submitted that her conduct in the proceeding had not been unreasonable or an abuse of process, that she had acted in good faith, had been sincere and honest and that her claims had not been vexatious or frivolous. She deposed to her view that her claims had had a reasonable basis and substantial prospects of success. In support of that contention she submitted:
(a)Despite the letter of 20 December 2013 that the Applicant provided to Rhonda Hawkins, regarding the allegations of serious misconduct for a number of first class travel tickets, paragraphs 141 to 142 of the judgment found that there were no first class tickets. Therefore, the Applicant's responses to those large number of allegations confirmed there was no serious misconduct breaches with regards to paragraph 37 (a) and (c) of the Applicant's Points of Claim for proceeding SYG1444/2015.
(b)The Respondent had this information confirmed by their internal investigators in the Office of Audit and Risk Assessment, as early as 27 February 2014, but only provided this confirmed information to the Applicant on 30 June 2017, which was more than 4.5 years after the allegation was confirmed to be false. That is, the Respondent at no time after 20 December 2013, provided the Applicant with the evidence they presented in the Affidavit of Rhonda Hawkins on 30 June 2017 that proved the allegations against the Applicant of providing a student with first class tickets, were false.
(c)The Applicant's claim of racial discrimination regarding the position noted in the Applicant's Points of Claim, paragraphs 69 to 74 and 99 (e) of the Applicant' s Points of Claim for proceeding SYG1444/2015; and in paragraph 235 of the 21 May judgment of Judge Cameron.
(d)The Respondent placed the Applicant at a severe disadvantage by not providing the Applicant with a copy of the Workdynamic Report of December 2014 and the Davis Report of May 2013; particularly before a final determination was made/stated in a letter dated 15 January 2014; and the continued denial of access to these reports from January 2015 to about early July 2017; as detailed in the Applicant's Points of Claims at paragraphs 79 to81 [sic] The access to the allegations and investigation reports was granted to the Applicant, but only to be viewed by the Applicant at odd/short timeframes during the proceeding from about 17 July to 7 August 2017. This was not sufficient time, based on the large number of allegations and subsequent alleged breaches of policies that was served on the Applicant on 18 November 2013. Hence, it denied the Applicant the opportunity to provide evidence that would have rejected all of the final determination outcomes of 15 January 2015.
Dr Anning implicitly submitted that it was not unreasonable of her to have rejected the University’s offer because the offer had not stated:
•why [her] claim would not succeed at hearing;
•that the Respondent would rely upon non-acceptance of the offer as justifying a claim to indemnity costs from the date the offer expired;
•that the offer would be relied upon in support of an ‘application for costs’; or
•what rules in relation to costs it relied upon.
Dr Anning argued that the Court had not found that her claims were:
a)so obviously untenable they could not succeed;
b)manifestly groundless; or
c)disclosed a case which the Court was satisfied could not succeed.
She also submitted that there were no “exceptional circumstances”, which would warrant departing from the general rule under the FW Act that each party bear their own costs.
CONSIDERATION
Leave to apply
The University’s application in a case seeking costs of the proceeding was filed at 6.14 pm on 18 June 2019 and so is taken to have been filed on 19 June 2019. Dr Anning opposed leave being granted to the University to make its costs application but when queried could identify no prejudice suffered by her as a result of the late filing of the application in a case. Similarly, the University did not seek to explain why the application in a case was filed late.
Notwithstanding the absence of an explanation for the late filing, the justice of the situation lies in favour of granting the leave the University has sought. The case was a long one and was clearly expensive to defend and the application for costs was filed only two and a quarter hours late.
On balance I find that the University should have leave to make its application for costs.
Costs
In the parties’ written submissions and at the hearing of the present application, reference was made to s.46PSA of the AHRC Act but that provision is not relevant to this proceeding because it does not apply to matters which commenced before 13 April 2017 or in which the antecedent complaint to the Australian Human Rights Commission (“AHRC”) was made before 13 April 2017: s.2(1), items 57 and 58(9) of sch.2, Human Rights Legislation Amendment Act 2017. This proceeding was commenced and the antecedent complaint was made to the AHRC before that date.
In any event, the effect of s.570 of the FW Act in this proceeding, where the breaches alleged in connection with the RD Issue and contraventions alleged in connection with the FW Issue were interrelated, is that that section applies to the whole case, not just to the allegations made under the FW Act. In that regard, in Stanley v Service to Youth Council Incorporated (No 3) (2014) 225 FCR 357 White J held that in a proceeding where there are claims under the FW Act and related claims under a different Commonwealth Act, s.570 of the FW Act applies to the whole of the proceeding:
Provided that it can be said that the proceedings relate to matters arising under the FW Act, the costs limitation is applicable even if they include other claims. (at 364 [36])
His Honour’s reasoning has enjoyed the approval of the Full Court of the Federal Court in Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 and in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd(No 2) (2015) 235 FCR 366 and of Mortimer J in Ryan v Primesafe (2015) 323 ALR 107 at 122 [61]-[62].
That being so, whether costs, including any costs of the litigation of the RD Issue, are to be ordered will be determined by reference to the tests found in s.570 of the FW Act. As the University did not contend that it was entitled under s.570 to costs incurred in the period before the notice of offer to compromise, it is not necessary to consider the possibility that it might be.
The question consequently becomes whether Dr Anning acted unreasonably in rejecting the offer made in the notice of offer to compromise. It can be accepted without further discussion that refusal of the offer led to the University incurring costs in respect of which it now seeks an indemnifying order from the Court.
If the Court finds that the rejection of the offer was unreasonable, not only will the Court’s power to order costs under s.570 of the FW Act be engaged but so will r.25.14 of the Federal Court Rules such that the University will be entitled to an order for costs on an indemnity basis from 11.00 am on the second business day after the offer was served. I find, based on Mr Corlett’s affidavit and r.6.12 of the Rules, that the notice of offer to compromise was served on 31 October 2016 and so, further, that any costs entitlement would cover costs incurred after 11.00am on 2 November 2016. Nonetheless, the order sought was for costs from 17 November 2016 and it will be to that date that regard will be had.
The discretion to order costs under s.570 of the FW Act must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8].
In Ryan v Primesafe (2015) 323 ALR 107 Mortimer J discussed considerations which may be taken into account when an applicant is unsuccessful in a FW Act proceeding after having rejected an offer made in accordance with the principle in Calderbank v Calderbank [1976] Fam 93 and the Court is called on to determine:
a)whether costs should be ordered under the FW Act and, if so,
b)whether any such costs should be assessed on a basis other than the party and party basis.
Although in other circumstances too close an analogy should not be drawn between the consequences of the rejection of a Calderbank offer and the consequences of a rejection of a notice of offer to compromise, in the present circumstances, where s.570 of the FW Act applies and governs the availability of costs by reference to questions of unreasonableness, Mortimer J’s reasons are, with respect, relevant. Largely repeating what I said in Carr v ILSC (Brisbane) Pty Ltd (No 2) [2019] FCCA 1028 at [18], drawing on her Honour’s reasoning concerning the engagement of s.570(2)(b) (“the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs”) and incorporating adjustments to reflect this Court’s statute and rules, considerations relevant to this case may be summarised as:
a)parties before the Court have an obligation to facilitate the just resolution of disputes by avoiding undue delay, expense and technicality (r.1.03(4) of the Rules);
b)the legislative policy behind a provision such as s.570(1) is not inconsistent with requirements that proceedings be conducted reasonably, fairly and efficiently. As an access to justice provision, s.570 contemplates that parties and their legal representatives will access the Court responsibly;
c)when exercising its costs discretion, the Court must take into account failure by the relevant party to comply with the duty to avoid undue delay, expense and technicality;
d)the limitations and conditions which are respectively imposed on the Court’s general costs discretion by s.79(1) of the FCC Act and by s.570 of the FW Act are not a licence to parties to ignore the requirements of r.1.03(4) or the Court’s power under rr.21.09, 21.10 and 21.11 to order costs against parties who fail to comply with such obligations;
e)the content of r.1.03(4) and parties’ obligations under it must be reconciled with access to justice provisions such as s.570(1). Justice Mortimer described the process of reconciliation in the following terms:
That reconciliation occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put. (at 123 [66]); and
f)although s.570(1) of the FW Act constrains the Court’s power to order costs against a party and s.570(2) directs attention to the conduct of a party, neither purports to affect the Court’s power to order costs in accordance with the Rules which is engaged once the Court has formed the view that there should be an order under s.570 that one party pay the costs of another.
As to what amounts to an unreasonable act or omission, speaking in the context of the Workplace Relations Act 1996 (“WR Act”) the Full Court of the Federal Court said in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574:
… The exception [to the requirement that costs orders are not to be made] applies when two criteria are satisfied. The first criterion is that one party must have engaged in “an unreasonable act or omission”. As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have “caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.
… As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable: Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. … [W]hile courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best. (at 582 [28], [29])
Also speaking in the context of the WR Act, in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 Tracey J said:
… The prosecution of any incompetent or hopeless case can be regarded as “an unreasonable act” within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. (at 402 [36])
Justice Lockhart had said in connection with earlier legislation, in Standish v University of Tasmania (1989) 28 IR 129 at 138:
There remains the question of costs. Section 347 of the Industrial Relations Act 1988 provides as follows:
“347(1)A party to a proceeding (including an appeal) 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. …”
…
The application before this Court for interpretation of the award is incompetent. As no question of interpretation of the award arises there is no doubt as to the correct interpretation. The real orders sought by Professor Standish are to obtain further and better particulars of allegations made against him. This is not a matter that answers the description of a question of interpretation of the award or anything incidental to it. Although there is a proceeding before the court, it is not a proceeding which answers the description of “a proceeding . . . in a matter arising under this Act” within the meaning of s 347 of the Industrial Relations Act 1988. As to the expression “matter arising under this Act” see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 per McHugh JA at 421-4.
It follows that s 347 is inapplicable to this case. In my opinion the costs should follow the event. The applicants must pay the costs of the respondent of this proceeding.
Turning to the present case, in summary, it was found in the Second Judgment that:
a)Dr Anning had failed to demonstrate other than in the most rudimentary manner how, at the conclusion of her term as Dean of the University’s Badanami Centre, her substantive position’s duties were different in substance from what they had been three years earlier;
b)the allegation that the University had breached s.340 of the FW Act by failing to extend Dr Anning’s contract as Dean (“Dean Contract”) or by failing to consider extending her tenure as Dean was misconceived;
c)the allegation that the University had maintained disciplinary action against Dr Anning following her return from suspension on 1 May 2014 was also misconceived because the only disciplinary action that was taken was a formal warning given in January 2015;
d)not providing Dr Anning with the WorkDynamic report, something which she had never had and which had never been promised to her, could not have amounted to adverse action;
e)for the same reason, failing to provide Dr Anning with the opportunity to apply for, to be considered for, or to invite her to apply for, the role of Acting Associate Director (Administration and Student Services) could not have amounted to adverse action;
f)the allegation that the University had failed to take into consideration the evidence and submissions given by Dr Anning in response to the allegations of misconduct was conjecture on Dr Anning’s part and not supported by the evidence;
g)the allegations of involuntary redundancy were at least misconceived because Dr Anning had herself sought redundancy from the University and the abolition of her position was the result of her own actions, not the University’s plans;
h)similarly the allegation that the University had failed to consult with Dr Anning before abolishing her position was quite wrong and, as the evidence demonstrated, occurred as a result of Dr Anning’s own actions;
i)the termination of Dr Anning’s employment occurred as a result of her own request for redundancy notwithstanding that it was alleged to be the basis of a claim of adverse action;
j)contrary to Dr Anning’s allegation, the review into her conduct was covered by the Dean Contract not either of the two potentially relevant enterprise agreements;
k)the allegation that the University failed to give Dr Anning ten working days to respond to any formal allegations put to her was objectively false;
l)the allegation that the University had failed to consult with Dr Anning before making her position redundant was similarly objectively false and was described in the Second Judgment as “extraordinary”;
m)in alleging that she had been denied outplacement services Dr Anning did not attempt to show that she had been entitled to them;
n)there was no need for the University to have considered Dr Anning for the role as Acting Associate Director (Administration and Student Services) because it was not being filled in a permanent way but only temporarily;
o)Dr Anning’s allegations of racial discrimination were conjectural. There was no basis for them;
p)the appointment of Professor Krause to act as Dean of the University’s Badanami Centre did not breach any duty owed to Dr Anning;
q)when alleging that she had, contrary to the RD Act, been discriminated against by being expected to do excessive work, Dr Anning’s evidence of what she “actually did from time to time in her employment as Dean was sparse and no evidence was adduced of what work and work output was expected of the other academics to whom this allegation” referred, which meant that the allegation could not have been made out;
r)the allegation concerning the funding of the Badanami Centre was unsupported by expert accounting evidence and was logically flawed;
s)Dr Anning’s allegations that an “unreasonable requirement” had been imposed on her were discursive and unclear and she did not identify any particular, unreasonable requirement or any occasion on which an unreasonable requirement had expressly been imposed on her by the University. Further, she did not explain how and to what extent she failed to comply with the postulated unreasonable requirement or had been incapable of complying with it;
t)the Dean Contract did not contain the implied terms Dr Anning said it did;
u)no evidence of the hours Dr Anning worked was adduced to support the allegation that she had worked excessive hours in breach of the Dean Contract; and
v)Dr Anning failed to show that that the duties she performed following her return to her substantive position after she ceased to be the Dean were so different from what she had done previously or so inconsistent with her role that the University’s assumed expectation that she would perform them amounted to a breach of the Dean Contract.
In most respects the case advanced by Dr Anning was hopeless because it misunderstood the facts or the law or was conjectural. More serious, however, were her allegations concerning the manner of the termination of her employment. The implication of Dr Anning’s case was, relevantly, that she had been made redundant against her will. However, the evidence made it plain that it came about as a result of her own request. It was assumed in the Second Judgment that Dr Anning laboured under a mistaken understanding of what amounted to the redundancy of her substantive position but it was nevertheless she who sought the abolition of the position and then declined the opportunity to be considered for redeployment.
Despite the amount of material which was presented in its support, Dr Anning’s case essentially lacked a substantive core and evidentiary support and so could not succeed. At the time the offer to compromise was made, a critical assessment by Dr Anning of her case would have shown that her chances of success were nugatory.
The prosecution of an incompetent or hopeless case can be regarded as an unreasonable act within the meaning of s.570 of the FW Act and, under r.25.14 of the Federal Court Rules, as an unreasonable failure to accept an offer to compromise if persisted in despite receipt of an offer to compromise which is real and not tokenistic. In the circumstances, particularly where Dr Anning was unrepresented, the University’s offer to pay $50,000 was a real and not a token offer. I find that it was unreasonable of Dr Anning to not have accepted it and to have persisted with the litigation. Consequently, the tests under s.570 and r.25.14 have been satisfied.
CONCLUSION
Dr Anning will be ordered to pay the University’s costs on an indemnity basis from the date proposed by the University, 17 November 2016, but subject to allowance being given for the costs ordered on 26 July 2017.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 27 November 2019
CORRECTIONS
The delivery date on page 2 has been changed from 25 November 2019 to 27 November 2019.
The words “to the costs made” in para.45 has been changed to “for the costs ordered”.
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