Atkinson v Killarney Properties Pty Ltd and Ors (No.2)
[2017] FCCA 1155
•30 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON v KILLARNEY PROPERTIES PTY LTD & ORS (No.2) | [2017] FCCA 1155 |
| Catchwords: PRACTICE AND PROCEDURE – Application for order varying and extending time in an earlier order for filing costs submissions – disparity in earlier order in time granted to file costs submissions – consideration of factors for extending time. |
| Legislation: Fair Work Act 2009 (Cth), s.570(2) |
| Cases cited: Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233 Construction, Forestry, Mining & Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 |
| Applicant: | GARTH PEERS ATKINSON |
| First Respondent: | KILLARNEY PROPERTIES PTY LTD |
| Second Respondent: Third Respondent: Fourth Respondent: | ADRIAN SHANE PALM STEVEN MICHAEL PALM GUISEPENNA MENNA |
| File Number: | PEG 344 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr D Messina |
| Solicitors for the Respondents: | Rowe Bristol Lawyers |
ORDERS
That the date specified in order 3 of the court orders made on 3 March 2017 be changed from 28 May 2017 to 27 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 344 of 2015
| GARTH PEERS ATKINSON |
Applicant
And
| KILLARNEY PROPERTIES PTY LTD |
First Respondent
| ADRIAN SHANE PALM |
Second Respondent
STEVEN MICHAEL PALM
Third Respondent
GUISEPENNA MENNA
Fourth Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)
This is the applicant’s application in a case to vary orders made on 3 March 2017 by extending the time in which to file and serve submissions on costs.
The application in a case arises against the background of a judgment of the Court on 14 December 2016 dismissing an application for extension of time by the applicant which had the effect of disposing of his substantive application and other applications, save as to costs. In Atkinson v Killarney Properties Pty Ltd & Ors [2016] FCCA 3233 at [45]-[46] per Judge Lucev the Court said as follows:
45. The Court has concluded that the Court Order Extension Application ought to be dismissed. It follows that it is unnecessary to make further orders dismissing the Mandatory Extension Application (or the Second Mandatory Extension Application), the Respondent’s Dismissal Application or the Substantive Application: BZABK v Minister for Immigration and Citizenship [2012] FCA 774 [2012] 205 FCR 83 at 43 per Foster J.
46. In relation to costs and bearing in mind the provisions of s.570 (2) of the FW [Fair Work] Act which makes costs in FW Act proceedings in this Court the exception rather than the rule, the Respondents (including Adrian Palm, Steven Palm and Mr [Ms] Menna: see Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962 at [31]- [66] per Judge Lucev) will need to give consideration as to whether a costs application by them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r. 21.02 (1)(a) of the FCC [Federal Circuit Court] Rules, and if any such application is made, the Court will list that costs application for directions.
On 20 December 2016 the respondents made an application for costs, which was listed on 3 March 2017 for a directions hearing. In the course of a very busy directions list on that day, the directions list running from 10.00am till approximately 12.30pm that day, the Court made the following orders:
(1) The applicant file and serve any response and any affidavits in response to the respondents’ affidavit in support of their application for costs pursuant to s.570 of the Fair Work Act 2009 (Cth) by 31 March 2017.
(2) The respondents file and serve an outline of submissions by 14 May 2017.
(3) The applicant file and serve an outline of submissions by 28 May 2017.
(4) The matter be listed for hearing for no more than one hour at 10.15 am on 28 August 2017 with leave to counsel for the respondents to appear by video link.
(5) Costs, if any, of today be reserved.
On a review of the transcript of the 3 March 2017 directions hearing it is plain that the Court gave no directions and no particular consideration to choosing the dates in the 3 March 2017 order or for allowing six weeks after filing of the applicant’s response and affidavits for the filing by the respondents’ of their costs submissions, and only two weeks for the applicant to then file costs submissions. The Court notes that nothing was said at either time by either party about the disparity in the timing of the filing of the costs submissions. Subsequently, the respondents’ filed their submissions on 12 May 2017 and, as the applicant has observed in papers before the Court, they run to approximately 23 pages and 6000 words.
The applicant has filed what is styled or said to be a statement of claim but, in fact, constitutes submissions for today’s purposes, which are relevantly as follows:
(2) On 7 March 2017, the Applicant emailed the Respondents’ solicitor to, inter alia, find out the relevant provisions of the Fair Work Act 2009 that the Respondents intended to use as a legal basis for their application for costs. The solicitor did not reply.
(3) On 28 April 2017, the Applicant informed the Court of the 3 March orders 4 week disparity between the parties and attempted without success to obtain the Respondents’ consent to remove the apparent disparity by amendment.
(4) On 2 May 2017, the Court informed the parties that it did not propose to amend the 3 March orders to remove the 4 week disparity between the parties.
(5) On 12 May 2017 the Respondents filed their outline of submissions for the costs application. The filing of this document marks the first time the Respondents have identified which of the three subsections of section 570 (2) of the Fair Work Act 2009 form the legal basis for their application for costs. The document itself consists of 23 A4 size pages( not including the pro forma first page) and almost 6000 words. The document is one of the largest, if not the actual largest, submissions made by either party at any stage in the proceedings to date.
(6) The Applicant has spent the time since the Respondents filed their outline of submissions familiarising himself with the various legal arguments, case law and assertions put forward in that document. The Applicant is now aware of the significant amount of time that is required for the preparation of his own outline of submissions in order for it to adequately address the Respondents’ case. The Applicant does not believe he can prepare his outline of submissions to the requisite standard in the time afforded him by the 3 March orders.
(7) The extra 4 weeks afforded by the 3 March orders for the preparation of their outline of submissions has enabled the Respondents to submit a larger and more complex case than would otherwise have been possible if they only had 2 weeks for that process. The difficulty the Applicant now faces in having to respond to a larger than otherwise submission is further compounded by having to prepare his response in only one-third of the time that the Respondents were afforded to prepare their submission.
(8) The difficulty caused to the Applicant by the 4 week disparity in the 3 March orders is exacerbated by the Respondents’ deliberate decision to delay disclosing the relevant subsections of section 570 (2) of the Act that their application relies on. That delay made it impossible for the Applicant to be able to prepare prior to 12 May 2017 anything other than a generic, nonspecific defence against all three subsections.
(9) The Applicant has applied to the Court for an order to remove the 4 week disparity between the parties that is currently present in the 3 March orders. The Applicant proposes that order 3 of those orders be amended to allow the Applicant to file his outline of submissions by 27 June 2017. Making that change would afford the Applicant 44 days to prepare his outline of submissions, which is the same number of days given to the Respondents to prepare their outline of submissions. The scheduled date to hear the application for costs would not be changed ( to the best of my understanding).
(10) The Applicant makes this application on the basis that he believes the Court is obliged to ensure that the proceedings are conducted in a way that is fair to both parties. As such, the Applicant believes the Court is compelled to do whatever is necessary to make fair any situation that is identified (by any means) as being unfair to either party.
(11) The Applicant would like this application to be decided promptly because order 3 of the 3 March Court orders currently require the applicant to file his outline of submissions by 28 May 2017 ( i.e., in 11 days time).
It was not possible to deal with the matter more quickly than has been done by reason of the absence of the single judge in the Perth registry of this Court last week.
Rule 3.05 of the Federal Circuit Court Rules 2001 (Cth) provides as follows:
(1) The Court may extend or shorten the time fixed by these rules or by a judgment, decree or order.
(2) A registrar may extend or shorten a time fixed by these rules.
(3) The time fixed may be extended even if the time fixed is passed.
(4) A time fixed by these rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.
The criteria with respect to such an extension of time was set out by this Court in Sims v RM Capital Pty Ltd (No 2) [2015] FCCA 149 at [5] per Judge Lucev as follows:
In the exercise of the Court’s discretion under rule 3.05 of the Federal Circuit Court Rules 2001 (Cth) to extend the time specified in a Court order no criteria for extending the time is set out. This Court’s discretion is, therefore, unfettered but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 334 at 348 and 349 per Wilcox J, namely: (a) that the relevant time limit ought not be lightly ignored,
(b) the length of the delay,
(c) the explanation for the delay,
(d) the prejudice to the other party, and
(e) the prospects of success of the underlying application, with the emphasis generally being on this latter issue.
The Court observes that it is for the Court to weigh the factors and, according to the particular circumstances, one factor may outweigh another: Hawkins v Kingsway Group Limited [2009] FCA 1073 at [5] per Stone J.
In this case, the applicant has not ignored the time limit. The application in a case was filed 10 days before the expiry of the time specified in the Court’s 3 March 2017 orders. There is, therefore, no delay in making the application in a case and the delay or extension sought in which to comply with the Court’s 3 March 2017 orders is a period of slightly in excess of four weeks.
In relation to the explanation for delay the Court notes that the first full explanation of the particular provisions of s.570(2) of the Fair Work Act 2009 (Cth) (“FW Act”) relied upon by the respondents in their application in a case for costs is set out in their 12 May 2017 submissions. The Court notes also that were it not for the fact that the applicant is a self-represented litigant that is a submission which might otherwise be accorded more limited weight than is presently the case.
In relation to consent there is no obligation on the respondents to consent to an order such as that suggested by the applicant, but in the circumstances of this case, with a hearing some months away at the time the request was first made and with the applicant a self-represented litigant and with the disparity in the time-frames evident, a consent order or consent to an extension of time as sought by the applicant might be seen to have been appropriate on the part of the respondents. The Court notes that there was correspondence directed to it seeking an amendment to the time-frame set out in the 3 March 2017 order, but, without consent, in order to afford procedural fairness to all parties the Court needs an application in a case before it can amend orders.
The Court observes that the costs submissions made by the respondent are lengthy and demonstrate the thought and effort expended by the respondents’ lawyers in their preparation. That entails no criticism of them for doing so. It is perhaps unsurprising that they have done so, given the background to this litigation and the reasons set out by the Court in Atkinson (No 1). It does mean, however, that the applicant was faced with a not inconsiderable submission of some substance and a relatively short time-frame within which to deal with those submissions.
The Court gives little or no weight to the suggestion by the applicant that the respondents’ costs submissions are longer and more complex by reason of the additional time that they had to prepare them The nature of the respondents’ submissions throughout this case would indicate to the Court that it is unlikely the respondents’ costs submissions would have been any different had the respondent been afforded two weeks rather than six to prepare them.
The applicant submits that the time disparity is unfair and that the Court must correct any perceived unfairness. The Court is not persuaded that “any disparity” – with the emphasis on “any” – in time-frames is necessarily unfair, but as the Court noted in exchanges with the parties in submissions, there is in this case quite a marked disparity in the time-frames. As the Court again indicated in exchange with counsel for the respondents, in announcing the dates on 3 March 2017 in the course of a busy directions list, no particular consideration was given by the Court as to the dates or possible effect on the applicant of a disparity in the time for preparation of the costs submissions.
It is not surprising that the applicant as a self-represented litigant in the course of a busy directions list on 3 March 2017 did not have the wherewithal to ask for or dispute the times which were ordered by the Court. The Court can say that, had the applicant done so, the Court would have granted equal time or relatively so, bearing in mind that in the circumstances of this case there would have still been ample time for the filing of the costs submissions prior to the hearing of the application in a case with respect to costs listed for 28 August 2017. There is therefore some merit in the applicant’s submissions that because the respondents’ costs submissions are relatively long and complex, that as a self-represented litigant he ought to be afforded more time to deal with them. The same might not follow for lawyers.
The Court eschews notions that, firstly, time ought to be equal on all occasions or, secondly, unequal time is not fair. But, on this occasion, the disparity in time taken together with the length and complexity of the respondents’ costs submissions and the likelihood that further time would have been afforded to the self-represented applicant had it been asked for at the directions hearing on 3 March 2017 mean that there is a satisfactory explanation for the extension sought, and in the Court’s view, the interests of justice are better served by an extension of time in which to allow the applicant to make his costs submission.
In relation to prejudice the Court takes the view that it is not the case that the respondents will be prejudiced if the applicant is granted an extension of time in which to file or if the orders are varied to allow the applicant an extension of time in which to file his costs submissions. The respondents are well represented and will have ample time to consider any necessary oral response to the applicant’s written submissions. The greater prejudice would, in the Court’s view, be for the applicant to be forced to make submissions within the time presented prescribed by the 3 March 2017 orders, essentially for the reasons which are otherwise dealt with above.
In terms of prospects of success, because orders under s.570(2) of the FW Act for costs are very much the exception rather than the rule: Construction, Forestry, Mining & Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[29] per Tamberlin, Gyles and Gilmour JJ, it is fair to observe that the applicant must stand some prospects of success in resisting the respondents’ application for costs: prospects of success in the context of an interlocutory application for an extension of time being different to an assessment of the merit of the application for the purposes of final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158). That observation can be made without the benefit of detailed written or oral submissions from the applicant as to the merit of his opposition to the respondents’ cost application.
Having regard to all of the circumstances and having weighed the relevant factors, the Court considers it is appropriate to vary the orders of 3 March 2017 to extend time for the applicant to make his costs submissions on the respondents’ application in a case for costs and to do so in terms of the orders sought by the applicant in his application in a case filed 18 May 2017. There will be an order accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 7 June 2017
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