FEDERAL COURT OF AUSTRALIA
BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347
File number(s): NSD 290 of 2021 Judgment of: HALLEY J Date of judgment: 2 November 2021 Catchwords: COSTS – where respondent gave notice of intention to file interlocutory application in relation to statement of claim – where applicant gave no indication of intention to amend statement of claim – where respondent subsequently filed interlocutory application and supporting affidavit, and applicant then served an amended statement of claim – application of 18(2)(b) of the Public Interest Disclosure Act 2013 (Cth) – whether any act or omission of the applicant was unreasonable and caused the respondent to incur costs – where applicant’s conduct not sufficiently unreasonable – where costs thrown away cannot be calculated with precision – no order as to costs Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) s 37M
Parliamentary Privileges Act 1987 (Cth)
Public Interest Disclosure Act 2013 (Cth) s 18
Revised Explanatory Memorandum, Public Interest Disclosure Bill 2013 (Cth)
Cases cited: Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 2) [2020] FCA 348
Fair Work Ombudsman v Grouped Property Services Pty Ltd(No 3) [2017] FCA 810
Hutchinson v Comcare (No 2) [2017] FCA 370
Hutchinson v Comcare (No 5) [2019] FCA 1665
Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 50 Date of hearing: Determined on the papers Counsel for the Applicant: The Applicant was self-represented Counsel for the Respondent: Ms Z Heger Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 290 of 2021 BETWEEN: BDR21
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION ABN 52 429 278 345
Respondent
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.There be no order as to costs in relation to the interlocutory application dated 25 June 2021 or the service of the Amended Statement of Claim on 15 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J:
Introduction
On 17 August 2021, I made orders striking out paragraphs and for summary judgment with respect to causes of action sought to be advanced by the applicant in an amended statement of claim (ASOC). I also made orders on that date providing that in the absence of a consent position, the parties file written submissions with respect to the payment of costs and any evidence in support, and the issue of costs would then be determined on the papers unless either party sought an oral hearing.
The parties have now filed written submissions on costs.
The…
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- Case
- [2021] FCA 1347
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the applicant's actions amounted to unreasonable conduct that caused the respondent to incur avoidable costs. The respondent argued that the applicant's delay in notifying them of the decision to amend the statement of claim, coupled with their earlier assertion that no amendment was forthcoming, led to wasted costs. However, the court found that the applicant's conduct, while inefficient and potentially misguided, did not reach the level of unreasonableness required under the statute. The relatively novel issues raised in the respondent's letter, the complexity of the original statement of claim, and the fact that the applicant was a litigant in person were all factors that mitigated against a finding of unreasonableness. The court emphasised that while the applicant's delay might be characterised as conducting litigation inefficiently, it did not equate to the type of egregious conduct that would justify a costs order.
The court's reasoning led to the conclusion that the applicant's conduct, although inefficient and resulting in wasted costs, did not constitute the sort of unreasonable behaviour that would warrant a costs order under section 18(2)(b) of the Act. The imprecision in quantifying the costs thrown away further supported the decision not to make a costs order. Therefore, the court ruled that no order should be made as to costs in relation to the interlocutory application or the service of the amended statement of claim.
In summary, the court held that while the applicant's conduct might have been inefficient, it did not meet the threshold of unreasonableness necessary to justify a costs order under the relevant statutory provision. The court's decision was grounded in the specific circumstances of the case, including the complexity of the issues and the status of the applicant as a litigant in person.
Orders
Orders of the court
1. There be no order as to costs in relation to the interlocutory application dated 25 June 2021 or the service of the Amended Statement of Claim on 15 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In its reply submissions, the respondent submits that it is not suggested that the applicant should have amended the SOC immediately on receiving the 1 June 2021 letter, observing:Rather, the unreasonable conduct which caused the respondent to incur costs unnecessarily was the fact that the applicant informed the respondent on 5 June 2021 that they did not intend to amend the Statement of Claim and then, 10 days later and without notice, served an Amended Statement of Claim which attempted to address the very matters raised in the 1 June 2021 letter. In the meantime, the respondent had incurred costs in preparing an interlocutory application, supporting evidence, and submissions responding to the original Statement of Claim, some of which were wasted.Consideration I accept that the respondent incurred costs by reason of the applicant’s 5 June 2021 response that were ultimately thrown away by reason of the subsequent decision of the applicant to serve the ASOC and the applicant’s delay in informing the respondent of their decision to amend the SOC. The critical question is not when the ASOC was provided but when notice was given of the decision to amend the SOC to seek to address the matters raised in the 1 June 2021 letter. A legal practitioner could readily be expected to have appreciated that any delay in providing notice of an intention to provide an amended pleading, particularly in circumstances where an opponent had earlier been advised that it was not proposed to amend the pleading, would likely lead to costs being unnecessarily incurred. On balance, I consider that the “unreasonableness” of the conduct of the applicant complained of by the respondent fell between the impugned conduct that gave rise to the costs orders under the equivalent provisions of the FW Act in Grouped Property Services, Foot & Thai Massage and Tucker (at [38], [42] and [44]) and the impugned conduct that was not held to enliven s 570(2)(b) in Tucker (at [34]) and Tran. The change in position of the applicant between their 5 June 2021 response and the service of the ASOC on 15 June 2021 might well be fairly characterised as conducting litigation inefficiently, making belated concessions, or adopting a misguided approach. Each of these matters may be relevant to but, as explained above, not conclusive of, the question of unreasonableness: Mutch at [8]; Clarke at [29]; Comcare No 2 at [8]; Tucker at [32(h)]. However, as I have previously found, the matters raised in the 1 June 2021 letter were relatively novel, the SOC was lengthy and the applicant was a litigant in person. The time taken by the applicant to recognise that it was necessary to prepare an amended statement of claim and to prepare the amended pleading to address the issues in the 1 June 2021 letter was not disproportionate for a litigant in person or otherwise inconsistent with the overarching purpose of civil practice and procedure. The notice of the decision to seek to rely on the ASOC was ultimately provided to the respondent before the commencement of business on the day prior to the date on which the respondents’ submissions were due to be filed (effectively providing two business days’ notice).