Beggs v Login Systems Pty LD (No.2) - [2013] FCCA 1761

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGGS v LOGIN SYSTEMS PTY LD (No.2)

[2013] FCCA 1761

Catchwords:
INDUSTRIAL LAW – Costs – substantive application dismissed for want of jurisdiction – whether application unreasonable.

Legislation:
Fair Work Act 2009, ss.369, 569, 569A, 570, 723, 725, 777

Cases cited:
Beggs v Login Systems Pty Ltd [2013] FCCA 526
Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94; [2012] FMCA 518
Hobson v BWL Pty Ltd (No.3) (2012) 263 FLR 76; (2012) 222 IR 48; [2012] FMCA 439
Hughes v Mainrange Corporation Pty Ltd (No.2) (2009) 190 IR 351; [2009] FMCA 1044
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; (2009) 190 IR 207; [2009] FMCA 102

Applicant:

SHANE PETER BEGGS

Respondent:

File number:

MLG 396 of 2013

Judgment of:

Judge Riley

Hearing date:

23 October 2013

Date of last submission:

23 October 2013

Delivered at:

Melbourne

Delivered on:

1 November 2013

REPRESENTATION

Counsel for the Applicant:

James Hooper

Solicitors for the Applicant:

Alpass & Associates

Counsel for the Respondent:

Tim Donaghey

Solicitors for the Respondent:

McMasters’ Solicitors

ORDERS

The respondent’s application for costs be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 396 of 2013

SHANE PETER BEGGS

Applicant

And

LOGIN SYSTEMS PTY LTD (ACN 006 170 252)

Respondent

REASONS FOR JUDGMENT

This is an application for costs brought by the respondent. The substantive proceeding was determined in Beggs v Login Systems Pty Ltd [2013] FCCA 526.
In that case, the applicant acknowledged that he had filed in this court an unlawful termination application when he ought to filed a general protections application. The respondent filed an application in a case seeking that the substantive application be dismissed for want of jurisdiction. The applicant filed an application in the case seeking leave to amend the substantive application to make it a general protections claim or in the alternative seeking an adjournment to allow the applicant to obtain the appropriate certificate from the Fair Work Commission to enable a general protections claim to be brought.
Ultimately, the court held that neither of the courses proposed by the applicant were available and dismissed the applicant’s application in a case and the substantive proceeding.
The respondent now seeks the costs of:
a)the substantive application filed on 27 March 2013, but only after 8 April 2013;
b)the respondent’s application in a case filed on 24 April 2013; and
c)the applicant’s application in a case filed on 3 May 2013.
The reason that the respondent seeks the costs of the substantive application only after 8 April 2013 is that it was on that date that the respondent outlined in writing to the applicant the reasons that his application was, arguably, bound to fail.
The respondent's application in a case and the applicant’s application in a case were heard together.
The parties were in agreement that the costs application is governed by s.570 of the Fair Work Act 2009. That section is as follows:
(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.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2)     The party may be ordered to pay the costs only if:
(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)    the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c)     the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
The parties were also in agreement that ss.569 and 569A of the Act had no application to the present proceeding. Indeed, the respondent sought to rely only upon s.570(2)(b) of the Act.
The respondent said that the applicant’s unreasonable acts or omissions were any one or more of the following:
a)the failure of the applicant to discontinue his application after receiving the respondent’s letter dated 8 April 2013;
b)the failure of the applicant to withdraw at any time between the issuing of the respondent's application in a case dated 24 April 2013 and the hearing of that application on 11 June 2013; and
c)the bringing of the applicant’s application in a case on 3 May 2013.
The respondent acknowledged that the policy underpinning s.570 of the Act and its statutory forebears is to displace the common law rule that costs follow the event and to make an award of costs an unusual event predicated upon particular facts: Hobson v BWL Pty Ltd (No.3) (2012) 263 FLR 76; (2012) 222 IR 48; [2012] FMCA 439. The respondent argued that the particular facts that arose in this case warranted a costs order against the applicant.
The respondent relied firstly on Hughes v Mainrange Corporation Pty Ltd (No.2) (2009) 190 IR 351; [2009] FMCA 1044, where the court ordered the applicant to pay the respondent’s costs. The first respondent submitted that costs were ordered in that case because the claim was premature in that no cause of action had accrued at the time the proceedings were issued.
However, it was not simply the fact that the application was brought prematurely that warranted a costs order. In fact, Lucev FM, as his Honour then was, said at [23]:
The jurisdictional objection in relation to the original application is so fundamental that a simple enquiry with any competent lawyer, or any of the many available free legal advice services, would have put Ms Hughes in a position to concede the jurisdictional objection with respect to the original application much earlier than she did, including before the first directions hearing.
The present case is quite different. The jurisdictional issue in this case could not have been resolved with a simple enquiry. As the judgment in the substantive proceeding indicates, there were reasonable arguments, based on authority, in support at least of the applicant’s application for an adjournment.
The respondent also relied on Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; (2009) 190 IR 207; [2009] FMCA 102 where costs were ordered against the applicant. The respondent submitted that Rentuza was similar to the present case, because the applicant did not have the appropriate certificate and thus his application to the court was without jurisdiction.
Rentuza was somewhat different to the present case because in Rentuza, the applicant did not attach any certificate at all to his application to the court, even though the application form clearly stated that a s.777 certificate had to be attached. In the present case, the applicant did attach a certificate but it was not the right one. Consequently, it cannot be said that the applicant in the present case acted in blatant disregard of the fundamental statutory requirements. Rather, he, or his advisers, made a mistake.
The respondent also relied upon Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94; [2012] FMCA 518, where costs were ordered against the applicant. In that case, the applicant included as respondents to the proceeding parties who had not been subject to the s.369 certificate obtained at the tribunal stage. Similarly to the present case, Mr Dain was sent a letter outlining authority that was against him but carried on with the proceeding regardless.
Dain is somewhat different to the present case because the authorities in Dain all appear to be one way, whereas in the present case the authorities went in opposite directions, at least in relation to the question of an adjournment.
I accept that the applicant, who was legally represented, should always have known that he had very little prospect of success in relation to his amendment application. However, I do not consider that his adjournment application was so devoid of merit, given the state of the authorities discussed in the substantive judgment, that it was unreasonable, in the necessary sense, for the applicant to continue with his application.
As the applicant had one arguable point, I do not consider that it would be appropriate to order costs against him because he also ran a lesser argument at the same hearing.
Consequently, I refuse the respondent’s application for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 1 November 2013