BROWN v DS and MJ Batten (No.2)
[2012] FMCA 436
•28 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN v DS & MJ BATTEN (No.2) | [2012] FMCA 436 |
| INDUSTRIAL LAW – Fair Work Act. |
| Fair Work Act 2009, ss.401, 511, 570(2)(b), 611(2)(a), (b) |
| Saxena v PPF Management Limited [2011] FCA 395 Nimmo in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 |
| Applicant: | MICHAEL BROWN |
| Respondent: | DS & MJ BATTEN T/AS PANE IN THE GLASS |
| File Number: | SYG 1760 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 May 2012 |
| Date of Last Submission: | 16 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Currie |
| Solicitors for the Applicant: | CBD Law |
| Solicitors for the Respondent: | Conditsis Lawyers |
ORDERS
Application for costs dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1760 of 2011
| MICHAEL BROWN |
Applicant
And
| DS & MJ BATTEN T/AS PANE IN THE GLASS |
Respondent
REASONS FOR JUDGMENT
The substantive proceedings in this matter were heard between 28 and 29 March 2012 and judgment was delivered on 13 April 2012. The applicant’s claims that he was wrongfully dismissed from his employment with the respondents as a result of him exercising his workplace rights and for financial penalties to be imposed upon the respondents were not successful. The applicant did succeed in a claim for reimbursement of moneys deducted from his final payment by the respondents in the sum of $313.27. The respondents now seek an order for costs against the applicant.
In a document entitled “Application for Costs” and headed “In Fair Work Australia” the respondents make application for costs under s.611(2)(a) and (b) of the Fair Work Act 2009[1] or alternatively under s.570(2)(b) of that Act. This court is not Fair Work Australia, it is the Federal Magistrates Court. Applications filed in it should be filed with the appropriate headings. Section 511 and also Section 401 to which reference was made in a letter that the respondents seek the court to take note of are all sections relevant to Fair Work Australia. They are not relevant to this court. The only provision for payment of costs in this court is s.570. That is in the following terms:
[1] “Act”
“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) exercising jurisdiction 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 FWA;
(ii) the matter arose from the same facts as the proceedings.”
The court accepts that the purpose of s.570 is to make the court’s jurisdiction under the Fair Work Act a no costs jurisdiction except in special circumstances. These circumstances can have temporal differences so that those falling under sub-s.2(a) are limited to the institution of the proceedings and those falling under sub-s.2(b) can continue through the proceedings so that whilst a party may not have instituted the proceedings without reasonable cause it may become clear during the course of those proceedings that the action was untenable so that by not withdrawing the whole of part of the proceedings the party acted or omitted to act unreasonably thus causing the other party to incur costs.
In its submissions, whilst the applicant seeks an under s.611(2)(a) of the Act that I have found is not relevant to these court’s orders it only seeks an order under s.570(2)(b) so it is not necessary for the court to consider whether or not the proceedings were instituted vexatiously or without reasonable cause. In considering whether or not to order costs under that sub-section I bear in mind what Bromberg J said in Saxena v PPF Management Limited [2011] FCA 395[2] at [5] and [6]:
“[5]The predecessor provision to s 570 was considered by a Full Court of this Court in Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574 where at [29] the Court said:
“Indeed, while courts should use the discretion in section 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 a 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.”
[6]With great respect to the observations made in CFMEU v Clark, I wholeheartedly agree that this Court ought be very careful indeed to exercise the discretion provided by s 570(2) and should not do so other than in a clear case. The limited discretion conferred on the Court by that subsection ought not become the basis for arguments about costs in relation to any and every transgression in the conduct of a case.”
[2] “Saxena”
The respondent’s submissions note that in its Response it put the applicant on notice that if they were successful they would seek an order for costs under s.611 of the Act. Although this is the wrong reference I will accept it as a warning of an appropriate application. The respondent’s lengthy submissions essentially rehearse the evidence and the court’s findings in relation to it. Whilst these were generally unfavourable to the applicant they never achieved the heights of hyperbole found at submissions 4.11.5:
“We then come to the breathtaking falsity and blatant attempt to mislead the court at paragraph 6i. of the applicant’s second affidavit.”
The evidence of the parties has to be looked at in context. The applicant was dismissed from his employment. It did happen after he had made a claim for workers compensation. It did happen after he had been told by one of the respondents that she did not believe that the injury for which he claimed compensation happened at the workplace. The explanation put forward for the dismissal was not the explanation as it eventually appeared in the evidence of Mr Batten. The case thus came down to whose evidence the court preferred. It was quite open for the court to find that the dismissal was occasioned by the applicant seeking to exercise a workplace right i.e. that the workers compensation claim (which the respondents did not really believe) was the principal reason for the dismissal. It was only after all the evidence was heard that the court was able to conclude that this was not the case. The letters which the respondent’s solicitors wrote are all predicated on the court believing the evidence that the respondent was to put forward. The effect of those letters was for the respondents to be saying to the applicant “We think we’re going to win this case and if we do we are going to ask for costs so you had better give up now.” That the applicant continued with his proceeding does not to my mind constitute an unreasonable act or omission causing the respondents to incur costs.
It should also always be borne in mind that the applicant succeeded in his claim for repayment of the moneys deducted from his last pay. Nowhere in the correspondence that I have seen is an offer made by the respondents to make that payment. The applicant has also provided me with some helpful written submissions. These deal at some length with the position had the respondent made an application under s.570(2)(a) which they did not. I do, however, note the reference to the decision of Reeves J in Nimmo in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [28 – 30] and his Honour’s reiteration of the principle that the relevant question is:
“Whether the proceedings had reasonable prospects of success at the time they were instituted, not whether they ultimately failed.”
On this test, had the respondents made the appropriate application I would have dismissed it because at the time the application was made the full details of why he was dismissed as articulated in the affidavit evidence was not known.
The applicant also cites the decision of Bromberg J in Saxena already extracted in these reasons but otherwise there is nothing said in those submissions that would enhance or detract from the view that I have taken that this is not a case in which costs should be ordered. The application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 28 May 2012
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