CLARKE v FKP Group Ltd

Case •

[2013] FMCA 145

•

29 January 2013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLARKE v FKP GROUP LTD [2013] FMCA 145
INDUSTRIAL LAW – Costs – delay in filing of application – consideration of merits of application – whether the applicant was a contractor – whether the application was misconceived – failure to identify cause of action or breach of statute – reasonable offer of settlement – late discontinuance of application –  whether the application was vexatious – unreasonable conduct by the applicant – unnecessary costs borne by the respondent – costs awarded.
Fair Work Act 2009 (Cth), ss.570, 572
Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392
Hobson v BWL Pty Ltd (No.3) (2012) 263 FLR 76
Applicant: JASON CLARKE
Respondent: FKP GROUP LTD
File Number: BRG 952 of 2012
Judgment of: Burnett FM
Hearing date: 29 January 2013
Date of Last Submission: 29 January 2013
Delivered at: Brisbane
Delivered on: 29 January 2013

REPRESENTATION

The Applicant appeared on his own behalf
Solicitors for the Respondent: Bell Partners Legal Pty Ltd

ORDERS

  1. The applicant pay the respondent’s costs of and incidental to these proceedings be assessed on the standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 952 of 2012

JASON CLARKE

Applicant

And

FKP GROUP LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

  1. This application came on today for final hearing. On Friday, the business day immediately preceding the hearing of this application, the applicant filed a Notice of Discontinuance. The application is one brought by the applicant, pursuant to the provisions of the Fair Work Act 2009 (Cth) (the Act), seeking relief in respect of an alleged event of unfair dismissal in contravention of the general protections. The applicant had, as was required, made application to Fair Work Australia and underwent a process of conciliation before a Fair Work Commissioner.

  2. That process was unsuccessful and on 14 June 2012, the Commissioner issued a certificate. This matter now falls within the jurisdiction of the Federal Magistrates Court of Australia. Notwithstanding the fact that the relevant provision requires proceedings to be commenced within 14 days of the issue of the certificate or such other time as a court may allow, the applicant commenced his application on 29 October 2012.

  3. The application itself does foreshadow an application for an extension of time to make the application. The application is expressed in these terms:

    “I here by seek an extension in order to complete my complication. I had send in my application originally on time and it was return to me because it was not completed properly and advising me to seek legal council.

    I then send it in a second time and then it as return again with a letter advising me that I will need to seek an interlocutory, or interim or procedural order, so I hereby seeking one of those.”

  4. Even allowing for two approaches to the Registry after 14 June 2012, the application has taken what can only be described as an inordinate period of time to reach a point where it was filed, including an application for an extension of time. That is the first basis upon which the respondent contends it ought be entitled to an order for costs.

  5. The second relates to the merits of the application.  The respondent identifies that the pleadings remain fatally flawed and that, as a matter of law, they cannot succeed. For instance, an issue arose on the pleadings as to whether or not the applicant was an independent contractor or employee.  The respondent contends the applicant was an independent contractor, for various reasons, which it contends are supported by the facts. The applicant, of course, puts that in issue. Further, it is noted that the respondent identified in the application is a non-existent entity. That matter is not fatal but simply highlights the ill-considered approach by the applicant to the application. Furthermore, it is contended that no cause of action or section of the Act has been breached. The applicant has not pleaded any particular workplace right or adverse action taken in consequence of a breach of a workplace right.

  6. Of course, those matters are essential to success in such an application. Finally, the respondent contends that the applicant does not have any disability and on that basis alone, as a matter of fact, the application ought not succeed. I note on that point that the applicant’s contention is that there was a suggestion that he might have a disability and it is on the basis of that allegation, whether it be fact or otherwise, that he prosecutes his claim. In any event, the matters were exacerbated because at an early stage and during the course of the application, the respondent attempted to make various offers to resolve the dispute in order to minimise costs.

  7. On a number of occasions, the respondent offered to resolve the matter on the basis that the applicant walk away and pay no costs. The applicant has not accepted those offers. The respondent also complains that the lateness, for instance, of the Notice of Discontinuance itself has occasioned prejudice in terms of costs. The respondent contends that, by reason of the manner in which the applicant has prosecuted the Application, the respondent has been unsure as to how it should interpret such events as the filing of a Notice of Discontinuance, which I note, whilst filed and marked by the Registry as having been filed on 25 January 2013, was not formally served upon the respondents.

  8. The relevant provision governing the issue of costs is to be found in s.570 of the Act, which is in these terms:

    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.

  9. Subparagraph (3) does not apply, but in my view there is ample evidence to demonstrate a basis for ordering costs pursuant to subparagraphs (2) (a) and/or (b). It is well settled that the institution of a proceeding which is misconceived, in the sense of being incompetent, is a matter which demonstrates conduct which is unreasonable for the purposes of s.572.[1]

    [1] See Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 at paragraph [36].

  10. Furthermore, it is well settled that a deliberate decision to refuse a reasonable offer of settlement is a factor which would normally weigh heavily in favour of a finding of unreasonable conduct.[2] In my view, the facts amply demonstrate that the cause of action was prosecuted vexatiously. It is one that appears to have had little or no merit.

    [2] See Hobson v BWL Pty Ltd (No 3) (2012) 263 FLR 76 at paragraph [57].

  11. Undoubtedly it is for that reason that it did not resolve at an early stage. Notwithstanding that fact, the applicant persisted in prosecuting it to a point where he ultimately filed a Notice of Discontinuance, which reinforces the view that the application had little or no merit. Furthermore, the applicant’s conduct in refusing reasonable offers of settlement which had been proffered in the interim , in my view, does also demonstrate the unreasonableness of his conduct and its effect in putting the respondent to the expense of having to prepare for trial.

  12. There are issues in relation to the appropriate costs and outlays that ought to be allowed for in taxation, in particular costs and outlays in relation to witnesses who have been organised for today. In the circumstances, I am not adequately equipped with the necessary knowledge of the file or its preparation and/or other matters relevant to assessing those issues. It follows that the best course, rather than making an order awarding costs on the scale, is to simply direct that the applicant pay the respondent’s costs to be assessed. I will order that the applicant pay the respondent’s costs of and incidental to the application, to be assessed by the Registrar of the Federal Court of Australia.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  13 September 2013


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