Clarke v HERRICK

[2020] FCCA 1017

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v HERRICK & ORS [2020] FCCA 1017

Catchwords:
INDUSTRIAL LAW – Application in a case seeking orders for costs and disbursements – discretion to make a costs order – application in a case dismissed.

Legislation:

Fair Work Act 2009 (Cth), s.570

Federal Circuit Court of Australia Act 1999 (Cth), pt.6B

Applicant: SHARMAIN DAISY CLARKE

First Respondent: JULIE HERRICK

Second Respondent: SUSAN DALE

Third Respondent: VIRGINIA KING

Fourth Respondent: BRONWYN HICKMAN

Fifth Respondent: LESLEY FINN

Sixth Respondent: MARIA FENN

Seventh Respondent: ANNETTE WRIGHT

Eight Respondent: GEORGIA DEAKIN AKA GEORGIA VAN DER MEER

Ninth Respondent: ROYAL HOSPITAL FOR WOMEN

File Number: SYG 160 of 2020

Judgment of: Judge Street

Hearing date: 1 May 2020

Date of Last Submission: 1 May 2020

Delivered at: Sydney

Delivered on: 1 May 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Counsel for the Respondent: Ms T Harris-Roxas via Microsoft Teams

Solicitors for the Respondent:  Hicksons Lawyers

ORDERS

1. The application in a case filed on 27 April 2020 is dismissed.

DATE OF ORDER: 1 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 160 of 2020

SHARMAIN DAISY CLARKE

Applicant

And

JULIE HERRICK

First Respondent

SUSAN DALE

Second Respondent

VIRGINIA KING

Third Respondent

BRONWYN HICKMAN

Fourth Respondent

LESLEY FINN

Fifth Respondent

MARIA FENN

Sixth Respondent

ANNETTE WRIGHT

Seventh Respondent

GEORGIA DEAKIN AKA GEORGIA VAN DER MEER

Eight Respondent

ROYAL HOSPITAL FOR WOMEN

Ninth Respondent

REASONS FOR JUDGMENT

1. This is an application in a case seeking costs in the sum of $5,000.00 in relation to proceedings commenced under the Fair Work Act 2009 (Cth) (“the Act”) on 21 January 2020 that were discontinued on 3 April 2020.

2. Prior to the filing of the notice of discontinuance, this Court conducted directions hearings which identified serious potential deficiencies with the applicant’s proceedings. The Court raised with the applicant concern also in relation to the possible outcome of a determination as to whether the proceedings should be summarily dismissed while potentially also considering whether orders could possibly be made under pt 6B of the Federal Circuit Court of Australia Act 1999 (Cth).

3. The proceedings were discontinued on 3 April 2020.

4. On 27 April 2020, the respondent filed an application in a case seeking costs. No application was ever pursued by the respondents under pt 6B of the Federal Circuit Court of Australia Act 1999 (Cth) and nor does the application in a case filed on 27 April 2020 seek to do so.

5. It is not the case that the Court should determine substantive questions on cost issues in circumstances where the heart of the issue under pt 6B of the Federal Circuit Court of Australia Act 1999 (Cth) and under s 570 of the Act is whether the proceedings were vexatious. The Court does not regard it as appropriate to determine that issue on the costs application under s 570 of the Act. The Court has a discretion in that regard, even if the criteria enlivening the Court’s powers is regarded as having been made out.

6. Given the history of the matter, as a matter of discretion, the Court would not be disposed to make a costs order in this case. The reason for that includes the insight shown by the applicant in understanding that her case was likely to be doomed to failure. That was an insight and a step taken by the applicant in discontinuing the proceedings of a very positive kind. It showed insight by the applicant in relation to the need not to distract the Court with proceedings that are bound or may be bound to fail and it showed insight by the applicant of the need not to vex and annoy the respondents with proceedings that may be or were bound to fail. That insight is something to be encouraged.

7. It is also the case that the filing of the notice of discontinuance was no small step by Ms Clarke in the context of the proceedings and obviously her earnest believe of having been the subject of a wrong remediable by Court process. That is not in any way to suggest that there is substance in that belief but it is one whereby, in the filing of a notice of discontinuance, Ms Clarke recognised that those proceedings, which are the subject of this costs application, were ones that she should no longer pursue.

8. The Court wants to embrace and acknowledge that insight. The Court is deeply concerned by what appears to be further proceedings being taken in another court, being the District Court of New South Wales, by Ms Clarke that have all the hallmarks of the same type of problems that these proceedings may have had. The proceedings in the District Court of New South Wales are not before this Court, but Ms Clarke had filed an affidavit annexing the process. The process, on its face, is one likely to face the same type of outcome and the same type of issues that this Court was considering.

9. It is important for Ms Clarke to hold onto the insight that she acquired when she filed the notice of discontinuance on 3 April 2020 and try and bring that insight in relation to the other steps she’s taking in the District Court of New South Wales and to consider carefully if she really advancing her own interest in exposing herself to further costs orders in those proceedings and the prospect of being declared vexatious in that Court.

10. It is not in Ms Clarke’s interest to be encouraged to pursue litigation. Ms Clarke needs to take a very careful look at whether she wants to continue those other proceedings and should carefully consider whether she wants to discontinue those with the consent of the opponents so that she is not exposed to any ongoing costs consequence. It is very much in Ms Clarke’s interests to carefully reflect on those other proceedings and whether they are in her interests to pursue. Acquiring multiple costs orders or an adverse costs orders gives rise to a potential for bankruptcy proceedings and bankruptcy proceedings are not something which would be in the interests of any person to unnecessarily have their affairs managed and administered by a trustee.

11. The Court makes these observations in the context and in the hope of enlivening the same insight that Ms Clarke showed when she filed the notice of discontinuance in these proceedings which should be taken into account and the subject of reflection in relation to the proceedings against the lawyers in the District Court of New South Wales which, on their face, appear doomed to failure and appear likely to enliven the same types of issues of being declared a vexatious litigant in that Court as these proceedings may have enlivened in this Court.

12. It is because of the insight that Ms Clarke showed in filing the notice of discontinuance that, as a matter of discretion, the Court would, in any event, even if the criteria under s 570 of the Act were made out, decline to make a costs order. The Court is hopeful that Ms Clarke has listened carefully to what the Court has said and will take into account these observations in ensuring that she moves on and recognises the same insight in respect of the other proceedings that she has taken, and considers carefully whether she should be discontinuing those so as not to put herself into the same position as she was facing before this Court.

13. Accordingly, for these reasons, the Court makes the following orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 May 2020