DAK16 v Minister for Immigration and Border Protection

[2019] FCA 68

FEDERAL COURT OF AUSTRALIA

Guo v Metwest Steel Pty Ltd [2019] FCA 68

File number:

WAD 313 of 2018

Judge:

MCKERRACHER  J

Date of judgment:

8 February 2019

Catchwords:

COSTS – interlocutory application for costs – where s 570 of the Fair Work Act 2009 (Cth) applies – where applicant had twice amended pleadings in response to respondents’ complaint – whether this conduct was unreasonable

Held:  application dismissed

Legislation:

Fair Work Act 2009 (Cth) s 570

Date of hearing:

1 February 2019

Registry:

Western Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

Mr J Nicholas

Solicitor for the Applicant:

Nicholas Legal

Counsel for the Respondents:

Mr EW Young

Solicitor for the Respondents:

Robertson Hayles Lawyers

ORDERS

WAD 313 of 2018

BETWEEN:

SHULIN GUO

Applicant

AND:

METWEST STEEL PTY LTD ACN 123 829 532

First Respondent

SIU KWAN YAN

Second Respondent

JUDGE:	MCKERRACHER  J
DATE OF ORDER:	8 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The interlocutory application for costs be dismissed.

2.The respondents are to file a defence within 28 days, unless they file an application to strike out the current version of the statement of claim within 14 days. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1. The principal claim is for sums said to be due and unpaid in respect of the applicant’s former employment by the first respondent.  The applicant now lives in China and has only $10,000 in Australia.  The domicile and assets, while emphasised by the respondents, are not relevant to this application. 

2. The applicant has amended his lengthy pleadings twice in response to the respondents’ complaint by letter to the applicant. Those changes have resulted in delay and costs thrown away which would normally be payable but for the ‘access to justice’ provisions of s 570 of the Fair Work Act 2009 (Cth).

3. The respondents nonetheless apply for payment of about $30,000 in costs, payable forthwith and for the application to be stayed pending the payment.  In this jurisdiction, for such or any order for payment of costs to be made, it needs to be shown inter alia that the relevant conduct of the applicant has been unreasonable.  The respondents say the conduct was unreasonable in filing, with considerable delay, lengthy pleadings which changed considerably and which necessarily caused costs to be incurred, which costs were wasted.

4. The applicant admits the changes were made but says that he was simply cooperating and providing additional information to facilitate the conduct of the claim.  The applicant rejects the respondents’ contention that the changes were necessary to elucidate the claims, rather the statement ‘at its heart has remained the same’.

5. I do not intend to resolve the question of whether the changes were necessary, although my firm impression is that some changes were at least preferable.  My impression also is that the position taken by the respondents in relation to the earlier pleadings was unduly pedantic given the amount at issue and further that the complaints about an inability to understand the case being advanced were somewhat exaggerated. 

6. The claim for costs is relatively modest, especially given that the actual hearing took at least half a day and was supported by extensive affidavits and submissions.

7. I do not consider that the claim for costs warranted such an expensive exercise.  While there were imperfections in the earlier pleadings and some imperfections may remain in the current pleading, I am not persuaded that the applicant has acted unreasonably so as to warrant a departure from the conventional position in claims brought under the Fair Work Act.  The claims involve great detail and the applicant has been pressed for further specificity and clarity. 

8. For those reasons I would dismiss the application. 

9. The applicant says that in addition to dismissing the application, I should order that the respondents put on a defence.  Counsel for the respondents contends that a defence would be unhelpful due to the nature of the current pleading.  I am not persuaded that this is so on present indications and I propose to order the filing of a defence unless the respondents file an application to strike out the current version of the statement of claim.  This is not an invitation for them to do so, because I am not persuaded on what I have seen at this stage that it is not possible to plead sensibly to the current version of the statement of claim. 

10. More importantly, the parties should mediate this relatively small claim without delay.  The likelihood is that if mediation fails an expert assessor will be appointed by the Court to address the questions about whether or not the numerous and various sums claimed were due.  Such an exercise is not the best use of the Court’s strained resources.

11. The orders will be that:

    (1)The interlocutory application for costs is dismissed.

    (2)The respondents are to file a defence within 28 days, unless they file an application to strike out the current version of the statement of claim within 14 days. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:       8 February 2019