Dowling v John Fairfax Publications Pty Ltd (No.4)
[2008] FMCA 1084
•28 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LIMITED (No.4) | [2008] FMCA 1084 |
| INDUSTRIAL LAW – Costs under Workplace Relations Act1996. PRACTICE & PROCEDURE – Costs – proceedings partly brought without reasonable cause – partial costs awarded. |
| Workplace Relations Act1996, ss.663, 659, 666, 792, 793, 807, 824 |
| Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Dowling v Kirk & 16 Ors [2007] FMCA 2106 Dowling v Kirk [2008] FCA 165 Dowling v Kirk & 3 Ors [2008] FMCA 814 |
| Applicant: | SHANE DOWLING |
| Respondent: | JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
| File Number: | SYG 2671 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 July 2008 |
| Date of Last Submission: | 28 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms K. Eastman |
| Solicitors for the Respondents: | Freehills |
ORDERS
The applicant pay the respondent’s costs of and incidental to his application in a case filed on 30 October 2007 and one-third of the remainder of the respondent’s costs up to and including 20 December 2007, those costs to be assessed according to the Court’s scale of costs.
The respondent file and serve on or before 29 July 2007 an assessment of its costs pursuant to the judgment in this matter.
The applicant advise the Court and the respondent’s solicitors on or before 4 August 2008 whether he consents to the respondent’s quantum of its costs or requires the matter to be relisted for argument on the quantum of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2007
| SHANE DOWLING |
Applicant
And
| JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
These proceedings of Mr Dowling raised three matters of substance associated with the termination of his employment with the respondent, John Fairfax Publications Pty Limited (“Fairfax”). The conduct of the proceedings raised additional issues related to interlocutory applications filed by Mr Dowling.
As these are proceedings under the Workplace Relations Act1996 (“Act”), the usual presumption that costs will follow the event will not apply. The position is governed in this case by ss.666 and 824 of that Act which provide that costs may not be awarded unless proceedings are instituted vexatiously or without reasonable cause or costs were incurred by a party’s unreasonable act or omission.
The first of the principal issues, which was determined by my judgment of 20 December 2007 (Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104), was whether Mr Dowling’s employment had been unlawfully terminated contrary to s.659 of the Act. The claim was dismissed because, on established authority, it had no reasonable prospects of success. There was no novel legal argument advanced in support of Mr Dowling’s claim nor was there any reasonably arguable case open to him on the facts, based on the content of the affidavits on which he relied.
There being no real doubts about the outcome of his claim, it must be concluded that it was brought without reasonable cause. In this regard, I refer to what was said by Wilcox J in Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257:
It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. [at 264-265]
Consequently, to the extent that Fairfax seeks costs pursuant to s.666 in respect of the claim brought by Mr Dowling under s.663 for an alleged breach of s.659, I find that, as he has brought the proceedings without reasonable cause, Fairfax is entitled to its costs of that aspect of the proceedings.
The second and third principal issues raised by Mr Dowling’s claims relate to his allegation that his dismissal contravened s.792 of the Act because it was for reasons prohibited by s.793(1)(j) and (k) of the Act. He sought to ventilate these claims by way of an amendment to his application. Leave to amend was refused on 26 June 2008.
Once the decision of 20 December 2007 was delivered, all the parties’ efforts were directed to the determination of the application to amend, with the exception of an interlocutory argument on 4 February 2008 which was partly concerned with the further conduct of these proceedings in light of leave to appeal to the Federal Court having been given in respect of the related proceedings, Dowling v Kirk & 16 Ors [2007] FMCA 2106.
Unlike his claim pursuant to s.663 for breach of s.659, Mr Dowling’s proposed claim pursuant to s.807 for breach of s.792 raised issues which had not been previously determined in such a way as to make their outcome in these proceedings a forgone conclusion. The sophistication of the arguments mounted by Fairfax is testament to that.
Generally in relation to the claims brought by Mr Dowling in respect of the alleged breaches of s.792, I am not of the view that they were brought vexatiously or without reasonable cause. In this regard, I note that I have previously in these proceeding had cause to consider what amounted to vexatiousness in proceedings.
For these reasons, I conclude that Fairfax is not entitled to its costs of meeting the allegation of breach of s.792.
Interlocutory applications
Turning to the interlocutory applications, the first of these was filed on 24 September 2007 and was partly disposed of in the judgment of 20 December 2007. To that extent, it raised issues associated with the original claim of unlawful dismissal, in respect of which I have concluded Fairfax is entitled to its costs. The second element, which sought interim reinstatement, was stood over for argument to 4 February 2008 at which point it was dismissed.
The application in a case filed by Mr Dowling on 30 October 2007 sought damages on an interim basis and was refused as part of the judgment delivered on 20 December 2007.
Fairfax has made many cogent criticisms of the manner in which Mr Dowling has prosecuted these proceedings. Certainly, he has been aggressive and has never taken a backward step when perhaps he should have at least paused to reflect. However, much of the complaints made by Fairfax against Mr Dowling arise out of the fact that he is unrepresented. It should be noted that he had no obligation to obtain representation.
As to the first of the interlocutory applications, I have already determined that that aspect of it which was dealt with in 2007 should form part of the costs awarded in relation to the unlawful termination claim. However, the second aspect was dealt with months later and I will deal with it separately shortly.
In relation to the second application, which was disposed of on 20 December 2007, in that judgment of 20 December 2007 I found that the applicant sought to re-agitate a matter which had already been ruled upon on 25 October 2007, namely the appropriateness of granting interim relief when there was then before the Court an application to dismiss the proceedings as a whole. Also considered at that time was Mr Dowling’s submission that I disqualify myself from further hearing the matter. The latter application was found to be without foundation and in this regard I quote what Rares J said of those allegations when repeated in the Federal Court:
In my opinion, there is not the slightest doubt that his Honour was correct to dismiss the allegations of bias made to him for the reasons that he gave. Not only do I see no error in those reasons, they are undoubtedly correct. (Dowling v Kirk [2008] FCA 165 at [5])
In such circumstances, I find that that application in a case filed on 30 October 2007 did cause Fairfax to incur costs unreasonably and it should be compensated for those costs.
Returning to the second part of the application which had been filed in September 2007 and which had not been disposed of in the 20 December 2007 judgment, it was concerned with interim reinstatement, and, by the time it was argued in 2008, turned in part on the proper construction of s.807. Although Mr Dowling was ultimately unsuccessful, I am not of the view that the application he brought was unreasonable such as to attract a costs order under s.824(2).
Conclusion
Fairfax seeks costs on an indemnity basis but I am not satisfied that the criteria for such an order have been satisfied. I considered those criteria in my costs judgment in Dowling v Kirk & 3 Ors [2008] FMCA 814. Mr Dowling’s behaviour throughout this case has been egregious but that should be disregarded when considering what costs should be awarded to Fairfax.
His unlawful dismissal claim was misconceived but although I accept that Mr Dowling was put on notice by Fairfax’s solicitors of the weakness of his case, I am most reluctant to award costs on that basis against an unrepresented litigant whose appreciation of the arguments put to him, and the possible consequences of such a communication, I doubt would have been crystal clear, particularly as the Freehills letter of 28 August 2007 made no reference to a potential claim for indemnity costs. In my view, it is sufficient that costs on a party and party basis be awarded.
Fairfax has also adduced evidence of Calderbank offers having been made to Mr Dowling. However, the first Calderbank letter was not sent until the judgment of 20 December 2007 had been delivered. From that point on, the only live issue was the question of joinder and Mr Dowling’s claims in respect of s.792. As I have determined there shall be no costs order in respect of that aspect of the proceedings, the Calderbank letters may be put to one side.
Given the circumstances of this case, I am not persuaded that there is any reason why the Court’s scale of costs should not apply here. When calculating those costs, I note that the unlawful dismissal claim formed only part of the proceedings up to the time of the judgment of 20 December 2007. I assess it to have represented one third of the preparation and hearing time, other than the interlocutory application filed on 30 October 2007 and argued in November 2007, and shall vary the fixed costs sums accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 21 August 2008
CORRECTIONS
Paragraph 12 – delete “also sought reinstatement”, replace with “sought damages on an interim basis”.
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