Freeman v Ambulance Victoria
[2011] VSC 494
•30 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 4993
| NEIL FREEMAN | Plaintiff |
| V | |
| AMBULANCE VICTORIA | Defendant |
---
JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2011 | |
DATE OF JUDGMENT: | 30 September 2011 | |
CASE MAY BE CITED AS: | Freeman v Ambulance Victoria | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 494 | |
---
COSTS – Appeal from VCAT to Associate Justice – Limited leave to appeal granted – One ground of appeal referred to Practice Court – Matter resolved by Defendant providing to Plaintiff the relief sought in the referred application – No order as to costs on leave application before Associate Justice – Defendant pay Plaintiff’s costs on a party/party basis on the Practice Court application – Application for indemnity costs refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McDonald | McDonald Murholme |
| For the Defendant | Mr R Miller | Marsh & Maher |
HIS HONOUR:
Mr Freeman, the plaintiff, is a Clinical Transport Officer employed by Ambulance Victoria. He has been employed in that capacity since July 2008. He is not a paramedic, although between 2002 and 2004 he was a trainee paramedic.
In March 2011, Mr Freeman was issued with a formal warning by Ambulance Australia for wearing items of incorrectly badged uniform.[1] He was cautioned to wear correct uniform at all times. Apparently the gravamen of the asserted offending conduct was that certain articles of Ambulance Victoria clothing that he wore were badged in some way with the word “paramedic” prominently displayed.
[1]Exhibit JB1 to the Affidavit of John Bradbury sworn 20 September 2011.
Ambulance Victoria allege that on 16 May 2011 Mr Freeman was again observed to be wearing a jumper with a “paramedic” badge. The allegation was that Mr Freeman’s standard Ambulance Victoria jumper had been modified to incorporate a large PARAMEDIC badge on the otherwise plain back of the jumper. On 31 May 2011 Mr Freeman was requested in writing to attend a formal counselling meeting to explore “the continued wearing of inappropriate uniform during the performance of… (his) … duties.”[2] The letter goes on to advise Mr Freeman that Ambulance Victoria may take disciplinary action against him and that one potential outcome was the termination of his employment.
[2]Affidavit of John Bradbury sworn 20 September 2011. Exhibit JB3.
It is unnecessary to recite the precise chronology of events thereafter. On 9 August 2011 Freeman attended a “disciplinary meeting” with his solicitor and to do with the uniform issues outlined earlier. One day later he lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission alleging various forms of discrimination in the workplace. On 11 August 2011 his solicitors wrote to Marsh & Maher, solicitors for Ambulance Victoria, requesting, inter alia
Seven days notice of any intention by your client to terminate our client’s employment, and provide us with any proposed reasons for termination so that our client may address the issues prior to the termination as so advised.[3]
Ambulance Victoria replied giving no guarantee as to the timing of its disciplinary process and effectively declined to provide “the seven day assurance that you request.”
[3]I shall refer to this request throughout these reasons by the shortened expression “7 days notice with reasons”.
By late August 2011 the plaintiff commenced a VCAT proceeding against Ambulance Victoria. The plaintiff sought an “injunction to prevent the termination of…(his)…employment by Ambulance Victoria.”[4] This application was made on the basis of s 121 of the Equal Opportunity Act2010 (“the Act”) and sought to merge the plaintiff’s disciplinary “uniform” proceeding with the discrimination proceedings which were lodged with VCAT on 10 August.
[4]Affidavit of Neil Freeman sworn 19 September 2011 paragraph 7. A full copy of the application is Exhibit NF-2.
Deputy President Coghlan refused the application for an injunction. She found essentially that the discrimination proceeding which alleged, inter alia, that the plaintiff had been discriminated against by his employer because he made OH&S complaints, because he was a parent and because he was short were unrelated to the uniform issue which had given rise to the disciplinary proceedings. That being the case, the application for an injunction to restrain the termination of the plaintiff’s employment for equal opportunity reasons was dismissed.
The plaintiff then sought to “appeal” this matter before Lansdowne AsJ. Whether it actually commenced as an appeal is arguable but it is beyond doubt that it was treated as an appeal by her Honour. The orders made that day are annexed to the affidavit of Mr Broadbent as CJB1 and provide a detailed account, ground by ground, of the fate of each of the questions of law asserted to arise.
Leave was refused in respect of numerous grounds either on the basis that they raised issues not raised below[5] or that they raised questions of fact not law.[6] Limited leave to appeal was granted in respect of alleged errors of law.[7] At paragraph 13 of the judgment[8] the confined nature of the leave granted is set out.
[5]Grounds 1-3, 5.2 and 6.
[6]Grounds 5.1, 5.6 and 9.
[7]Grounds 5.3, 5.4, 5.5., 7 and 8.
[8]Freeman v Ambulance Victoria (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 26 September 2011).
Paragraph 2 (a) of the plaintiff’s summons was, by consent, referred to the Practice Court for hearing on Tuesday 27 September 2011. The relief sought in paragraph 2(a) of the plaintiff’s summons is as follows:
That for a period of not more than 28 days the defendant be and is hereby restrained from terminating the employment of the plaintiff without first providing 7 days written notice of its intention to do so and including written reasons for the proposed termination of employment.
Thus the matter referred was of very narrow compass. Ought the defendant provide 7 days notice and written reasons for a proposed termination of the plaintiff’s employment. I suspect the core of the matter turned on the plaintiff’s capacity to demonstrate that s 121 of the Act was engaged and/or whether there was any other entitlement to the relief sought. Events, however, have overtaken the plaintiff.
Ambulance Victoria determined to terminate the plaintiff’s employment on 23 September 2011. On that day solicitors for Ambulance Victoria sent an open letter to the plaintiff’s solicitor notifying them of Ambulance Victoria’s decision, providing reasons for the decision and providing 7 days notice of its intention to terminate Mr Freeman’s employment. The letter concludes:
If your client wishes to make any further written representations about the decision of our client he should do so before close of business on Friday 30 September 2011.
Whilst it may be a slightly pyrrhic victory, the plaintiff has succeeded in obtaining from the defendant precisely the relief which was sought by him in the application referred to this court.
The issue I am now asked to determine is that of costs of the whole proceeding. This can be divided into two discrete areas
(a) Costs of the application for leave to appeal; and
(b) Costs of this application.
Costs of the application for leave to appeal.
Costs of the application for leave to appeal were ordered by consent to be “in the appeal.” Thus the costs of the application would follow the ultimate outcome of the appeal. The passage of events described above has meant there has been and will be no outcome to the appeal. Mr Miller for the defendant, Ambulance Victoria, submitted that the starting point of this issue is Rule 63.15 which reads as follows:
Unless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.
There is no doubt the plaintiff has discontinued his appeal. It would be absurd not to given that the plaintiff has been given the notice of termination that I have referred to, by the defendant. Mr Miller went on to submit that in these circumstances there is no question that the plaintiff ought not recover his costs of this aspect of the proceeding and the only issue was whether I should award costs to the defendant using Rule 63.15 as the basis for such an award.
Mr McDonald submitted that because the plaintiff was successful in at least some part of his application for leave to appeal then the costs ought follow the event. I was not directed to any authority to the effect that costs ought follow a successful (or partly successful) application for leave to appeal.
In my view, on this discrete issue, I ought make no order as to costs. Leave was granted to appeal on a very limited basis and the appeal’s utility became subsumed by events initiated by the defendant. I consider there is no sensible basis for a plaintiff to recover costs on the basis only of a partly successful leave application to appeal and in the absence of a successful prosecution of that appeal. The defendant by its conduct in terminating the plaintiff’s employment has effectively cut the plaintiff’s appeal ground from under him. I would feel most uncomfortable awarding costs on this aspect against the plaintiff who had no option but to discontinue his appeal once the defendant acted as it did. In all the circumstances, I consider it would be unjust to make a costs order either way on the leave to appeal application before Lansdowne AsJ.
Costs of this application.
I have set out how this application came before the Practice Court. I understand the entire appeal was to be referred to the Practice Court, but by consent and at the plaintiff’s suggestion, the very limited application was referred. The best result for the plaintiff, had the application proceeded, was that I restrained the defendant from terminating the plaintiff’s employment without first providing 7 days written notice of its intention to do so and with written reasons for the proposed termination. It was open to the defendant to agree to 7 days notice with reasons on several occasions from August 11 onwards,[9] but for reasons not immediately apparent to me it chose not to do so.
[9]These are set out at paragraphs 3 and 4 of the affidavit of Andrew Jewell sworn 27 September 2011, Exhibit P1 filed on the application.
Mr McDonald submitted that any award of costs on this aspect ought be made on an indemnity basis. Mr Miller submitted that there ought be no order as to costs either way and, if I were of that view, then costs of the day ought to be awarded to the defendant as it made the offer that each party bear their own costs last Friday.
I have reached the view that the defendant ought pay the plaintiff’s costs of this discrete application to the Practice Court. Mr Miller submitted that there was no statutory equitable or contractual basis that gave Mr Freeman a right to 7 days notice with reasons and that the application was doomed to failure. That may or may not be the case. The inescapable fact is that the precise relief sought by the plaintiff before me was provided to the plaintiff by the defendant last Friday 23 September. On that day it proposed to terminate the plaintiff’s employment and provided him with 7 days notice and detailed written reasons for its decision.
I remain unpersuaded by the argument of Mr Miller that there was no cause of action that could possibly entitle the plaintiff to succeed in the narrow application before me. I have not, and am not asked to determine that issue. Regardless of whether there was a legal right for the plaintiff to succeed, by the conduct of the defendant the plaintiff has achieved all that this narrow application could have given him. In the circumstances, I consider it just that the defendant pay the plaintiff’s costs of this application, including the costs of today’s hearing.
Mr McDonald submitted that I ought order that those costs be paid on an indemnity basis. He sought to identify the special circumstances that must exist to justify such an award.[10] In substance, they amounted to the defendant’s repeated rejection of the plaintiff’s request for 7 days written notice plus reasons until just after 4.00 p.m. Friday last. It is often the case that litigation resolves late in the day, and I consider an award of costs on a party/party basis for this application provides appropriately for the successful party in this application.
[10]See Manderson M & F Consulting (a firm) v Incitec Pivot Limited [2011] VSC 441 per Croft J at [8]ff; IMC Aviation v Altain Kuder LLC [2011] VSCA 248 at 20 ff per Warren CJ.
Accordingly, I propose to order as follows:
1.On the application for leave to appeal before Lansdowne AsJ, I order that each party bear their own costs.
2.On the application referred to the Practice Court returnable on 27 September 2011 I order that the defendant pay the plaintiff’s costs on a party/party basis, to be taxed in default of agreement.
0
2
0