Gambaro v Tshopbiz Pty Ltd and Ors (No.2)

[2020] FCCA 1098

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v TSHOPBIZ PTY LTD & ORS (No.2) [2020] FCCA 1098

Catchwords:
PRACTICE AND PROCEDURE – Costs.

Legislation:

Fair Work Act 2009 (Cth), ss.570, 570(2), 570(2)(b)

Applicant: MICHAEL ALEXANDER GAMBARO

Seventh Respondent: TSHOPBIZ PTY LTD (ACN 603 604 066)

Ninth Respondent: MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Eleventh Respondent: DEBORAH NARELLE WILIAMS

Twelfth Respondent: TELVIC HOLDINGS PTY LTD (ACN 118 541 361) AS TRUSTEE FOR THE
TELVIC DISCRETIONARY TRUST

File Number: BRG 1020 of 2016

Judgment of: Judge Jarrett

Hearing date: 9 April 2020

Date of Last Submission: 9 April 2020

Delivered at: Brisbane

Delivered on: 9 April 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr. Perry QC

Solicitors for the Respondent: Aitken Legal

ORDERS

1. The application constituted by the response filed on 29 July 2019 is dismissed.

2. In respect of paragraphs 1, 2, and 3 of the response filed on 29 July 2019, the applicant pay the respondent’s costs of and incidental to that response, to be taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1020 of 2016

MICHAEL ALEXANDER GAMBARO

Applicant

And

TSHOPBIZ PTY LTD (ACN 603 604 066)

Seventh Respondent

MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Ninth Respondent

DEBORAH NARELLE WILIAMS

Eleventh Respondent

TELVIC HOLDINGS PTY LTD (ACN 118 541 361) AS TRUSTEE FOR THE TELVIC DISCRETIONARY TRUST

Twelfth Respondent

REASONS FOR JUDGMENT

1. This is an application for costs arising out of a judgment that I gave on 17 January this year.  It was in respect of an application, or part of an application in a case, that Mr Gambaro had commenced earlier last year.  The aspect of that application in a case with which my reasons delivered on 17 January 2020 dealt, was an application by Mr Gambaro to have the solicitors and counsel presently instructed by the respondents, the seventh, ninth, eleventh and twelfth respondents, removed from the proceedings.  I refused his application. 

2. The application was made on the basis that, according to Mr Gambaro, the lawyers involved in the case, the solicitors and barristers, had engaged in misleading conduct, had lied to the court, had been fraudulent, had engaged in forms of dishonesty, were acting for parties who did not exist or were “non-legal entities” and were prosecuting a case which was essentially hopeless.  He supported his application by reference to a large document which was said to contain particulars of the heinous allegations that he had made against the respondents’ solicitors and barristers. 

3. In my reasons, I determined that he made out none of the allegations, and that his application for removal of the lawyers ought be refused.  I stood over the question of costs, pending the delivery of written submissions by both parties about costs and adjourned the matter to today.  I have heard some further oral submissions from both parties.

4. Costs in an application like this ought follow the event ordinarily except, generally speaking, where there are circumstances which would indicate that the usual rule should not apply.  Here, there are no circumstances that would indicate that the usual rule should not apply.  Mr Gambaro’s application was unsuccessful and whilst he has filed an application for leave to appeal against my decision, that application does not operate as a stay of my dismissal of his application or any form of stay on an application for costs arising from the dismissal of his application.  Nor is the fact that he is self-represented a special circumstance which would mean that the usual rule about costs should not apply. 

5. To the extent that he has made written submissions and expanded upon them and added to them in his oral submissions, those submissions do nothing more than repeat the allegations and arguments that I dismissed when I determined the application in the first place.

6. In those circumstances, costs should follow the event, and there is no reason why they ought not.  I propose to order that the applicant pay the respondents’ costs of and incidental to that part of the application in a case, and the hearing of that part of the application in a case that was dealt with by the reasons that were delivered on 17 January 2020, but I will hear the parties on the form of order.

RECORDED :  NOT TRANSCRIBED

1. On 7 December, 2017 another judge of this court made some orders in these proceedings. The orders concerned some pleadings, a further amended statement of claim, and some other interlocutory proceedings. As a consequence of his Honour’s determination of those applications that were then before him, he ordered, pursuant to section 570(2)(b) of the Fair Work Act 2009, that the applicant be ordered to pay the respondents’ costs of the application in a case filed on 27 October, 2017 in the amount of $3471.50.

2. The respondents have brought an application for there to be some enforcement in respect of that order, and in response, the applicant has, by a response filed on 29 July, 2019 – sought orders that those orders to which I have just referred be set aside in full and that the orders:

   Be completely removed by the court, as they are erroneous, invalid, unenforceable and illegal.

3. The applicant seeks a further order that the respondents’ solicitors refund to him a sum of $25.

4. The orders made on 7 December, 2017 were set aside at one point in the life of these proceedings.  The matter came on for hearing, as I understand it, before another judge of this court, who, on the application of the applicant, made a further tranche of orders which, in effect if not in terms, set aside the orders to which I have referred as having been made on 7 December, 2017.  As I understand matters, that order itself, the latter order, was the subject of an appeal to the Federal Court.  That appeal was successful and the latter orders were set aside.  The effect of that was to revive the orders of 7 December, hence the respondent’s application to enforce the costs order. 

5. The applicant says that the orders of 7 December were erroneous, invalid, unenforceable and illegal, but no basis has been demonstrated in the argument or the material upon which I might reach that conclusion. 

6. The costs order was one which was within his Honour’s power to make, and it was expressed by the terms of the order to be made pursuant to the statutory provision in the Fair Work Act which permitted the making of costs orders in certain circumstances. The applicant, in his argument to me, reiterated his arguments that there are difficulties with the way this case has been conducted by the respondents’ lawyers and the various complaints that he has made throughout the course of these proceedings as reflected not only in his statement of claim, in its various forms, but also a document that I asked him to file for the purposes of dealing with order 4 in his response - an order that the respondents’ lawyers be removed from the case. I have considered those matters and I did so for the purposes of dealing with order 4 and found that there was no merit in any of them.

7. It is difficult to see on what basis one might conclude that the orders made by Judge Vasta were erroneous, invalid, unenforceable or illegal.  They were within power and they were orders that his Honour was able to make, should he be minded to do so.  Those orders have not been the subject of an appeal, and some time has passed now since the making of them.  Certainly, the appeal period for an appeal against those orders has well expired and even if one was to conclude that perhaps the appeal period should be seen as commencing on the re-enlivenment of those orders, consequent upon the Federal Court’s order setting aside the orders of Judge Egan, that period, too, has expired.  I do not want anybody to think that by making that observation, I am suggesting that, in fact, the period within which the orders of 7 December, 2017 might be appealed did not commence to run until after the delivery of the judgment in the Federal Court in the appeal from Judge Egan’s orders.  That is plainly incorrect.  But it demonstrates the delay that there has been in commencing any application for leave to appeal (because that is what it would have to be) against the orders of 7 December, 2017. 

8. The initial submissions made by the respondents against the orders was that this court has no power or jurisdiction to do what it is that the applicant wishes the court to do, but I think that submission is erroneous.  The court has power under rule 16.05 of this court’s rules to set aside or vary judgments or orders in certain circumstances, even if the order has been entered.  Rule 16.05(2) provides that the court might set aside the orders in a number of circumstances.  The first is that it was made in the absence of a party.  That is plainly not engaged here.  The second is that it was obtained by fraud.  I am not satisfied there was any fraud.  The third is that the order was interlocutory.  I will return to that.  The fourth is that it is an injunction or for the appointment of a receiver.  It is not one of those.  The next is that it does not reflect the intention of the court.  Plainly, the order reflected the intention of the court.  The next circumstance in which it might be set aside is if the party in whose favour it was made consents.  The respondents do not consent.  And finally, there are two grounds that deal with the making of clerical mistakes in a judgment or an order, or errors arising in the judgment or order from an accidental slip or omission.  There is no evidence that would suggest that those rules are engaged here.

9. To return to the question of setting aside the interlocutory order, ordinarily to do that, one might expect that an applicant for such an order would demonstrate that there has been some change in circumstances which would mean that the interlocutory order is no longer useful or serves a purpose.  It is really designed, it seems to me to be directed towards procedural type orders which get overtaken by events and which cannot be fulfilled and need to be varied or set aside to take account of new circumstances that have arisen since the order was made.  That is not the case here either. 

10. I am not satisfied that the orders made on 7 December, 2017 should be set aside, in full or at all.  No basis for setting aside those orders is demonstrated by the applicant, and the application is dismissed. 

ORDERS DELIVERED

1. This is an application for costs of an interlocutory application constituted by a response filed by the applicant to an application in a case filed by certain of the respondents in the proceedings last year.  The response was filed on 29 July 2019.  I dismissed the relief sought in paragraphs 1, 2, and 3 of that response, and I have earlier dismissed the relief in paragraph 4, and I have made a separate costs order in respect of the argument hearing, in respect of the relief sought in paragraph 4.  These reasons I am about to give in respect of the costs application by the respondents should also be considered with respect to the costs in respect of paragraph 4, because the application made by the applicant in the response was made as a whole and suffers from the same deficiencies. 

2. Costs should follow the event, ordinarily, in applications such as this, and no reason is demonstrated by the applicant to set aside the usual rule that costs should follow the event. One aspect of the matter that does arise is that part of the proceedings commenced by the applicant arises under the Fair Work Act, and by s.570 of the Fair Work Act, a party to proceedings in relation to a matter arising under the Act can only be ordered to pay costs incurred by another party, in accordance with s.570(2) of the Fair Work Act. That section provides that 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 the Fair Work Commission; or (ii), the matter arose from the same facts as the proceedings. Here, to the extent that s.570 is engaged, it seems to me that pursuant to s.570(2)(b), the costs order ought be made, because I am satisfied that this application was brought by reason of Mr Gambaro’s, unreasonable act or omission, which caused the other party to incur these costs.

3. Let me explain:  the respondents are the beneficiaries of a costs order that was made on 7 December, 2017.  I have already recounted the history of that costs order, but it is an extant order with which the applicant must comply.  He has not complied, according to the material, and so the respondents have brought an application to enforce that costs order.  In response, the applicant filed a response to which I have earlier referred.  In agitating his application that the orders made on 7 December 2017 should be set aside in full, on no basis whatsoever, and in agitating that the respondents’ lawyers and the “entire defence legal counsel” be removed, again, in circumstances which I found were baseless – which were not only baseless, but worse than that – I am satisfied that the applicant has engaged in conduct which might be described as an unreasonable act or omission which has caused the respondents to incur costs, that is the costs of meeting the relief that he sought in the response filed in July of 2019.

4. So in my view, there are two bases upon which the applicant ought pay the respondents’ costs: the first is the usual practice of costs following the event, but to the extent that s.570 is engaged in this case, I am satisfied, pursuant to s.570(2)(b), that the costs that have been incurred by the respondents in meeting the applicant’s claims in the response filed in July were incurred by reason of the applicant’s unreasonable act or omission, and I so find.

5. It is appropriate, then, to order – well, in terms of the form of order, two things occur to me.  I can make a separate order in respect of the application that I have just dealt with, or alternatively, I can discharge the earlier order that I pronounced today, in respect of order 4, and simply order that the response filed on 29 July 2019 be dismissed and that the applicant pay the respondents’ costs of and incidental to that response to be taxed.

RECORDED :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 9 April, 2020.

Associate: 

Date: 7 May 2020