FEDERAL COURT OF AUSTRALIA
Health Services Union v Jackson (No 5) [2015] FCA 1467
Citation: Health Services Union v Jackson (No 5) [2015] FCA 1467 Parties: HEALTH SERVICES UNION v KATHERINE JACKSON;
KATHERINE JACKSON v HEALTH SERVICES UNIONROBERT ELLIOTT v HEALTH SERVICES UNION; HEALTH SERVICES UNION v ROBERT ELLIOTT, MICHAEL WILLIAMSON AND KATHERINE JACKSON
File numbers: VID 1042 of 2013
NSD 1501 of 2013Judge: TRACEY J Date of judgment: 22 December 2015 Catchwords: INDUSTRIAL LAW – practice and procedure – application for pre-judgment interest – relevant considerations for award of interest – application for lump sum costs order – whether s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) constrained the Court’s power to awards costs in proceedings brought under the Fair Work (Registered Organisations) Act 2009 (Cth) and the Corporations Act 2001 (Cth) – whether indemnity costs should be awarded where Calderbank offer made Legislation: Bankruptcy Act 1966 (Cth) s 55
Building and Construction Industry Improvement Act 2005 (Cth)
Corporations Act 2001 (Cth) s 1335(2)
Fair Work Act 2009 (Cth) s 570(1)
Fair Work (Registered Organisations) Act 2009 (Cth) s 329(1)
Federal Court of Australia Act 1976 (Cth) ss 43, 51A(1)(a), 51A(2)(a)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(1)
Racial Discrimination Act 1975 (Cth)
Workplace Relations Act 1996 (Cth) ss 170CP(1), 170CS(1), 824Cases cited: Alpine Hardwoods(Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 – cited
Bahonko v Sterjov (2008) 166 FCR 415 – considered
Black v Lipovac (1998) 217 ALR 386 – cited
Calderbank v Calderbank [1975] 3 All ER 333 – cited
Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (No 2) (2013) 209 FCR 464 – followed
Cutts v Head [1984] Ch 290 – cited
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 – cited
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 – cited
Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371 – cited
Hamod v New South Wales (2002) 188 ALR 659 – cited
Harrison v Schipp (2002) 54 NSWLR 738 – cited
Health Services Union v Jackson (No 4) [2015] FCA 865 – cited
Kazar v Kargarian (2011) 197 FCR 113 – cited
Melbourne Stadiums Limited v Sautner (2015) 229 FCR 221 – cited
Perry v Comcare (2006) 150 FCR 319 – cited
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 – cited
Seven Network Ltd v News Ltd [2007] FCA 2059 – cited
Smallacombe v Lockyer Investment Company Pty Ltd (1993) 42 FCR 97 – cited
Sony Entertainment Australia Limited v Smith (2005) 215 ALR 788 – cited
Telstra Corporation Limited v Phone Directories Company Pty Ltd (No 3) [2014] FCA 949 – citedDate of hearing: Determined on the papers Date of last submissions: 4 November 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the…
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Details
- Case
- [2015] FCA 1467
- Decision Date
CaseChat Overview and Summary
The case of Health Services Union v Jackson (No 5) involved the Health Services Union seeking pre-judgment interest and costs from Ms Jackson. The matter was before the Federal Court of Australia, which was required to determine whether it had the discretion to award pre-judgment interest and lump sum costs under the relevant legislation. The Union argued for interest at the rate of the Reserve Bank of Australia’s cash rate plus 4%, as advised by the Court’s Practice Note CM 16, and sought a lump sum costs order.
The Court examined the statutory provisions and considered the purpose of pre-judgment interest, which is to compensate a successful applicant for being kept out of their monetary entitlements. Under section 51A of the Federal Court of Australia Act 1976, interest can be awarded unless good cause is shown to the contrary. The Court found that no such good cause had been demonstrated by Ms Jackson. Furthermore, the Court noted its broad discretion to award interest at a rate it deems fit. The Union's calculations, which took into account adjustments favourable to Ms Jackson, were accepted by the Court.
In conclusion, the Court awarded pre-judgment interest to the Union at the rate specified by Practice Note CM 16 and granted a lump sum costs order. The respondent was ordered to pay $554,215.67 by way of judgment interest, and the third cross-respondent was ordered to pay $86,633.81 to the respondent/cross-claimant by way of judgment interest. Additionally, the respondent was required to pay the Union's costs in the amount of $356,500 as a lump sum.
The Court examined the statutory provisions and considered the purpose of pre-judgment interest, which is to compensate a successful applicant for being kept out of their monetary entitlements. Under section 51A of the Federal Court of Australia Act 1976, interest can be awarded unless good cause is shown to the contrary. The Court found that no such good cause had been demonstrated by Ms Jackson. Furthermore, the Court noted its broad discretion to award interest at a rate it deems fit. The Union's calculations, which took into account adjustments favourable to Ms Jackson, were accepted by the Court.
In conclusion, the Court awarded pre-judgment interest to the Union at the rate specified by Practice Note CM 16 and granted a lump sum costs order. The respondent was ordered to pay $554,215.67 by way of judgment interest, and the third cross-respondent was ordered to pay $86,633.81 to the respondent/cross-claimant by way of judgment interest. Additionally, the respondent was required to pay the Union's costs in the amount of $356,500 as a lump sum.
Orders
Orders of the court
1. The respondent pay the applicant $554,215.67 by way of judgment interest.
2. Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) the respondent pay the applicant’s costs by way of a lump sum order fixed at $356,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. The third cross-respondent pay the respondent/cross-claimant $86,633.81 by way of judgment interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Union’s written submissions were served on Ms Jackson. She has not filed any answering submissions. Her trustee in bankruptcy has advised the Court that, unless it is proposing to make any orders against him, he does not wish to be heard on the issues of interest and costs.PRE-JUDGMENT INTEREST Section 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) relevantly provides that:“(1)In any proceedings, for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either: (a)order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or(b) …” This provision does not authorise the awarding of interest upon interest: see s 51A(2)(a). Section 51A is “designed to compensate a successful applicant for the fact that he or she has been kept out of his or her due monetary entitlements … while his or her claims are made, litigated and determined”: see Kazar v Kargarian (2011) 197 FCR 113 at 136 (Foster J). If an order is sought under the section it will be made “unless good cause is shown to the contrary.” No such “good cause” has been demonstrated in these proceedings. The Court has a broad discretion, under s 51A, “to award interest at such rate or rates as it thinks fit for such period or periods as it thinks fit on the whole or on part of the monetary award”: Kazar at 136. The Court’s Practice Note CM 16 advises litigants that they should expect that the Court will have regard to the Reserve Bank of Australia’s cash rate plus 4% (adjusted at six monthly intervals on 1 January and 1 July each year) when calculating interest to be paid under s 51A(1)(a). I consider that it is appropriate to adopt these rates in calculating pre-judgment interest in the present proceedings. The Union has undertaken the calculations using the guidance provided by Practice Note CM 16. It has also made a series of adjustments which are wholly favourable to Ms Jackson’s interests in order to take account of reductions in compensation claimed and the periods to which the deductions are attributable. The Union’s calculations and the methodology it employed are explained in its written submissions. A copy of the relevant part of the submissions is Attachment A. These calculations support the claims made for pre-judgment interest in each proceeding and I accept them. The orders sought in each proceeding will be made. Of the $554,215.67 to be awarded in the Victorian proceeding, $543,040.06 is attributable to the period up to 26 June 2015 and $11,175.61 to the period between 27 June and 2 September 2015.
Ratio Decidendi
Legal Principle Established
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