Hopper v Crescent Capital Partners Management Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hopper v Crescent Capital Partners Management Pty Ltd [2024] FedCFamC2G 237

File number(s): SYG 876 of 2023
Judgment of: JUDGE GIVEN
Date of judgment: 14 March 2024
Catchwords:

INDUSTRIAL LAW – COSTS – Small claims proceeding in Fair Work Division – whether misunderstanding of party that proceedings were listed for final hearing instead of further directions was an unreasonable act for purposes of s 570 of the Fair Work Act – whether existence of legal advisors not on record, and without leave to represent party, can give rise to a party incurring costs for purposes of s 570 of the Fair Work Act especially in small claims proceeding

INDUSTRIAL LAW – Review of Registrar’s decision awarding costs to unrepresented litigant in small claims proceeding where leave neither sought nor granted for legal representation
Legislation:

Fair Work Act 2009 (Cth) ss 548, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 136, 190, 254, 256

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.03, 4.01, 15.02, 21.01, 21.02, 21.03, 21.04, 22.09, 31.10, 30.12
Cases cited:

AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426

Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138

Bechara v Bates(2021) 286 FCR 166

Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) [2010] FCA 1224

Diners Club Pty Ltd v Wakim [2006] FMCA 1038

Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331

Lamb v Sherman (2023) 298 FCR 79

SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317
Division: Fair Work
Number of paragraphs: 101
Date of last submission/s: 14 August 2023
Date of hearing: Determined in Chambers
Place:  Sydney
The Applicant:  Unrepresented
The Respondent:  Mr Harvery, Gilbert + Tobin

ORDERS

SYG 876 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ASHADI HOPPER

Applicant
AND:

CRESCENT CAPITAL PARTNERS MANAGEMENT PTY LTD

Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:

1.Order 4 made by Registrar Wilson on 6 July 2023 is set aside. 

2.There is no order as to costs of the Application in a Proceeding filed for the respondent (at 4:26pm) on 13 July 2023.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

  1. Before the Court is an Application in a Proceeding (Application) made pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021

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Details
Case
[2024] FedCFamC2G 237
Decision Date

CaseChat Overview and Summary

In the matter of Hopper v Crescent Capital Partners Management Pty Ltd, the applicant, Mr Hopper, filed a small claims proceeding against the respondent, Crescent Capital Partners Management Pty Ltd, in the Fair Work Division of the Federal Circuit and Family Court of Australia. The dispute arose from a misunderstanding regarding the nature of a hearing scheduled for 6 July 2023. The primary legal issue before the Court was whether the respondent's misunderstanding that the hearing was not for final determination was unreasonable, and if so, whether this constituted an unreasonable act under s 570 of the Fair Work Act 2009 (Cth). Additionally, the Court had to determine if the presence of legal advisors, who were not on record and without leave to represent the party, could result in the party incurring costs under the same section, particularly in the context of a small claims proceeding.

The Court found that the respondent's misunderstanding was not unreasonable. This conclusion was based on several factors: both parties were unrepresented by legal practitioners, the Registry's initial email referred to the first court date as a "hearing," which might have caused confusion, and the respondent genuinely believed the 6 July 2023 hearing was for directions rather than a final determination. The Court also noted that there was no evidence suggesting the respondent sought or received specific advice about the nature of the hearing. Given these circumstances, the Court held that the respondent's actions were not unreasonable, and thus, there was no basis for awarding costs to the applicant under s 570 of the Fair Work Act.

The Court further addressed the issue of costs in small claims proceedings where a party has legal advisors without leave to represent them. The Court concluded that the existence of such advisors did not automatically result in the party incurring costs. The decision underscored the importance of clear communication by the Court to avoid misunderstandings and highlighted the need for the Registrar to ensure parties understand the nature of the proceedings, especially in cases where parties are not legally represented.

Orders

Orders of the court

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Background

Background to the litigation

The respondent and applicant each filed written submissions relating to the Application on 10 August 2023 and 14 August 2023, respectively. BACKGROUND The background to the Application is derived predominantly from documents on the Court file, the above-mentioned Affidavits and, in particular, transcripts of: (a)the first Court date on 27 June 2023, which forms Annexure “C” to the Harvery Affidavit (first transcript); and (b)the hearing on 6 July 2023. While forming Annexure “F” to the Harvery Affidavit, the Court has had regard to the transcript of 6 July 2023 as corrected by VIQ Solutions on 12 March 2024 (second transcript).[2][2] By [8] of the Harvery Affidavit a section of the second transcript was observed as having conflated statements of multiple speakers into one. The Court has reviewed the second transcript and agrees the correction (which is not reflected in the extract at [30] below) was warranted and the second transcript was therefore reissued by VIQ Transcripts. The second transcript was also amended to reflect the correct spelling of Mr Lamotte’s surname throughout. These proceedings were commenced by the applicant on 29 May 2023 as a small claims proceeding within the Fair Work Division of the Court pursuant to s 548 of the Fair Work Act 2009 (Cth) (FW Act) and Chapter 4, Part 30, Division 30.4 of the Rules. At the time the originating application was filed, it was made returnable at a “first court date” (see [51] below). The sealed Court backsheet which was then attached to the filed originating application bore, inter alia, the following information (emphasis added): Reason for Listing: First Court DateTime and date for hearing: 27/06/2023, 10:00 AMPlace: By Web Conference QS, Level 17, Law Courts Building 184 Phillip Street Queens Square, Sydney On 22 June 2023, the Registry wrote to the parties with information about various matters in advance of the first court date. By that email, the first court date was referred to on a number of occasions as “the hearing”. On 27 June 2023, the applicant appeared unrepresented before the Registrar at the first court date, which was held online using Microsoft Teams. For the respondent appeared a Partner, who is also its Finance Director, Mr Peter Lyon-Mercado.[3] The evidence before the Court indicates that Mr Lyon-Mercardo is not a legal practitioner.[4] [3] Lyon-Mercado Affidavit 13 July 2023 at [1] [4] First transcript at T02.13 At the commencement of the first court date, the following exchange took place: THE REGISTRAR: Thank you. Is this matter ready to proceed? MR HOPPER: Yes, it is. THE REGISTRAR: Mr Lyon-Mercado? MR LYON-MERCADO: Yes. Yes, it is. Yes. THE REGISTRAR: All right. I note that there is no material on the court file on behalf of the respondent. Did you wish to file either a response or any material, any opposition to the application, Mr Lyon-Mercado? MR LYON-MERCADO: We did file a response yesterday by email around 5 pm yesterday. THE REGISTRAR: All right. MR LYON-MERCADO: Yes. THE REGISTRAR: All right. Well, that material has not yet made its way to the court file, so I don’t have it in front of me. Who did you email it to? MR LYON-MERCADO: It was the vic. Vic registrar or vic at – it was the registry email address.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having received no response from the Court to the Lyon-Mercado email, the prudent assumption for the respondent to make was that the email had either not been seen by the Registrar or that, even if it had been, the respondent’s expressed preference may not be acceded to: see Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 at [36]. Conclusion regarding reasonableness In the interests of abundant clarity, and to avoid a misunderstanding such as occurred in the present case, it might have been preferable at the first court date for the Registrar to: (a)have more fulsomely explained to the parties the nature of the hearing which would take place on the next occasion; and/or(b)expressed the June Order by reference to the language of r 10.03(a) of the Rules as being a “final hearing” (see [60] above); and/or(c)asked the parties to confirm their understanding of the next hearing event and/or their understanding of the June Order, prior to adjourning. The above suggestions are also not intended as being any criticism, nor error on the part of the Registrar, just to say that the Registrar and the respondent were at cross-purposes and there were potential ways in which such confusion might have been avoided, particularly in a jurisdiction where parties are, by default, not legally represented. On balance, I am not satisfied that the respondent’s misunderstanding that the matter was listed other than for final hearing, was unreasonable. That is because: (a)much like the applicant, neither Messrs Lyon-Mercado and Lamotte were legal practitioners;(b)I accept that the initial email from the Registry[36] which referred to the first court date as being a “hearing” might have caused a lay person confusion when the term “hearing” was next (and more accurately) used; (c)I accept that a lay person might not have understood that readiness to proceed was a term of art relating to a final hearing and thus may have missed the meaning of the question and also the significance of the terms in which the June Order was made; (d)further to [84(b)] above, I also accept the submission made for the respondent that interchangeable nomenclature about the nature of the 6 July 2023 had been used by the Registrar at the first Court date may have contributed to its confusion and/or misunderstanding; (e)despite having legal advisors in the background, there is no evidence to indicate that the respondent sought, nor was given, advice specifically regarding the nature of the 6 July 2023 hearing; and (f)the correspondence and submissions from Mr Lyon-Mercado and Mr Lamotte was consistent with their each holding a genuine belief that the hearing on 6 July 2023 was to be in the nature of a directions hearing, rather than a deliberate strategy of evasion by the respondent. [36] See [9] above and respondent’s written submissions filed 10 August 2023 at [18(d)]Causation As now established, the hearing on 6 July 2023 was unable to conveniently proceed because of the respondent’s misunderstanding that it was not a final hearing.

Ratio Decidendi

Legal Principle Established

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