Hopper v Crescent Capital Partners Management Pty Ltd
[2024] FedCFamC2G 237
•14 March 2024
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:
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 (Cth) (Court Act) by which the respondent seeks review of a particular order made by a Judicial Registrar of the Court (Registrar) on 6 July 2023 (costs order).
By orders made (by consent) on 16 August 2023, the Application has been determined “on the papers” without the need for a hearing, pursuant to s 136(4)(b) of the Court Act read together with r 15.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
EVIDENCE & SUBMISSIONS
Before the Court are the following Affidavits filed for the respondent in respect of the Application:
(a)Affidavit of Peter Lyon-Mercado sworn 13 July 2023; and
(b)Affidavit of Samuel Harvery affirmed 10 August 2023 (Harvery Affidavit).
The following Affidavits of the applicant also appear directed to the Application:
(a)Affidavit affirmed 19 July 2023 (July Affidavit)[1]; and
(b)Affidavit affirmed 14 August 2023 (August Affidavit).
[1] A seemingly identical version of the July Affidavit was filed a day earlier (18 July 2023). Each of those Affidavits exhibits a single Exhibit (marked “Exhibit 1”). The version exhibited to the July Affidavit includes one additional page, being a colour photograph of a mobile telephone lying in grass, displaying an email on its screen. The Court has assumed that the applicant intended for the July Affidavit to replace the version filed the preceding day. Accordingly, the Court has had regard only to the July Affidavit, and not to the version filed the day before.
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 Date
Time and date for hearing: 27/06/2023, 10:00 AM
Place: 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.
The Registrar explained to Mr Lyon-Mercado that simply emailing documents to the Court (as opposed to properly lodging them via the Court’s electronic portal) was the cause of said document not having reached the Court file. It appears to be for this reason that the Registrar adjourned the matter of her own motion (and in so doing, accommodated Mr Lyon-Mercado’s personal preferences/availability for the next fixture in doing so).[5]
[5] First transcript at T3.03 to T3.37
The Registrar informed the parties that she would adjourn the matter “for hearing onto 6 July 2023 at 2:15pm.”[6] The fixture of the matter as being “for hearing” was reflected by the terms of the order made by the Registrar on 27 June 2023 (June Order), namely (emphasis added):
1.The hearing of the proceeding be adjourned to 2:15 pm on 6 July 2023, such hearing to be conducted by Microsoft Teams.
[6] First transcript at T3.03
A copy of the June Order was sent to the parties under cover of email by the Registry on 28 June 2023 which stated (emphasis added):
I refer to the hearing before Judicial Registrar Wilson on 27 June 2023 and attach for your records a sealed copy of the orders made by the Registrar.
I confirm the hearing of this matter is adjourned to Thursday, 6 July 2023 at 2:15pm, to be conducted by Microsoft Teams.
At or about 9:21am on 5 July 2023 (being the day before the next hearing), the applicant replied to the email referred to at [14] above, to enquire as to whether the Response document (the lack of which had prompted adjournment of the first Court date) was now available to the Court.[7] He did so, presumably, to ensure that the next hearing fixture would not adjourn for the same reason as it had previously.
[7] Harvery Affidavit, Exhibit “E” at 16
At or about 12:38pm on 5 July 2023, the Registry responded by email to the parties to confirm that the Response sent to the Court on 27 June 2023 had since been processed.[8] A copy of the Response was also attached to that reply email.
[8] Harvery Affidavit, Exhibit “E” at 16
At or about 5:18pm on 5 July 2023 (being after Registry hours), Mr Lyon-Mercado replied to the email chain described in the preceding paragraph (Lyon-Mercado email), relevantly as follows:[9]
There is a possibility that I may not be able to attend the hearing tomorrow in which case I will ask my colleague, Eugen Lamotte, to attend. Eugen is an employee and is also Company Secretary. As set out in our response to Mr Hopper’s claim, we oppose the orders sought in his application and we will be seeking orders for a timetable for the parties to exchange evidence and then a final hearing date.
[9] Harvery Affidavit, Exhibit “E” at 15
No email was sent by the Court in reply to the Lyon-Mercado email. Nor particularly should one have been (see [80] to [81] below).
At 2:15pm on 6 July 2023, the Registrar commenced the hearing as scheduled. The applicant again appeared, unrepresented. As foreshadowed by the Lyon-Mercado email, Mr Lamotte appeared for the respondent. There is nothing before the Court to suggest that Mr Lamotte is a legal practitioner.
The Registrar commenced the hearing as follows:[10]
Before we commence, I just want to indicate that in the small claim jurisdiction, the proceedings are to occur with as little formality as possible. However, I will still ask you to observe the normal court procedures as if we were sitting in the courtroom. I’m going to ask Mr Hopper to address me first and then I’m going to ask Mr Lamotte to address me. Given the nature of these matters in terms of evidence being given alongside submissions, I’m going to ask that you both be sworn in before we commence. And I think that’s everything for the moment. Do you have any questions?[11]
[10] Harvery Affidavit, Exhibit “E” at 15
[11] Second transcript T02.21 to T02.28
Other than a respectful question from the applicant as to how he should appropriately address the Registrar,[12] neither he nor Mr Lamotte queried the proposed course foreshadowed.
[12] Second transcript T02.30 to T02.38
It was only after the applicant had completed his substantive submissions that the following exchange took place between the Registrar and Mr Lamotte:[13]
[13] Second transcript at T6.16 to T7.16
THE REGISTRAR: All right. Okay. I might just ask Mr Lamotte if he had any questions for you, Mr Hopper. Mr Lamotte, is there anything that you wanted to ask Mr Hopper, arising out of what he has just told the court?
MR LAMOTTE: No, I have no questions.
THE REGISTRAR: All right. Thank you. All right. Well, I might hear from Mr Lamotte now. And then I might come back to you after that, Mr Hopper. All right. So, Mr Lamotte, I’ve read the respondent’s response. Is there anything in particular you want me to look at or want to take me to?
MR LAMOTTE: Thank you, Registrar. No, it’s all as outlined. We oppose the orders sought in this application. And we will be seeking orders for timetable for the parties to exchange evidence and then a final hearing date.
THE REGISTRAR: All right. Today is the final hearing date, Mr Lamotte. So today is happening. That is what is happening today.
MR LAMOTTE: I was under the impression that – or I was told that this can be referred to a judge.
THE REGISTRAR: On what basis do you want to have it referred to a judge.
MR LAMOTTE: That is what I have been told.
THE REGISTRAR: By who?
MR LAMOTTE: By Peter Lyon-Mercado, so that we will be seeking orders for the timetable for the parties to exchange evidence and then ---
THE REGISTRAR: All right. Well, the order that I made on the previous occasion, which is 27 June 2023, was that the hearing of the proceeding be adjourned to 2.15 on 6 July 2023. And that was expressed, at the time, as being the final hearing.
MR LAMOTTE: Yes. I’m sorry. That’s ---
THE REGISTRAR: Are you ready to proceed today?
MR LAMOTTE: Is there an option to adjourn and postpone?
THE REGISTRAR: Well, you can make an application. And you would
MR LAMOTTE: Yes.
THE REGISTRAR: I would need to be satisfied that it is in the interests of justice to do so, noting that this is already the second return of the matter.
An adjournment request was made by Mr Lamotte to allow him to “ask Peter Lyon-Mercado to join as well”.[14] The Registrar stood the matter down for 15 minutes.[15] When the matter resumed, Mr Lyon-Mercado had not joined the hearing. Instead, a Mr Harvery (solicitor) was present in the Microsoft Teams forum, and sought leave to appear on behalf of the respondent.[16]
[14] Second transcript T07.44
[15] Second transcript T07.44 to T07.46
[16] Second transcript T08.22 to T09.02
The Registrar granted Mr Harvery leave to appear, on the following basis:[17]
I give you leave to appear on the application for an adjournment, but in circumstances where the applicant does have legal representatives in the background and is appearing in this jurisdiction in accordance with the rules without his legal representatives present, I don’t give you leave to appear beyond the question of the adjournment. I’m prepared to hear the basis upon which you’re seeking the adjournment today.
[17] Second transcript T08.43 to T09.02
Mr Harvery went on inform the Registrar that he “only came into the matter in the last couple of minutes”.[18] Submissions were then made by him for the respondent that, in respect of its desire for further procedural/timetabling orders[19] “…no advice was received from the court that that wouldn’t be an order made or considered.”[20]
[18] Second transcript T09.31
[19] Second transcript T09.30 to T09.31
[20] Second transcript T10.42 to T10.44
Thereafter ensued the following exchange (emphasis added):[21]
THE REGISTRAR: …I appreciate you’ve only just been brought into the matter, Mr Harvery, and I can understand that you’re bound by what you’re being instructed, but I conducted the last hearing, at which Mr Lyon-Mercado appeared. That application for a timetable was not pressed before me, and I inquired of both the parties if the matter was ready to proceed to final hearing, and at that time I received a positive response from both Mr Hopper and Mr Lyon-Mercado, at which point I listed for today, and in fact it was listed for today, I think, at the express request of Mr Lyon-Mercado because he had some personal matter that he had to attend to earlier in the week. So I’ve already had to accommodate the respondent in terms of timetabling this matter. Are you able to address me on why the request for a timetable to a final hearing was not pressed at the last hearing?
MR HARVERY: Well, not specifically I’m afraid, Registrar, other than to say, you know, the respondent is self-represented and there appears to have been a misunderstanding, for which I apologise. But I assure you, Registrar, that the respondent didn’t appreciate that the matter was listed for final hearing today, otherwise it would have been duly prepared for the matter to proceed today. The respondent wants the matter to be determined as well, but it also wants to be able to advance its case in a fulsome manner.
[21] Second transcript T11.03 to 11.21
The applicant made submissions to the effect that Mr Harvery had been corresponding with him for “well over a month…so he’s not new to the matter”,[22] following which the Registrar, of her own motion, asked the applicant: [23]
Is there any prejudice that you would suffer if I was to grant today’s adjournment that could not be addressed through an appropriate costs order?
[22] Second transcript T11.26 to T11.29
[23] Second transcript T11.37 to T11.38
The applicant replied that there was not. [24]
[24] Second transcript T11.40
The Registrar then returned to an exchange with Mr Harvery to ascertain why, if he had been involved in the matter for some time, he had told the Court that he had only just come into it, to which he gave the following answer: [25]
Registrar, what I meant was that I’ve come into the matter on the record today. I’ve only found out that the matter was listed for final hearing approximately 10 minutes before coming into this call. The – we have not been representing the respondent in the litigation. We have been corresponding with Mr Hopper on behalf of Crescent Capital. That’s correct.
[25] Second transcript T11.42 to T11.45
Various exchanges then ensued as to the nature of any evidence and witnesses the respondent was seeking additional time to prepare. The matter was stood down again briefly to enable Mr Harvery to take further instructions in this regard. Once the hearing resumed for a third time, and immediately prior to orders being made, the following exchange took place between the Registrar and Mr Harvery for the respondent (errors in original):[26]
THE REGISTRAR: All right. And do you have anything to say on the question of costs?
MR HARVERY: Registrar, Mr Hopper is self-represented and so we would submit therefore there’s no basis for a costs order to be made.
THE REGISTRAR: Well, on the basis that the applicant has conceded that he will suffer no prejudice that cannot be addressed by a costs order and on the basis that the respondent has indicated that there’s further evidence that they wish to file an lead at the final hearing, I’m prepared to grant a short adjournment of the final hearing. However, I will make an order for costs as I’m satisfied of the matters contained I section 570, subsection 2, subparagraph (b) of the Fair Work Act. In terms of – and I propose to set those costs according to the scale. Do – the date I’ve got for the adjourned hearing is 20 July. Will that suit the parties?
MR HOPPER: Yes.
MR HARVERY: Yes, Registrar.
THE REGISTRAR: Thank you. All right. I make the following orders:
[26] Second transcript T13.39 to T14.11
The orders (with notes) made by the Registrar at the conclusion of the hearing on 6 July 2023 (July Orders) were as follows:
THE COURT NOTES THAT:
A. The applicant appeared in person.
B. Mr S. Harvery was given leave to appear on behalf of the respondent on the application for an adjournment.
THE COURT ORDERS THAT:
1. The final hearing of this matter is adjourned to 20 July 2023 at 10:00am, such hearing to be conducted by Microsoft Teams.
2. On or before 13 July 2023, the respondent file and serve any material on which it intends to rely at the final hearing.
3. On or before 18 July 2023, the applicant file and serve any further material in reply on which he intends to rely at the final hearing.
4. The respondent pay the applicant’s costs of today’s adjournment set in the amount of $3,142.
5. Liberty to apply.
APPLICATION
Whether made in time
Rules 21.02 and 21.03 of the Rules provide for the following:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
21.03 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of the power under review.
On 13 July 2023, the respondent filed two documents as follows:
(a)a Form prescribed under r 4.01 of the Rules for an Application in a Proceeding. The form was left entirely blank (blank form). The blank form was lodged on the Court’s electronic portal at 3:10:00pm AEST on 13 July 2023 and accepted for filing at 4:08:17pm AEST on 13 July 2023; and
(b)the Application (albeit not prepared on the Form prescribed under r 4.01 of the Rules for an Application in a Proceeding). The Application was lodged on the Court’s electronic portal at 4:26:00pm AEST on 13 July 2023 and accepted for filing at 4:29:33pm AEST on 13 July 2023.
The effect of the blank form and Application each having been accepted for filing before 4:30pm on 13 July 2023, is that each was therefore filed within 7 days of the Registrar’s decision (even if, in the case of the Application, only by a matter of seconds): see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ.
It is open to infer that the respondent filed the blank form as some sort of placeholder document until such time as the Application was made. The Application having been made within time, the antecedent blank form is superfluous, irrespective of whether the respondent intended it to be a holding application. Being entirely devoid of substance, it is difficult to accept that a blank Court form could somehow have the effect of an application of substance having been “made”, even if it was accepted for filing within the prescribed time.
In any event, the Application was made within the time prescribed by r 21.02(1) of the Rules. Even if that were not so, the Court retains a discretion to extend time the for review of a Registrar’s decision: see r 21.02(2) of the Rules. In the instant case, the Court has itself delivered reasons for judgment in a timeframe which is beyond the intention of the Rules: see r 21.03(2) of the Rules, for which I apologise to the parties. Had an extension of time in which to seek review been sought, the inability of the Court to adhere to the intended timeframe of the Rules would have been a matter which I factored into the exercise of my discretion to extend time: see AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [20].
On 17 July 2023, the Application was docketed to me, and listed by the Court’s Registry for first return on 16 August 2023 at which the applicant appeared in person and the respondent was again represented by its solicitor. On that occasion I made orders by consent which included granting leave to the respondent to be represented by a lawyer pursuant to r 30.12 of the Rules, and reserving judgment to a time to be notified to the parties, to be delivered via Microsoft Teams.
By the Application, the respondent seeks the following relief:
1.An order pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) setting aside the costs order appearing at order 4 of the orders made in this proceeding by Registrar Wilson on 6 July 2023, as annexed.
2.No order as to costs.
Review principles
Section 256(1) of the Court Act has the effect that a party to a proceeding in which the Registrar has exercised delegated powers under s 254 Court Act, may apply to the Court for review of the exercise of that delegated power within a prescribed time.
In the present case, the Registrar had delegated power to make the costs order pursuant to
r 21.01 read together with item 17 of Table 21.1 of the Rules.Pursuant to r 21.04 of the Rules, Court must consider the Application on a de novo basis: see Bechara v Bates(2021) 286 FCR 166 per Allsop CJ, Markovic and Colvin JJ and AHH22 (supra) at [23] to [24]:
[23] As is now well‐established, the exercise of the Registrar’s delegated power derives its validity from the availability of review by a judge of this Court: see Bechara v Bates (2021) 286 FCR 166 at [3] per Allsop CJ, Markovic and Colvin JJ. The Registrar’s order, which was made on 10 November 2022, took effect as though it were an order of a judge of this Court, on the basis that a judge may be asked to make an order in place of the exercise of delegated authority.
[24] While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Bechara v Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 , were helpfully distilled by the Full Court in Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
Accordingly, while the Application is brought by the respondent (against whom the costs order was made), it is the applicant who bears the onus of establishing that the costs order ought remain. As Bechara (supra) makes plain, and contrary to submissions made by the applicant,[27] the Court does not examine the reasons of the Registrar for error, but considers the matter afresh for itself.
[27] Applicant’s written submissions 14 August 2023 at [2]
The respondent makes the point that it was the Registrar who raised the costs issue of her own motion, and that the applicant did not seek the costs order himself. The second transcript bears that out factually (see [27] above).
By his August Affidavit the applicant disputes that he did not seek the costs order, observing at [46] of the August Affidavit that, by his originating application, he in fact sought costs. A review of the originating application does show a remedy being sought for “LEGAL COSTS” in the sum of $3,828.00. Having been brought in the Fair Work Division of the Court, absent satisfaction of s 570 of the FW Act and the applicant overcoming the effect of r 30.10(3) of the Rules, the mere existence of a prayer for relief was not obviously, nor by its terms, an application for costs thrown away occasioned by the adjournment on 6 July 2023.
In any event, the cost order having been made by the Registrar on 6 July 2023, and the applicant now seeking to preserve that order in this de novo review, the Court is in effect being asked to consider whether the respondent should pay the applicant’s costs of the 6 July 2023 adjournment, set in the amount of $3,142 (or some other amount the Court considers appropriate).
COSTS IN THE FAIR WORK DIVISION
Sub-sections 548(5), (6) and (7) of the FW Act provides as follows:
548 Plaintiffs may choose small claims procedure
…
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
Rule 30.12 of the Rules provides similarly:
30.12 Lawyers—Fair Work Act small claims proceeding
(1) A party to a small claims application may not be represented by a lawyer without the leave of the Court.
(2) If the Court gives a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate.
(3) For the purposes of subrule (1), a party is not taken to be represented by a lawyer if the lawyer is an employee or officer of the party.
Having been brought as a small claims proceeding within the Court’s Fair Work Division, the proceedings are ones to which s 570 of the FW Act apply. That section provides as follows:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) 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 FWC;
(ii) the matter arose from the same facts as the proceedings.
In determining for itself whether the respondent ought be ordered to pay the applicant’s costs, the Court must be satisfied of each of the following matters, pursuant to s 570(2)(b):
(a)that there was an unreasonable act or omission on the part of the respondent;
(b)which caused the applicant to incur costs.
In the instant case, the unreasonable act or omission on the part of the respondent for the purposes of s 570(2)(b) is said to be its misunderstanding about the nature of the 6 July 2023 hearing, which caused it to be unprepared, and consequently necessitated the adjournment.
The misunderstanding
The nature of a first court date
As noted above at [8], at the time the proceedings were commenced they were initially listed for return at a first court date. The term “first court date” derives from specific provisions in the Rules, which provide as follows:
Division 10.1—First court date
10.01 Directions and orders
(1) At the first court date, the Court or a Registrar must give orders or directions for the conduct of the proceeding.
(2) Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceeding.
(3) Without limiting subrule (1), the Court or a Registrar may make orders or directions in relation to the following:
(a) manner and sufficiency of service;
(b) amendment of documents;
(c) defining the issues;
(d) filing affidavits;
(e) cross‑claims;
(f) joinder of parties;
(g) dispute resolution;
(h) admissibility of affidavits;
(i) discovery and inspection of documents;
(j) interrogatories;
(k) inspections of real or personal property;
(l) admissions of fact or of documents;
(m) giving particulars;
(n) giving evidence at hearing (including the use of statements of evidence and taking evidence by video link or telephone or other means);
(o) expert evidence and court experts;
(p) transfer of proceedings;
(q) costs;
(r) hearing date;
(s) any other matter that the Court or Registrar considers appropriate.
10.02 Adjournment of first court date
(1) If the parties agree that, because of short service or other special circumstances, it is not appropriate to proceed on the first court date fixed, the parties may ask a Registrar in writing to adjourn the first court date to another date.
(2) The Registrar may adjourn the first court date to the date requested by the parties or to another date that is practicable.
10.03 Fixing date for final hearing
At the first court date, the Court or a Registrar may:
(a) fix a date for final hearing; or
(b) direct the parties to arrange with the Registrar a date for final hearing; or
(c) fix a date after which either party may request a date for final hearing; or
(d) remove the matter from the list.
In SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 (SZWBH), the Full Federal Court (Mansfield, Tracey JJ and Mortimer J (as her Honour then was)) contemplated the nature of a first court date in this Court[28] and said the following at [36]:
Rule 10.03 of the Rules contemplates the first court date will not be used finally to determine a proceeding.
[28] In the context of the (then applicable) Federal Circuit Court Rules 2001 (Cth) which were relevantly identical to rr 10.01 to 10.03 (inclusive) of the current Rules.
Rule 30.10(3) of the Rules (which relates to small claims proceedings in the Fair Work Division of this Court) provides that the Court is not bound by rules of evidence and procedure when dealing with a small claims application, and may act in an informal manner without regard to legal forms and technicalities. Rule 10.03 (as understood by reference to SZWBH) is not inconsistent with r 30.10(3). Realistically, if parties to a small claims proceedings are ready to proceed at the first court date to have their matter heard with a view to it being determined, then provided it is convenient for the Court to hear it, such a course is both within the spirit and text of each of rr 10.01(2) and 30.10(3) of the Rules.
However (and having particular regard to SZWBH (supra) at [36]), even in small claims proceedings the fact the Court has a discretion to hear and determine proceedings at a first court date, does not mean that parties are necessarily expected to be prepared for a hearing at that stage of the proceedings to proceed to hearing at the first return of the matter.
The source of the misunderstanding
At the commencement of the first court date in this case, the Registrar asked each of the applicant and Mr Lyon-Mercado if the matter was “ready to proceed?”.[29]
[29] First transcript at T2.21
A legal practitioner of even basic experience would likely understand the Registrar to be asking whether the matter was ready to proceed to hearing and determination at that juncture. Each of the applicant and the representative of the respondent answered in the affirmative, indicating to the Registrar the matter was indeed ready to proceed to hearing.
It is open to infer, and I do, that neither of the applicant or Mr Lyon-Mercado understood the import of the Registrar’s question, because the matter was in fact not ready to be heard. At the least, that was because the respondent’s Response document had only been sent to the Court the day before, and it is unclear as to whether it had been served on the applicant.
The Registrar took the parties’ respective affirmative responses to her enquiry as to the readiness to proceed at face value as meaning that, aside from the Court’s need to locate the respondent’s Response document so that it could be placed on the file, there were no additional procedural steps to be undertaken and therefore that no further timetabling orders were being sought. On the basis of that understanding, the Registrar listed the proceedings in the manner expressed by the June Order (see [60] below).
I have reached these conclusions about the Registrar’s understanding from the following statement (in particular) made by her during the 6 July 2023:
That application for a timetable was not pressed before me, and I inquired of both the parties if the matter was ready to proceed to final hearing, and at that time I received a positive response from both Mr Hopper and Mr Lyon-Mercado, at which point I listed for today, and in fact it was listed for today
Contrary to the Registrar’s recollection as expressed above, she did not use the term “final hearing” when she asked the parties about their readiness, nor in the June Order (which was made in the presence of the applicant and Mr Lyon-Mercado). The parties were informed at the first Court date and by the June Order that the matter was being adjourned “for hearing” to 6 July 2023 at 2:15pm (see [13] and [14] above). I accept that the Registrar, quite legitimately, considered the terms “hearing” and “final hearing” as being synonymous, even if the parties failed to grasp that nuance. I also accept that the June Order was expressed as being a “hearing of the proceeding” (emphasis added). This expression which would have likely caused a legal practitioner to understand that the proceedings would be finally determined as a result of that hearing.
I am prepared to accept that (at least) Mr Lyon-Mercado did not share the Registrar’s understanding as to the nature of the next hearing fixture. I am also prepared to accept that despite what he had expressed in the email sent to the Registry the day before the first Court date about the need for further timetabling orders, he did not understand his response about readiness to proceed as meaning that no further orders would thereafter be sought. This understanding is consistent with:
(a)the content of the Lyon-Mercado email (see [17] above);
(b)Mr Lamotte’s stated understanding as expressed to the Registrar, which he said had come from what Mr Lyon-Mercado had told him;[30] and
(c)submissions made by Mr Harvery in support of the adjournment application.
[30] Second transcript T06.27 to T06.44
Next, there is nothing before me to indicate definitively that the Lyon-Mercado email had been read by the Registrar prior to the hearing on 6 July 2023. On one view it may have been, given that when Mr Lamotte announced his appearance at the commencement of the hearing, the Registrar immediately asked him whether he was “the company’s secretary”.[31] This lends itself to an inference that such information may have been gleaned from the Lyon-Mercado email which described Mr Lamotte thusly. However, the information about Mr Lamotte’s position description might equally have been given to the Registrar’s Assistant prior to the hearing as part of recording the parties’ appearances, such exchanges not customarily being captured by the transcript.
[31] Second transcript T02.10 to T02.18
In contrast, the second transcript indicates that the Registrar was entirely unaware of the existence of the Lyon-Mercado email.
As a result, and on balance, I am not satisfied that the Lyon-Mercado email had been brought to the Registrar’s attention.
Overall, I accept that the Registrar understood the proceedings were listed for a final hearing on 6 July 2023 on the basis that the parties had indicated they were ready for that to occur.
I also accept that neither Mr Lyon-Mercado nor Mr Lamotte understood that the listing on 6 July 2023 was for a final hearing and, they being relevant officers of the respondent, means that this was the understanding of the respondent.
Put simply, the Registrar and the respondent were at cross-purposes and the respondent misunderstood the nature of the hearing event on 6 July 2023. I also accept that it was the respondent’s misunderstanding, which caused that hearing to not be able to conveniently proceed.
Reasonableness of the respondent’s misunderstanding
For the purposes of applying s 570 to the instant case, the Court must therefore determine whether that misunderstanding on the part of the respondent was reasonable in the circumstances.
If the respondents were entirely without legal advice in respect of these proceedings, that question might be more quickly resolved. The question is somewhat more complicated by the fact that the respondent had access to legal advice in the lead-up to both the first Court date and the 6 July 2023 hearing.
It is clear from s 548 of the FW Act (as reflected in rr 30.10(3) and 30.12 of the Rules) that small claims proceedings are intended to be conducted as quickly, inexpensively and efficiently as possible. This is also consistent with the overarching purpose of the Court’s civil practice and procedure: see s 190 of the Court Act and r 1.03 of the Rules. The default restriction on the representation of parties by lawyers in small claims proceedings is clearly aimed at achieving those purposes. While the Court is not reviewing the decision of the Registrar for error, it is worthwhile recording that, contrary to the Registrar’s findings, whether the parties were aware (or otherwise) that each had engaged legal advisors, and were therefore on notice that the other may be incurring legal costs, is not a relevant consideration absent leave being granted that they be represented.
As Colvin J found in Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331 (Ghimire) at [18], small claims proceedings (emphasis added):
In such cases, the procedure was required to be conducted informally (as was recognised by the magistrate): s 548(3). Lawyers could be involved only if the [Court] granted leave: s 548(5).
It would fly in the face of the clear intention of the Parliament in proscribing legal representation without leave, that simply engaging lawyers to advise (whether that fact is known to the other party or not) could give rise to a costs exposure/liability to an opposing party, without said leave first being granted by the Court, such that the representation inured.
Before the Registrar, Mr Harvery represented that he “only came into the matter in the last couple of minutes”.[32] This appears to have been understood by the Registrar to mean that Mr Harvery had not previously been instructed in the matter and, presumably therefore, had limited knowledge of it. Indeed, had the submission been made to this Court, it would have been similarly understood. The applicant was able to counter that assertion by submissions to the effect that Mr Harvery had been corresponding with him for approximately a month on behalf of the respondent. The Registrar appears to have been satisfied with his later clarification that by this he intended to convey that he had only “come into the matter on the record today” and had only found out that the matter was listed for final hearing approximately 10 minutes before joining the Microsoft Teams forum. I raise this issue simply to highlight that care should be taken by legal practitioners as to the precision with which such information is conveyed, so as to avoid any confusion as to the timing, manner, and scope of their retainer and/or instructions.
[32] Second transcript T09.30 to T09.31
Before the Registrar, the applicant did not raise concerns (other than about the timing of Mr Harvery’s involvement) about the respondent’s legal representatives. By contrast, much is now sought to be made by the applicant’s August Affidavit about the conduct of the respondent, Mr Harvery and the firm by which he is employed (Gilbert + Tobin).
However, the Court is not assisted by such allegations. The costs order is not directed to penalising the respondent, either by reason of its own conduct,[33] nor any specific conduct of the solicitors it engaged to advise. Costs orders pursuant to s 570 of the FW Act are not intended to be punitive.
[33] Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 265 per Wilcox J
In respect of whether or not the respondent can be taken to have been advised about the nature of the hearing on 6 July 2023, Mr Harvery made submissions to the Registrar on 6 July 2023 that his firm had “not been representing the respondent in the litigation” but had “been corresponding with Mr Hopper on behalf of Crescent Capital.”[34]
[34] Second transcript T12.3 to T12.5
The applicant may well have his own views, theories and even suspicions about what advice Gilbert + Tobin might have given the respondent. However, on the material before me, while Gilbert + Tobin had been corresponding with the applicant for the respondent, there is nothing to objectively suggest that Mr Harvery (or anyone else from Gilbert + Tobin) had been retained to advise about, and/or appear at, the hearing fixtures on 27 June 2023 and 6 July 2023.
As such, I am prepared to accept that respondent’s failure to properly understand the nature of the hearing, such understanding being that of Mr Lyon-Mercado and Mr Lamotte (neither of whom are lawyers) should not be taken to be anything beyond that of a lay person.
Returning then to the understanding of the respondent (through its officers Messrs Lyon-Mercado and Lamotte), Mr Harvery made submissions to the Registrar to the effect that the respondent received no advice from the Court that that procedural orders would not be made on 6 July 2023.[35]
[35] Second transcript T10.41 to T10.44
The absence of response from the Court is not a factor which is persuasive in rendering the respondent’s misunderstanding reasonable or otherwise. By the Lyon-Mercado email, its author sought to correspond with the Court (outside of Registry hours) on the evening before the hearing, to foreshadow the respondent’s desired course/outcome. Even having regard to the informalities of small claims proceedings, the Court does not conduct hearings by email.
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.
The applicant was clearly in a position to proceed and did so, as is reflected by his ability to make fulsome submissions to the Registrar. In fact, the applicant appears to have been well-prepared and diligent in his prosecution of the proceedings, including a timely response to the Application, for all of which he is to be commended.
Even if am wrong in finding the respondent’s misunderstanding about the nature of the 6 July 2023 hearing fixture as being a final hearing was not unreasonable, I am not satisfied that the misunderstanding caused the applicant to incur costs.
There is authority to the effect that, where no appearance is properly recorded by a solicitor in proceedings (within the ambit of whatever rules of Court that might entail) a party has no entitlement to costs: see for example Diners Club Pty Ltd v Wakim [2006] FMCA 1038 at [7] to [9] per McInnis FM and Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) [2010] FCA 1224 per Logan J.
In the present case it is unnecessary to resolve the question of whether the existence (in the background) of the applicant’s legal advisors would suffice to entitle him to costs, for several reasons.
The first is that, whether or not the solicitors filed an appearance or were otherwise known by the respondent to be advising or correspondence on behalf of the applicant they were not, absent leave of the Court, permitted to represent him: see s 548 FW Act, r 30.12(1) of the Rules and Ghimire (supra) at [18] per Colvin J.
Unlike the limited grant of leave to the respondent to be represented by Mr Harvery for the purpose of the adjournment application only, the applicant did not at any time seek leave to be represented by any lawyer in the proceedings nor, more specifically, at the 6 July 2023 hearing.
Accordingly, the inability of that hearing to proceed, which responsibility lay with the respondent, did not cause the applicant to incur costs because he was not legally represented at that hearing within the meaning of s 548 of the FW Act nor r 30.12(1) of the Rules.
Next, in making the costs order, the Registrar indicated that she intended “to set those costs according to the scale”, following which the costs order was fixed in the sum of $3,142.
That reference to the Court’s “scale” in proceedings brought in the Fair Work Division of the Court (subject of course to s 570 of the FW Act) might be understood as being to Part 1 of Schedule 2 to the Rules (GFL scale), by reference to r 22.09 of the Rules, which rule provides as follows:
22.09Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
Note 1: For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.
Note 2: For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.
However, there is no item in the GFL scale which reflects the sum of $3,142.[37] The most relevant item of the GFL scale to the 6 July 2023 hearing is item 9 of Part 1 of Schedule 2 to the Rules, which provides the following:
[37] Noting that the current version of the Rules also applied as at 6 July 2023
9
Daily hearing fee
(a) for a short mention—$342.19; or
(b) for a half day hearing—$1,255.75; or
(c) for a full day hearing—$2,512.56
Given that the hearing on 6 July 2023 was listed at 2.15pm, it could at most have been considered a half day hearing. As such, even if:
(a)leave had been granted to the applicant to be represented at the hearing on 6 July 2023; and
(b)he had incurred costs by reason of that representation; and
(c)those costs were demonstrably wasted;
at most the scale amount to which he may have been entitled was $1,255.75, and I am not satisfied that the applicant is even entitled to such a sum.
That is because, even if I were wrong in the foregoing conclusions and somehow the existence of legal advisors (in the background) without leave was not a bar to the applicant being entitled to some recompense for wasted costs, the tax invoices[38] upon which the applicant seeks to justify a costs order do not bear out any wasted costs occasioned by the adjournment, much less the amounts of $3,142 or $1,255.75.
[38] Noting that there is also no evidence of payment having been made
Rather, the tax invoices issued to the applicant by Hall & Wilcox Lawyers indicate that work was undertaken for the applicant by his legal advisers in two tranches as follows:
(a)3 March 2023 to 26 June 2023;[39] and
(b)13 July to 19 July 2023.[40]
[39] Being invoices from Hall & Wilcox to the applicant invoices dated 6 April 2023, 22 May 2023 and 29 June 2023 and included within “Exhibit 1” of the applicant’s July Affidavit
[40] Being an invoice dated 26 July 2023 included in the additional unpaginated bundle marked “Exhibit 1” and annexed to the applicant’s August Affidavit
The tasks undertaken by the advisors as evidenced by the aforementioned invoice do not include any narratives which relate to preparation for (nor, obviously, to any attendance at) the 6 July 2023 hearing.
CONCLUSION
For the foregoing reasons I am not satisfied that the misunderstanding of the respondent which gave rise to the adjournment of the final hearing on 6 July 2023 was an unreasonable act or omission on its part, nor that the misunderstanding and/or adjournment caused the applicant to incur costs.
Accordingly, the relief sought by the Application should be granted. I will so order.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 March 2024
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