FEDERAL COURT OF AUSTRALIA
Hutchinson v Comcare (No 2) [2017] FCA 370
File number: VID 861 of 2015 Judge: BROMBERG J Date of judgment: 7 April 2017 Catchwords: COSTS – Fair Work Act 2009 (Cth), s 570(2)(b) – whether manifestly defective pleadings prepared by an unrepresented litigant amount to “unreasonable acts or omissions” – defects attributable to lack of capacity of unrepresented litigant not “unreasonable” – no order as to costs Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) s 43
Cases cited: Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574
Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275
Hutchinson v Comcare [2017] FCA 136
Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Date of hearing: Determined on the papers Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The applicant is self-represented Counsel for the Respondent: Ms R Sweet Solicitor for the Respondent: Norton Rose Fulbright Australia ORDERS
VID 861 of 2015 BETWEEN: KAREN HUTCHINSON
Applicant
AND: COMCARE
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
7 APRIL 2017
THE COURT ORDERS THAT:
1.There be no further order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
By the operation of my self-executing order dated 26 October 2016, the Second Further Originating Application of the applicant (“Ms Hutchinson”) was dismissed on 6 February 2017. By an interlocutory application dated 29 January 2017, Ms Hutchinson applied to set aside that self-executing order before it came into effect. On 6 February 2017 I dismissed Ms Hutchinson’s interlocutory application. My reasons for dismissing the interlocutory application, including the relevant background to the proceeding as a whole, are set out in Hutchinson v Comcare [2017] FCA 136.
The respondent (“Comcare”) now seeks its costs of the proceeding.
In broad terms, I dismissed the Ms Hutchinson’s application because she had proved incapable of pleading a reasonable cause of action, despite having been provided with leave to make five attempts at drafting a statement of claim. Ms Hutchinson had prepared each of those pleadings unassisted by any lawyer. My orders of 26 October 2016 gave Ms Hutchinson conditional leave to file and serve a proposed Fourth Further Amended Statement of Claim if that document had been prepared and certified by a lawyer. When she was unable to secure representation and thereby exercise that leave, the self-executing order dismissing the application took effect.
The Court’s general power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is qualified in relation to proceedings brought under the Fair…
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- Case
- [2017] FCA 370
- Decision Date
CaseChat Overview and Summary
The court, guided by the purpose of section 570 to ensure access to justice, examined if Ms Hutchinson's conduct amounted to unreasonable acts or omissions. The court acknowledged the need for leniency towards unrepresented litigants, noting that their actions are viewed more sympathetically. The court found that while Ms Hutchinson's conduct was inefficient and resulted in the filing of defective pleadings, it did not rise to the level of unreasonableness warranting a costs order. The court emphasised the exceptional circumstances under which costs could be awarded under section 570, aligning with the broader purpose of ensuring access to justice without unduly discouraging genuine litigants.
As a result, the court decided not to make any further order regarding costs. This decision was made in light of the considerations that the potential for costs orders should not disproportionately impact unrepresented litigants. The court's ruling underscored the importance of balancing the need for procedural fairness with the protection of unrepresented litigants from the harsh consequences of costs orders.
Orders
Orders of the court
1. There be no further order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
At the hearing of Comcare’s strike-out application on 26 October 2016, I awarded Comcare its costs thrown away by reason of the filing of the Third Further Amended Statement of Claim. I gave ex tempore reasons for determining that my discretion to do so under s 570(2) had been enlivened by Ms Hutchinson’s unreasonable acts or omissions. I there said that there does come a point at which errors compounded upon other errors in circumstances where both notice of the errors or deficiencies and the potential for costs consequences, should they be repeated, mandate that the continuance of error is unreasonable.Consideration I generally agree with the observations of Mortimer J in Ryan v Primesafe [2015] FCA 8 at [64], as endorsed by the Full Court (Siopis, Collier and Katzmann J) in Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8], that the purpose of s 570 of the FW Act is to ensure that fear of a costs order does not discourage genuine litigants from pursuing cases with reasonable cause. The provision is concerned with access to justice. With this in mind, the occasions upon which costs will be awarded under s 570 are likely to be exceptional: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275 at [60] (Black CJ, North and Mansfield JJ). The fact that a party has conducted litigation inefficiently, made late concessions, or adopted a misguided approach will be relevant to, but not conclusive of, the party having acted unreasonably in a sense relevant to s 570(2)(b): Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574 at [29] (Tamberlin, Gyles and Gilmour JJ). Besides the filing of the Third Further Amended Statement of claim, to which I will shortly return, I am not persuaded that Ms Hutchinson’s conduct in the proceeding, pointed to by Comcare in its submission, amounted to unreasonable acts or omissions for the purposes of s 570(2)(b). Comcare referred me to the case of Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] (Hodgson CJ). However, I do not consider that case to be of any assistance to Comcare in circumstances where the Court’s discretion to make a costs order is constrained by s 570. As the passage cited by Comcare contemplates, a court does have to make allowances for the position of unrepresented litigants. The actions of unrepresented litigants will be viewed more sympathetically by courts in relation to costs than the actions of represented parties. In Bhagat that proposition manifested as an order for the unrepresented litigant to pay party-party costs in circumstances where a represented party would likely have been liable for indemnity costs. The rationale for that approach is bolstered in relation to proceedings brought under the FW Act by the purpose of s 570 as outlined above. It is important to ensure that the disincentive of potential costs orders do not impact more severely upon persons unable to obtain legal representation.