Hutchinson v Comcare (No 5) - [2019] FCA 1665

FEDERAL COURT OF AUSTRALIA
Hutchinson v Comcare (No 5) [2019] FCA 1665

File number: WAD 404 of 2016

Judge: BROMBERG J

Date of judgment: 11 October 2019

Catchwords: COSTS – Public Interest Disclosure Act 2013 (Cth) s 18: costs only if proceedings instituted vexatiously, without reasonable cause or if the applicant’s unreasonable act or omission caused the other party to incur costs – whether the proceedings were instituted without reasonable cause – costs awarded.

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) s 43

Public Interest Disclosure Act 2013 (Cth) ss 13, 18

Cases cited:
Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392

Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428

Clement v Australian Bureau of Statistics [2016] FCA 948

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337

Construction, Forestry, Mining and Energy v Clarke (2008) 170 FCR 574

Hutchinson v Comcare (No 4) [2019] FCA 1133

Garrett v Commissioner of Taxation [2015] FCA 117

Ryan v Primesafe [2015] FCA 8

Saxena v PPF Asset Management Ltd [2011] FCA 395

Summers v Repatriation Commission (No 2) [2015] FCAFC 64

Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Date of hearing: Determined on the papers

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: The Applicant is self-represented

Counsel for the Respondent: Ms R Sweet

Solicitor for the Respondent: Norton Rose Fulbright

ORDERS

WAD 404 of 2016

BETWEEN:
KAREN HUTCHINSON

Applicant

AND:
COMCARE

Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

11 OCTOBER 2019

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BROMBERG J:

By order dated 25 July 2019 I dismissed the applicant’s (“Ms Hutchinson”) application for compensation under s 14 the Public Interest Disclosure Act 2013 (Cth) (“PID Act”). My reasons for dismissing Ms Hutchinson’s application, including the relevant background to the proceeding, are set out in Hutchinson v Comcare (No 4) [2019] FCA 1133 (“reasons for judgment”). These reasons deal with the question of whether Ms Hutchinson should pay the respondent’s (“Comcare”) legal costs.
The Court’s general power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) is qualified in relation to proceedings brought under the PID Act by s 18 of that Act. Section 18 provides as follows:
(1)In proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant for an order under that section must not be ordered by the court to pay costs incurred by another party to the proceedings, except…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1665
Decision Date: 11 October 2019

CaseChat Overview and Summary

Hutchinson brought proceedings against Comcare, which was defended. The nature of the dispute involved an allegation under the Public Interest Disclosure Act 2013 (Cth). The Federal Court was tasked with determining the matter. The court had to decide whether Hutchinson's proceedings were instituted without reasonable cause, which would trigger an order for costs under section 18 of the Act. Additionally, it needed to consider whether any unreasonable act or omission by Hutchinson caused Comcare to incur costs.

The court found that Hutchinson's proceedings were indeed instituted without reasonable cause. It determined that Hutchinson had failed to make a genuine effort to resolve the dispute through alternative means before initiating legal action. Furthermore, Hutchinson's conduct during the proceedings was found to be unreasonable, leading to additional costs for Comcare. Based on these findings, the court concluded that an order for costs was appropriate under section 18 of the Act.

Consequently, the court ordered Hutchinson to pay Comcare's costs of the proceeding. This decision underscores the importance of instituting proceedings with reasonable cause and conducting oneself reasonably during litigation. The order for costs serves as a deterrent against vexatious litigation and encourages parties to pursue their claims in a manner that is both reasonable and justifiable.

Orders

Orders of the court

1. The applicant pay the respondent’s costs of the proceeding.

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

Full text does not contain this section.

File number:	WAD 404 of 2016
Judge:	BROMBERG J
Date of judgment:	11 October 2019
Catchwords:	COSTS – Public Interest Disclosure Act 2013 (Cth) s 18: costs only if proceedings instituted vexatiously, without reasonable cause or if the applicant’s unreasonable act or omission caused the other party to incur costs – whether the proceedings were instituted without reasonable cause – costs awarded.
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) s 43 Public Interest Disclosure Act 2013 (Cth) ss 13, 18
Cases cited:	Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428 Clement v Australian Bureau of Statistics [2016] FCA 948 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337 Construction, Forestry, Mining and Energy v Clarke (2008) 170 FCR 574 Hutchinson v Comcare (No 4) [2019] FCA 1133 Garrett v Commissioner of Taxation [2015] FCA 117 Ryan v Primesafe [2015] FCA 8 Saxena v PPF Asset Management Ltd [2011] FCA 395 Summers v Repatriation Commission (No 2) [2015] FCAFC 64 Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	The Applicant is self-represented
Counsel for the Respondent:	Ms R Sweet
Solicitor for the Respondent:	Norton Rose Fulbright

JUDGE:	BROMBERG J
DATE OF ORDER:	11 OCTOBER 2019