Ianna v Uniting Resources

[2018] FCCA 2412

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNA v UNITING RESOURCES & ORS [2018] FCCA 2412

Catchwords:
INDUSTRIAL LAW –Application for costs thrown away following adjournment of Hearing date due to ill-health of Applicant – application dismissed subject to outcome of Final Hearing.

Legislation:

Fair Work Act 2009, s.570

Cases cited:

Hagos v Volvo Group Australia Pty Ltd [2016] FCCA 688

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20

Applicant: RHONDA IANNA

First Respondent: UNITING RESOURCES

Second Respondent: MEREDITH YABSLEY

Third Respondent: CLAUDIA BELS

Fourth Respondent: JOHN BRUNTON

Fifth Respondent: JANE FRY

Sixth Respondent: IAN GRAY

Seventh Respondent: GEOFFREY JOHNSON

Eighth Respondent: JOHN KITCHENER

Ninth Respondent: JOHN MARTIN

Tenth Respondent: PETER NORMAN

Eleventh Respondent: SCOTT STANTON

Twelfth Respondent: LYNNE THOMSON

Thirteenth Respondent: ROXANNE HARRIS

File Number: SYG 1594 of 2017

Judgment of: Judge Altobelli

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Fagir

Solicitors for the Applicant: Hall Payne

Counsel for the Respondents: Mr Stewart

Solicitors for the Respondents: Williamson Barwick

ORDERS

1. The Respondent’s application for costs thrown away, arising out of the adjournment of the substantive proceedings that was granted on 18 June 2018, be dismissed, subject to the outcome of the final proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYG 1594 of 2017

RHONDA IANNA

Applicant

And

UNITING RESOURCES

First Respondent

MEREDITH YABSLEY

Second Respondent

CLAUDIA BELS

Third Respondent

JOHN BRUNTON

Fourth Respondent

JANE FRY

Fifth Respondent

IAN GRAY

Sixth Respondent

GEOFFREY JOHNSON

Seventh Respondent

JOHN KITCHENER

Eighth Respondent

JOHN MARTIN

Ninth Respondent

PETER NORMAN

Tenth Respondent

SCOTT STANTON

Eleventh Respondent

LYNNE THOMSON

Twelfth Respondent

ROXANNE HARRIS

Thirteenth Respondent

REASONS FOR JUDGMENT

Introduction

1. The Respondent in the substantive proceedings, Uniting Resources, brings an Application for its costs thrown away as a result of the Court granting to the Applicant, on 18 June 2018, an adjournment of a three-day hearing that was due to commence on 19 June 2018. The adjournment was granted by the Court on the basis that the Applicant was not medically fit to proceed with the hearing. The matter has been adjourned to a future date for hearing as a special fixture. The Court reserved costs, and granted leave to the Respondents to address the issue of costs.

2. The Respondents seek to have the Applicant pay the costs thrown away by the adjournment, as agreed or assessed. The Applicant opposes the making of the Costs Order and, in effect, seeks to have the Application for Costs dismissed.

3. The material relied on by the parties in the Application consisted of the Respondent’s submissions filed 21 June 2018, the Applicant’s submissions on costs filed 25 June 2018, and the Respondent’s submissions in reply filed 5 July 2018.

The applicable law

1. The substantive proceedings are brought under the Fair Work Act 2009 (Cth). s.570 of the Fair Work Act (supra) deals with costs. It is in the following terms:

   (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.

   A number of matters become obvious from a reading of this section. Firstly, it relates to proceedings. Thus a party to proceedings may be ordered to pay costs. The heading to the section is that “Costs only if proceedings instituted vexatiously”. Moreover, when one turns to subsection 2 it catalogues a number of situations where a Court may order a party to pay costs. Paragraph (a) is in circumstances where “the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause.” Paragraph (b) refers to the Court being “satisfied that the party's unreasonable act or omission caused the other party to incur the costs.” Paragraph (c) refers to the Court being satisfied of both of the following: firstly, that a party “unreasonably refused to participate in a matter before” Fair Work Australia; and secondly, “the matter arose from the same facts as the proceedings.”

Discussion

1. One would have thought that the obvious problem confronting the Respondents in an Application for costs thrown away as a result of an adjournment granted is that none of the matters referred to in subsection 2 have been established. Thus, for example, the Court could not possibly be satisfied, prior to the Final Hearing, about a party having instituted proceedings vexatiously or without reasonable cause. Indeed, all of the evidence presently before the Court, albeit untested, at least creates the impression of an arguable case.

2. Moreover, paragraph (b) of sub section 2 is not established. The Court cannot possibly, at this stage of the proceedings, make a determination about a party’s unreasonable act or omission. The adjournment was granted because the Court was satisfied pertaining to matters of the Applicant’s ill health. It is conceivable, at the Final Hearing, that the Court could become satisfied that, for example, there was no ill health; but that, of course, can only be established once the evidence has been tested.

3. Thus, on a literal reading of s.570, it is impossible to see how an order for costs thrown away can be made during the course of proceedings under the Fair Work Act (supra).

4. Counsel for the Respondent placed significant weight on a decision of His Honour Judge Jarrett in Hagos v Volvo Group Australia Pty Ltd [2016] FCCA 688. Indeed, in that decision, His Honour did in fact make an Order for costs thrown away. However, none of the matters as to the Court’s power to make such a costs order under s.570 of the Fair Work Act (supra) that were placed before me in the course of the learned submissions made on behalf of the parties were placed before His Honour Judge Jarrett. The mere fact that His Honour has made the Order does not constitute a binding authority on this Court to make a similar Order.

5. In the submissions that have been filed on behalf of the Respondents in support of their Application for costs thrown away, much was said about the persuasive effect that a decision such as Hagos v Volvo Group Australia Pty Ltd [2016] FCCA 688 should have. With respect, in a context where there are legal issues to be examined and arguments placed about the interpretation of a section of legislation that otherwise has a clear policy purpose, the Court does not agree. No issue of judicial comity applies in a case like this. His Honour Judge Jarrett did not have the benefit of the legal argument that the present Court had.

6. Accordingly, whilst the Court recognises that His Honour clearly felt empowered to make an Order for costs thrown away in an Application which bears some similarity to the present one, His Honour’s decision places no limitations on the present Court’s decision, either as legal authority or otherwise.

7. The submissions made on behalf of the Applicant are compelling. The proceedings are under the Fair Work Act (supra). Section 570 is in clear terms. The argument that the section does not apply to an order for costs thrown away is seriously put, and warrants attention. Counsel refers to the decision of the Full Court of the Federal Court in Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20, and specifically at paras.156 and 157 of the Judgment:

   [156] The word “proceeding” is not defined in the Fair Work Act. In the context of s 570 it bears a different meaning from the word “matter”. “Matters”, in the sense of claims or causes of action or their underlying controversies, are raised in the “proceeding” or “proceedings” which is or are prosecuted in the Court: cf Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091 at [22] (Jessup J). As Gray J said in Geneff v Peterson (1986) 19 IR 40 at 90, in dealing with the construction of s 197A of the Conciliation and Arbitration Act 1904 (Cth) (a predecessor of s 570):

   “[T]he section operates in relation to a ‘proceeding’. There is only one proceeding before the Court, although that proceeding involves a number of separate claims, each of which might have been the subject of a separate proceeding. ... In my view, it is impossible to split the claims within a proceeding for the purpose of the application of s 197A.”

   See also Qantas Airways Limited v Transport Workers Union of Australia (No 2) [2011] FCA 816; (2011) 211 IR 119 at 182 (Moore J); Grout v Gunnedah Shire Council (No 3) (1995) 59 IR 248 at 260-1 (Moore J); Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 at 65 and 69.

   [157] There was a single proceeding which was commenced and prosecuted to judgment in the County Court. Mr Sautner made claims under the Fair Work Act and at common law. The claims under the Fair Work Act were “matters” within the meaning of s 570(1) of the Fair Work Act. The proceeding was, as a result, a proceeding in relation to a matter arising under that Act. Section 570(1) operated to preclude the Court from ordering MSL (‘another party to the proceedings’) to pay any costs incurred by Mr Sautner in prosecuting his claims unless he could satisfy the Court that one of the exceptions, provided for in s 570(2), applied.

8. What this Court derives from that decision is that the proceedings contemplated for the purposes of s.570 constitute a single proceeding, and not a series of steps in proceedings. Thus, the Court accepts, it follows that an Order for costs incurred in connection with an adjournment application can only be made on conclusion of the proceedings, and subject, of course, to the Court being satisfied about the requirements of s.570(2).

9. In any event, the Applicant is correct in pointing out that the Respondents’ submissions do not identify any of the matters referred to in s.570(2) which would give rise to the making of a costs order. The Court accepts that the power to award costs pursuant to s.570 is exceptional. It must be exercised cautiously, and only where the occasion for its exercise is clearly demonstrated. Those factors have not been established in the material that has been placed before the Court.

Conclusion

1. The application for costs thrown away, arising out of the adjournment of the substantive proceedings that was granted on 18 June 2018, is dismissed, subject to the outcome of the final proceedings. The issue of costs can be revisited at that stage.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 13 September 2018