KASSIS v Republic of Lebanon (No.2)

[2014] FCCA 435

FEDERAL CIRCUIT COURT OF AUSTRALIA

KASSIS v REPUBLIC OF LEBANON (No.2) [2014] FCCA 435

Catchwords:
PRACTICE AND PROCEDURE – Costs – whether to award costs on indemnity basis – whether to award costs pursuant to s.570(2) of the Fair Work Act 2009 (Cth).

Legislation:  

Fair Work Act 2009 (Cth) s.570

Cases cited:
Mayberry v Kijani Investments Pty Ltd as trustee for The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238
Air-Cell Innovations Pty Ltd v Tanwing International Pty (No 2) [2006] FCA 1266

Applicant: VIVRONIA KASSIS

Respondent: REPUBLIC OF LEBANON

File Number: SYG 256 of 2012

Judgment of: Judge Raphael

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Sydney

Delivered on: 10 March 2014

REPRESENTATION

Solicitors for the Applicant: Landerer & Company

For the Respondent: No appearance

ORDERS

1. No order as to costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 256 of 2012

VIVRONIA KASSIS

Applicant

And

REPUBLIC OF LEBANON

Respondent

REASONS FOR JUDGMENT

1. In this matter judgment was handed down on 14 February 2014 in favour of the applicant.  The applicant has made representations as to costs, which she seeks on an indemnity basis. The applicant claimed damages in the sum of $695,913.80 and interest on those damages of $153,414.20, for a claimed total figure, including costs, of $843,328.00.  These amounts do not reflect the amounts awarded by the court, they are also not helpful in determining what costs were being sought: the addition of the two sums being $849,328.00.

2. In Air-Cell Innovations Pty Ltd v Tanwing International Pty (No 2) [2006] FCA 1266, Collier J noted, at [17], that a court would only be justified in departing from the ordinary order for party party costs where “special or unusual features” are presented. Her Honour went on to opine at [18]:

   “I note, […], that the respondent has still presented no defence. However, it is difficult to draw the conclusion on the basis of the evidence before me that the respondent has acted in such a way as to cause the applicant to incur substantial additional expense. While it is true that the respondent has appeared to ignore the proceedings, in many ways, it is questionable whether, as Mr Logan submitted, that course of conduct can be said to be a course of conduct contributing to increased costs to the applicant. Neither could it be said that the failure to respond to correspondence resulted in unnecessarily prolonging the proceedings. Indeed, it is more likely that contentious proceedings would cause costs to escalate.”

3. Likewise, it is difficult to comprehend the contention that the respondent’s conduct led to increased costs compared to the costs that may have been incurred had the respondent engaged fully with the instant proceedings.  I note that the original application before the court, in the presumption that the respondent would take part in the proceedings, estimated that a two day hearing would be required.  In the circumstances, only one day was required.   I also note that several of the delays in the present matter were not, in fact, caused by the respondent’s inaction but by the applicant’s own actions or inaction.  On several occasions directions hearings were requested by the applicant to address its inability to meet court orders, and the hearing date itself was postponed on a number of occasions on request by the applicant. 

4. Section 570 of the Fair Work Act 2009 (Cth) restricts the circumstances in which costs may be awarded under the Act. Relevantly, it states:

   (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 underthis Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) orsection 569 or569A.

   (2)  The party may be ordered to pay the costs only if:

   …

   (b)  the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; …”

5. The question to be asked then is whether the respondent’s act or omission, in not taking part in these proceedings, caused the incurrence of costs for the applicant. In Mayberry v Kijani Investments Pty Ltd as trustee for The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238,[1] costs were awarded where the respondent took no part in proceedings on the basis that the action was required because of the respondent’s lack of compliance with an order of Fair Work Australia. In the present matter, the respondent also took no part in proceedings before the Fair Work Ombudsman.  The Fair Work Inspector found that the Act did apply to the respondent and made determinations in relation to pay in lieu of notice and non-provision of payslips, but found that there was insufficient evidence in relation to underpayment and other entitlements. In relation to those matters, she suggested the applicant pursue the matter either using a small claims process or through court action. In this way, the present matter is distinct from that in Mayberry, where resolution was possible at the earlier stage.

   [1] “Mayberry”.

6. The court determines that the applicant has not satisfied it that she can come within the provisions of s.570(2). This was, in the end, a run of the mill proceeding, the only complications involving the applicant’s submitted way of calculating loss. This was a process that took the court much time to correct.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  10 March 2014