Lewis v Australian National University (No.2)

[2019] FCCA 3450

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEWIS v AUSTRALIAN NATIONAL UNIVERSITY (No.2) [2019] FCCA 3450

Catchwords:
INDUSTRIAL LAW – Ruling on costs application.

Legislation:

Fair Work Act 2009 (Cth), s.570(2)(b)

Cases cited:

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
Beling v Sixty International SA (No.2) [2015] FCA 355

Applicant: CHRIS LEWIS

Respondent: AUSTRALIAN NATIONAL UNIVERSITY

File Number: MLG 337 of 2019

Judgment of: Judge Burchardt

Hearing date: 30 July 2019

Date of Last Submission: 30 July 2019

Delivered at: Melbourne

Delivered on: 30 July 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Bourke Q.C.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 11 February 2019 be dismissed.

2. The oral application for costs made on 30 July 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 337 of 2019

CHRIS LEWIS

Applicant

And

AUSTRALIAN NATIONAL UNIVERSITY

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, the Court has formulated Reasons for Judgment and one order, which I publish.

RECORDED : NOT TRANSCIBED

1. It will be noted that the substantive application is dismissed.

RECORDED : NOT TRANSCRIBED

1. In this matter, the University applies for costs of the proceeding to be taxed on an indemnity basis. This is primarily pressed pursuant to s.570(2)(b) of the Fair Work Act 2009 (Cth) (“FW Act”), which relevantly prescribes that a party may be ordered to pay costs only if the Court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs. If I may say so, the suggestion that s.570(2)(a) is engaged, was not pressed and, in my view, correctly.

2. In the alternative, it is put that the Court should order costs from the date of Calderbank letters that were sent from time to time to Dr Lewis.  The unreasonable act asserted is to proceed into judgment when the case was one that had no merit, and no reasonable prospects of success.  And it of course is the case that paragraph [55] of the judgment I found that the case could not succeed even on the version of the events most favourable to Dr Lewis.  But I did not find that there was an abuse of process.  I did not come to a particular conclusion as to that.  It is true that I observed that the original claim was poorly thought out, but Dr Lewis has, at all times, been self-represented, this presents forensic disadvantages that are obvious.

3. It should also be remembered that the University’s information provided to Deputy President Kovacic was, in fact, wrong.  The records were not altered on 16 July, but the 25 July, which was a date after the s.372 application, filed by Dr Lewis on 21 July.  While I have not found this to be sinister, or of any moment to the outcome likely to have occurred before Deputy President Kovacic, it is easy to see why Dr Lewis, whose case was concentrated on this issue, saw it the way he did.

4. While I have found Dr Lewis’ case to be incapable of being made out, this does not of itself mean:

   a)that it necessarily automatically means his prosecution of it was an unreasonable act, and

   b)that it necessarily follows that he should pay costs.  The power to award costs in s.570 is discretionary.  Dr Lewis has said, amongst other things, without material challenge, that the Fair Work Ombudsman advised him that he was an employee at the relevant time, and that Comcare came to a similar conclusion.

5. I would say that the Fair Work Ombudsman’s advice was not as unequivocal as Dr Lewis has construed it.  And it is more probable than otherwise, without having the detail, that the workers’ compensation legislation against which Comcare may have made any finding, would have been a far broader test to that with which I am concerned.  But the background information is relevant to what Dr Lewis did.  Bearing in mind these matters, including the falsity of Ms Austin’s original material to Deputy President Kovacic, it was not an unreasonable act to prosecute this matter to judgment.

6. And even if it was, I would not be prepared to exercise my discretion to order costs, pursuant to s.570(2)(b). That brings me to the alternative basis upon which costs are sought. Namely, the Calderbank offers. And it is, of course, the case that Senior Counsel drew to my attention that in Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at [166], the plurality observed:

   “It is well established that a failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2) and its predecessors.”

7. The question of Calderbank offers has been considered on numerous occasions but I would refer, in this instance, to the judgment of Mortimer J in Beling v Sixty International SA (No.2) [2015] FCA 355, where her Honour said, at [23]-[25], the following:

   “[23]    Where an offer to settle a proceeding is made, and the party to whom it is made refuses the offer and then obtains a less favourable outcome at trial, the principles in Calderbank entitle, but not require, the court to order that party to pay the offeror’s costs on an indemnity basis from the date the offer expires or was refused.

   (I will omit the various authorities in this extract).

   [24]    A key factor is whether the moving party can prove that the refusal of the offer was unreasonable in the circumstances: …  The “circumstances” which must be examined are those existing at the time of the rejection of or failure to accept the offer: …

   [25]    In determining whether it was unreasonable for the offeree to refuse the offer, Warren CJ, Maxwell P and Harper AJA in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)(2005) 13 VR 435 ; [2005] VSCA 298 at [25] set out a number of factors which ordinarily would be relevant to consider:

   (a)the stage of the proceeding at which the offer was received;

   (b)     the time allowed to the offeree to consider the offer;

   (c) the extent of the compromise offered;

   (d)the offeree’s prospects of success, assessed as at the date of the offer;

   (e)the clarity with which the terms of the offer were expressed; and

   (f)whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.”

8. What the ANU was offering, substantially, in the correspondence sent to Dr Lewis was for Dr Lewis to discontinue and for the ANU not to pursue costs as it now has.  I note that the first letter sent on the 5th of March 2019 raises various matters which were not pressed before this Court, including various forms of estoppel and so on.  At page 4 of the letter, in paragraph 19(c), Mr Pill wrote:

   “The fact that it should be apparent, including based on the matters set out above, that:

   (i)     withdrawing the Proceeding is a better outcome than you could reasonably hope to achieve in this matter.  As such a failure or refusal to accept the offer is a manifestly unreasonable act or omission in connection with the conduct or continuation of the Proceeding.”

   I have to say, I am not sure this really is a Calderbank letter because the worst result that Dr Lewis could have obtained was that his case was dismissed, which seems to me to be an equivalent outcome to his discontinuing it.

9. In any event, Dr Lewis’ reply shows his point of view at the time.  It was sent almost instantly. Leaving aside questions of lack of time, the letter relevantly says:

   “The reason why I have applied to the Federal Court is due largely to Freedom of Information documents obtained since 2015 to 2018 from the ANU which clearly show that the ANU misrepresented my employee rights and employee status throughout the complaint process from 14 April 2014 to 21 July 2014 to 21 July 2014.  I have lodged an Affidavit of three such FOI documents.”

   He then goes on to refer to the fact that he had been to the Fair Work Commission that he would have told him if his claim was hopeless.

10. At the time Dr Lewis believed he had a good case.  He was not, in one sense, wholly wrong because Ms Austin’s original information provided to Deputy President Kovacic was incorrect.  The time records involve some measure of obscurity, although I reached the conclusion expressed in my judgment that that matter is not made out and, even if it was, was a matter to be approached according to de minimis doctrine.

11. The position contended for by the ANU overarchingly goes close to suggesting that all claims that are summarily dismissed will lead to indemnity costs orders.  This is not the case.  It is always a matter for discretion in the relevant circumstances.  Given the matters I have traversed, I decline to make a costs order on the Calderbank letter if it was one, also.  It follows that the application for costs is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  26 November 2019