Li v KC Dental Pty Ltd and Ors (No.3)

[2019] FCCA 483

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v KC DENTAL PTY LTD & ORS (No.3) [2019] FCCA 483

Catchwords:
INDUSTRIAL LAW – Costs – respondents’ application for costs in relation to applicant’s application for costs of proceeding – power to award costs not engaged – application refused.

Legislation:

Fair Work Act 2009 (Cth), s.570

Applicant: DR YUANJUN LI

First Respondent: KC DENTAL PTY LTD

Second Respondent: DR FENG SHI

Third Respondent DR ANNIE CAO

File Number: MLG 256 of 2017

Judgment of: Judge A Kelly

Hearing dates: 27-28 September, 5 October 2017

Date of Last Submission: 7 February 2019

Delivered at: Melbourne

Delivered on: 1 March 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Moray & Agnew

ORDERS

1. The respondents’ application for costs is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 256 of 2017

DR YUANJUN LI

Applicant

And

KC DENTAL PTY LTD

First Respondent

DR FENG SHI

Second Respondent

DR ANNIE CAO
Third Respondent

REASONS FOR JUDGMENT

1. On 24 January 2019, I published reasons for judgment in a claim brought for alleged contraventions of the Fair Work Act 2009 (Cth): [2019] FCCA 104. On 21 February 2019, I published reasons for judgment upon the applicant’s application for her costs in the proceeding: [2019] FCCA 378. These reasons should be read with those reasons.

2. The respondents have made application for their costs of resisting the applicant’s application for such costs.

3. I do not accept that the applicant’s application for costs constituted an unreasonable act within the meaning of par 570(2)(b).  Contrary to the respondent’s submission, it was not unreasonable for the applicant to make an application for costs.  Nor was it unreasonable for the applicant to file a submission in support of that application.  When, on 24 January 2019, the principal judgment was delivered in the proceeding, the parties were agreed that directions be made facilitating the making of any application for costs.  Following those directions, the respondents’ counsel identified for the applicant an authority which was said to be of relevance to the question of costs, the reference to which he offered (perhaps at my invitation) to supply to her.  Again, I record the court’s gratitude to counsel for the manner in which the matter was conducted.

4. The respondents took issue with the content of the applicant’s written submissions respecting the question of costs, observing that they were in some respects scandalous and accordingly that the court should mark its disapproval of what was characterised as unreasonable conduct.  For the avoidance of doubt, any criticism by the applicant of the respondents’ counsel and solicitors was entirely unwarranted.  The applicant’s submissions were otherwise focussed upon matters which in my view it was legitimate for her to have raised upon the application.

5. The respondents’ current application is in my view tantamount to a submission that the applicant was required to accept, without qualification, their view that she had no entitlement to costs.  Whether there had been any unreasonable conduct by the respondents (by act or omission), such as to engage the power to consider the exercise of discretion to make an award of costs was necessarily a fact dependent question.  Contrary to the respondents’ submission, the applicant did point to factors which she considered to be relevant to that question.  Also contrary to the respondents’ submission, some of those factors were not wholly devoid of merit.  I have not been asked to, and do not make affirmative findings whether the respondents were deliberately non-responsive to the applicant’s requests before the hearing for clarification of the issues which she had identified once the respondents’ evidence had been served.  However, I have made findings respecting the evidence of witnesses in the proceeding, including the occasions where a witness was shown to have been less than candid in their evidence.

6. It is sufficient for present purposes to conclude as I have that the application was not devoid of merit and that some considerations had been identified upon which the applicant was entitled to submit that the power to consider the exercise of discretion had been engaged.

7. I was not satisfied that there had been conduct on the part of the respondents which constituted an unreasonable act or omission which caused the applicant to incur costs.  This does not mean that the applicant had not identified considerations which were relevant to that question.  I am certainly not satisfied that the applicant did not have a proper basis for such application.  Had the power to award costs been engaged, I would, for the reasons set out above, have declined in the exercise of discretion to grant the present application.

8. The respondents’ application for costs is refused.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  1 March 2019