Liu v Stephen Grubits and Associates (No.2) - [2018] FCCA 842

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v STEPHEN GRUBITS & ASSOCIATES (No.2)

[2018] FCCA 842

Catchwords:
INDUSTRIAL LAW – Application for costs by the respondent following interlocutory dismissal of the application by reason of non appearance and dismissal of an application for reinstatement – consideration of whether the principal proceeding was brought without reasonable cause and whether the applicant had acted unreasonably during the proceedings.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 351, 365, 570, 611

Federal Circuit Court of Australia Act 1999 (Cth), s.79

Cases cited:

Abdulrahim v QBE Management Services Pty Limited [2016] FWC 4912
Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411
Church v Eastern Health (2014) 240 IR 377
Cross v Harbour City Ferries Pty Ltd t/as Harbour City Ferries & Ors (No 2) [2017] FCCA 1713
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Imogen Pty Ltd v Sangwin [1996] IRCA 654

Liu v Stephen Grubits & Associates [2017] FCCA 2999

Nilsen v Loyal Orange Trust (1997) 76 IR 180
Wang v MTC Australia Ltd [2017] FCCA 2840
Ward v Western Australia [1999] FCA 580

Applicant:

YUNLONG LIU

Respondent:

STEPHEN GRUBITS & ASSOCIATES

File Number:

SYG 1334 of 2017

Judgment of:

Judge Driver

Hearing date:

Decided without oral hearing

Date of Last Submission:

27 March 2018

Delivered at:

Sydney

Delivered on:

27 April 2018

REPRESENTATION

The Applicant represented himself

Counsel for the Respondent:

Mr C Lambert

Solicitors for the Respondent:

Michael Green Legal

ORDERS

The applicant is to pay the respondent’s costs and disbursements of the two applications filed on 2 May 2017, fixed in the sum of $30,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1334 of 2017

YUNLONG LIU

Applicant

And

STEPHEN GRUBITS & ASSOCIATES

Respondent

REASONS FOR JUDGMENT

On 4 December 2017, I dismissed an Application in a Case by the applicant in the principal proceedings (Mr Liu) for reinstatement of his principal proceedings, which I had dismissed on account of his non appearance at a directions hearing on 17 August 2017. I gave leave for the respondent (Grubits) to apply for a costs order, which it did on 21 December 2017, seeking indemnity costs. With the consent of the parties, the costs application has been dealt with on the papers.
It is necessary first to consider this Court’s jurisdiction to award costs in Fair Work proceedings. The Court’s general jurisdiction in relation to costs flows from s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) which provides:
(1) This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 or section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings. See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act. See section 18 of the Public…

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: [2018] FCCA 842
Decision Date: 27 April 2018

CaseChat Overview and Summary

This matter concerned an application by the plaintiff, Ms Liu, for an order that the defendant, Stephen Grubits and Associates, provide further and better particulars of certain paragraphs of its defence. The dispute arose in the context of an ongoing proceeding where the plaintiff alleged professional negligence against the defendant. The application was heard in the District Court of New South Wales.

The primary legal issue before the Court was whether the defendant’s defence, which asserted that the plaintiff had failed to mitigate her loss, was sufficiently particularised to allow the plaintiff to understand the case she had to meet. Specifically, the Court had to determine whether the defence adequately identified the steps the plaintiff was alleged to have failed to take, and the nature of the loss that flowed from such failure.

Judge Driver reasoned that the purpose of particulars is to ensure that a party is not taken by surprise and has a fair opportunity to prepare its case. The Court found that the existing defence lacked the necessary specificity regarding the alleged failures to mitigate. It was not enough for the defence to broadly state that the plaintiff failed to mitigate; it needed to outline the specific actions or omissions that constituted this failure and how those failures directly caused or exacerbated the loss claimed. The Court applied the principles that particulars should be sufficiently detailed to inform the other party of the case they are required to answer, and that a general assertion of failure to mitigate is insufficient without supporting detail.

The Court ordered that the defendant provide further and better particulars of its defence within 28 days.

Orders