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

1. 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

1. 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.

2. 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 Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.

   (2) The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   (3)  Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.

3. Section 570 of the Fair Work Act 2009 (Cth) (Fair Work Act) provides:

   (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)…

   (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…

4. There is an unresolved question whether s.570 confers a power to award costs in Fair Work proceedings or limits any general power to award costs that may be found elsewhere. In Wang v MTC Australia Ltd, [1] I observed at [26]:

   …there is a general doubt about the capacity of the Court to award costs in Fair Work proceedings, as set out in Cross v Harbour City Ferries Pty Ltd (No.2).  That doubt should not prevent the Court from making a costs order, but should cause the Court to be cautious in departing from the general principle set out in s.570 of the Fair Work Act that parties bear their own costs.

   [1] [2017] FCCA 2840

5. With respect to the capacity of an inferior court to award costs Lee J has observed: [2]

   In some circumstances the power to make an order sounding in costs may be essential for the due administration of justice and, therefore, an integral part of a judicial power. Such an order is not calculated to provide compensation to a party for expense incurred in the litigation, but to protect the integrity of the processes and function of the Court by imposing appropriate sanctions where the conduct of a person is inimical to those objects. Such a sanction may be an order directing a person, including a person not a party to the proceedings, to pay costs. (See:  R v Forbes; ex parte Bevan [1972] HCA 34;  (1972) 127 CLR 1 per Barwick CJ at 8; R v Ross-Jones; ex parte Green[1984] HCA 82;  (1984) 156 CLR 185 per Gibbs CJ at 200; Myers v Elman[1940] AC 282 at 289, 302, 319; Edwards v Edwards  [1958] P 235; Mauroux v Soc Com Abel Pereira Da Fonseca SARL[1972] 1 WLR 962; Davy-Chiesman v Davy-Chiesman [1984] 2 WLR 291 at 299 - 302)

   [2] Ward v Western Australia [1999] FCA 580 (6 May 1999) per Lee J at [11]

6. In this regard, Judge Smith held in Cross v Harbour City Ferries Pty Ltd (No 2):[3]

   Thirdly, inferior courts have been found to have the power to award costs as part of their power to prevent abuse of the court’s process. (citation omitted)

   [3] [2017] FCCA 1713 (2 August 2017) per Judge Smith at [17]

7. In that case, Judge Smith also stated: [4]

   Having regard to the note for that purpose, it appears that the intention of the amendment [to s.79(1) of the Federal Circuit Court Act to exclude Fair Work proceedings] was to make the power to award costs of proceedings in matters arising under the FW Act similar to that in proceedings under the Family Law Act, that is, to be governed entirely by the provisions of another enactment. In this case that enactment is the FW Act. This suggests that there was no intention to deprive the Court of the power to award costs in Fair Work proceedings.

   That suggestion is fortified by the fact that the amendments to the FCA Act did not, even on their face, deprive the Federal Court of any power to award costs. Rather, it made plain what was already the case: that is, that the power to award costs under s.43 of the FCA Act was conditioned by the provisions of s.570 of the FW Act, as it had been by provisions of the WR Act and its predecessors.

   There is no indication in the text or context of the Amending Act (other than the difference in the terms of the amendments to the respective costs provisions in the FCA Act and the FCCA Act) that there was any intention to distinguish between the Courts in terms of the power of each to award costs. Further, there is no indication that it was intended to alter the situation concerning costs in the Court that had existed under the WR Act.

   …Applying s.15AA of the AI Act, the proper construction of s.79 of the FCCA Act, as amended by the Amending Act, is the one that best achieves the purpose of the Act (in this case, both the FCCA Act and the Amending Act). That construction is arrived at by reading s.79(1) of the FCCA Act so that it reads:

   (1) This section does not apply to family law or child support proceedings or, except insofar as it is read subject to s.570 of the Fair Work Act 2009, 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.

   [4] Ibid at [29]-[31] and [36]

8. At [35] his Honour stated:

   I note in passing that, as explained by Jessup and Tracey JJ in Australasian Meat Industry Employees Union v Fair Work Australia (No. 2) [2012] FCAFC 103; (2012) 203 FCR 430 at [3]; [2012] FCAFC 103, the original predecessor to s.570 of the FW Act was s.197A of the Conciliation and Arbitration Act 1904 (Cth) (C&A Act) which was only introduced in 1973, that is, not nearly 100 years ago. Nevertheless, there have been restrictions on costs since 1904[12] and the nature of the restriction in s.570 of the FW Act can be directly traced to an ancestor of that provision at least 40 years old.

9. Ultimately, Judge Smith concluded: [5]

   I reject the argument that the power of the Court to award costs arises from s.570 of the FW Act. That power arises from s.79 of the FCCA Act as construed at [35] above.

   [5] Ibid at [54]

10. I respectfully concur with the view expressed by Judge Smith.

11. In Ashby v Commonwealth of Australia (No 4),[6] with respect to the power of the Federal Court to award costs under s.570 in matters arising under the Fair Work Act, Rares J was in no doubt when he held:

    The power to make an order for costs is in the discretion of the Court once the factors in s.570(2)(a) or (b) have been satisfied. The power must be exercised judicially. Mr Ashby instituted the proceedings without reasonable cause because they were and are an abuse of the process of the Court. Additionally, his unreasonable acts of instituting and prosecuting the proceedings caused Mr Slipper to incur costs for the same reason.   Mr Ashby should be ordered to pay Mr Slipper’s costs of the proceedings.

    [6] [2012] FCA 1411 per Rares J at [202]

12. I find that this Court has the power to award costs in these proceedings in favour of Grubits provided “the circumstances of this case meet the conditions imposed on the exercise of that power by s.570 of the Fair Work Act”[7].

    [7] Harbour City Ferries at [54]

The meaning of the terms “vexatiously” and “without reasonable cause”

1. I accept Grubits’ submissions on this issue of statutory interpretation.  In Abdulrahim v QBE Management Services Pty Limited,[8] Deputy President Kovacic dealt with an application for costs before the Fair Work Commission under s.611(2) of the Fair Work Act which provides:

   However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: 

   (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause.

   [8] [2016] FWC 4912

2. Deputy President Kovacic examined the meaning of the terms “vexatiously” and “without reasonable cause” as the Full Bench explained in Church v Eastern Health[9] at [28]-[33]:

   [9] (2014) 240 IR 377

   [28] We now turn to the exceptions to the general rule expressed in s.611(1) and the meaning of the expression “vexatiously or without reasonable cause”.

   [29] The question of whether an application was made “vexatiously” looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made “without reasonable cause” and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously “where the predominant purpose … is to harass or embarrass the other party, or to gain a collateral advantage”. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:

   The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously or unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.

   [30] We now turn to the expression “without reasonable cause”. A party cannot be said to have made an application “without reasonable cause”, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:

   It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.

   [31] In the context of an appeal the question becomes whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. As Wilcox CJ (with whom Madgwick J agreed) observed in Imogen Pty Ltd v Sangwin:

   The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If having regard to those matters, there was not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it would seem to me it cannot be fairly described as having been instituted ‘without reasonable cause’. This is so even if, in the result, the appeal proved unsuccessful.

   …

   [33] In construing s.570 and its legislative antecedents courts have observed that the test imposed by the expression “without reasonable cause” is similar to that adopted for summary judgement, that is “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed”.

The evidence and submissions

1. The costs application by Grubits is supported by the affidavit of Michael Green (solicitor for Grubits) made on 20 December 2017 and the annexures to it, as well as the affidavit of Haydn Lewis made on 7 February 2018.  Grubits also filed extensive submissions in relation to costs on 5 March 2018 and 27 March 2018, to which was annexed a statutory declaration by Rose Pengilly made on 26 March 2018.

2. Mr Liu opposes any costs order.  He relies on the following documents:

   a)points of claim apparently relating to the principal proceedings;

   b)an affidavit made by Jiamei Lui (daughter of Mr Liu) on 19 March 2018 in which she deposes as to her father’s state of mind and describes him as “mentally sick”;

   c)written submissions being a critique of the conduct of Grubits; and

   d)an affidavit by Mr Liu made on 14 February 2018 containing evidence of him suffering from depression in 2016 and 2017, and other matters.

3. That material was unhelpful to the resolution of this costs application, with the exception of the evidence concerning Mr Liu’s health.  I accept that he suffers, or has suffered, from depression.

The alleged vexatious conduct of the Mr Liu in the proceedings

1. Grubits contends that Mr Liu has conducted these proceedings vexatiously. On 25 October 2016, Mr Liu filed a General Protections Application Involving Dismissal (Original FWC Application) under s.365 of the Fair Work Act in the Fair Work Commission (Commission) naming Grubits as the respondent.

2. On 1 December 2016, Mr Liu, without advising Grubits, made an application to the Commission to adjourn a conciliation conference set down for 20 December 2016.

3. On 2 December 2016, the Commission declined Mr Liu’s application to adjourn the conciliation conference.

4. On 15 December 2016, Mr Liu applied again to adjourn the conciliation conference set down for 20 December 2016.

5. On 13 March 2017, after having had some five months to consider Grubits’ response to his application, Mr Liu, without seeking leave to amend his original application and without seeking or obtaining Grubits’ consent or that of the Commission, lodged a further application form through the online registry of the Commission. 

6. Late on Sunday, 19 March 2017, Mr Liu applied a third time for the adjournment of the conciliation conference set down by the Commission for 20 March 2017.

7. At 8.20am on Monday 20 March 2017, after Grubits’ legal representative had attended its offices to participate in the conciliation conference by telephone, the Commission granted the adjournment application and relisted the conciliation conference on 12 April 2017. 

8. Following that conference, on 2 May 2017, Mr Liu filed an application in this Court, naming Grubits as the respondent.  This application included alleged grounds of the application despite the fact that Mr Liu also filed a claim in the proceedings.

9. At the same time on 2 May 2017, Mr Liu filed a claim under the Fair Work Act alleging dismissal in contravention of a general protection, again naming Grubits as the respondent. The alleged facts and contraventions set out in the Form 2 Claim varied significantly from those set out in the grounds in the application.

10. At the first court date on 29 May 2017 I ordered Mr Liu to file and serve points of claim no later than 26 June 2017 with the purpose of defining the causes of action and grounds in the matter and so that Grubits could file and serve a defence in the matter.

11. On 21 June 2017, Mr Liu, without advising Grubits, made an application to me in chambers seeking to be excused from filing his points of claim for “four to five months”.  My associate notified Grubits of that application.

12. On 22 June 2017, Grubits opposed the application on the basis it would not be able to file and serve its points of defence in accordance with my orders of 29 May 2017 and exercised the liberty granted to the parties to apply to have the matter relisted on five days notice.

13. At 4:19am on 26 June 2017 Mr Liu lodged and served points of claim on Grubits and my associate and the Sydney registry of the Court.

14. At 4:22am on 26 June 2017 Mr Liu lodged and served another set of points of claim on Grubits and my associate and the Sydney registry of the Court.  The attachments to this email varied from the attachments to the previous email sent at 4:19am.

15. At 4:26am on 26 June 2017 Mr Liu lodged and served what appeared to be further annexures on Grubits and my associate and the Sydney registry of the Court.

16. At 8.25pm on 26 June 2017 Mr Liu lodged and served yet another set of points of claim entitled “Points of Claim Version 1.1” on Grubits, my Associate and the Sydney registry of the Court.  These points of claim appear to have been electronically filed in the registry at or about 1.19pm on 27 June 2017.

17. Both the Original FWC Application and the application in this Court properly named and joined Grubits.

18. However, without the leave of the Court, Mr Liu, in the Points of Claim Version 1.1, attempted to substitute new and different respondents to the proceedings who were at no time his employer.  Grubits contends that this made it impossible for it to file and serve points of defence in reply. 

19. Mr Liu displayed personal enmity towards certain staff of Grubits in the Points of Claim Version 1.1.

1. Mr Liu also displayed personal enmity towards the legal representatives of Grubits orally and in emails which included accusations of untruthfulness and misconduct.

2. These problems led to the relisting of the case for directions on 17 August 2017.  Mr Liu made clear in email correspondence his view that further directions unnecessary and he failed to attend the directions hearing.  He also was uncontactable by telephone.  In my judgment dismissing Mr Liu’s application for reinstatement,[10] I found at [9] that Mr Liu had been untruthful in explaining his failure to attend the directions hearing.

   [10] Liu v Stephen Grubits & Associates [2017] FCCA 2999

3. I accept that, for the purposes of the test set out in Nilsen v Loyal Orange Trust,[11] Mr Liu’s email correspondence in the proceedings was not just “productive of serious and unjustified trouble and harassment” but also designed “to gain a collateral advantage” by attempting to place counsel for Grubits, who had been briefed in the matter from the commencement of the Commission proceedings, in the position of potentially having to be a witness in the proceedings and thereby under an obligation to return the brief.

   [11] (1997) 76 IR 180

4. I also accept, for the purposes of the test set out in the High Court in Hamilton v Oades,[12] that Mr Liu sent four emails to the registry on 30 June 2017 complaining about Grubits’ attempt to exercise the liberty it had previously been granted to restore the matter, copying the emails to Grubits’ solicitor, counsel and Grubits’ Directors.  This included the following threat: [13]

   Anyone who is trying to do bad things will be deemed to be eliminated by the society. I hope you can understand this.

   [12] [1989] HCA 21; (1989) 166 CLR 486

   [13] see [20] of the affidavit of Michael Green of 20 December 2017, filed 21 December 2017 and served by express post 22 December 2017

5. I accept that this was an attempt to put Grubits’ staff and its legal representatives in fear of their person which was “productive of serious and unjustified trouble and harassment” and designed “to gain a collateral advantage”.

6. Further, I accept that Mr Liu has abused the proper processes of the Court in that at least seventeen documents that he filed and served on Grubits throughout the proceedings were unnecessary duplications, thereby incurring greater costs by Grubits’ legal representatives needing to consider each of them and determine whether any response should or indeed could be made to these numerous and often discursive documents.[14]

   [14] See [17] of the affidavit of Michael Green of 20 December 2017

7. Further, Mr Liu sent an email to Grubits’ legal representatives and its directors late on 26 January 2018 enclosing a letter warning that he would appeal my decision to dismiss the application to set aside the orders of 17 August 2017 unless Grubits withdrew its costs application. 

8. Mr Liu has also made repeated attempts to directly contact Mr Quaglia, a director of Grubits, even though he should be well aware that any correspondence was to be directed to Grubits’ solicitor.[15]

   [15] Affidavit of Haydn Lewis

9. The present costs application was listed for directions on 15 February 2018.  Mr Liu failed to appear and forwarded a letter to the Court from a Dr Terrance Lim as to the alleged state of his mental health that morning that had been produced and presumably in Mr Liu’s possession some five days prior to the hearing.  He subsequently agreed to the costs application being dealt with on the papers.

10. Finally, with respect to the requirement that the Court needs to look “to the motive of the applicant in making the application”, Grubits refers to my statement at [10] of my decision on 4 December 2017:

    He is filled with a sense of grievance. He has put that sense of grievance into these proceedings…

The lack of any prospect of success of the points of claim

1. The points of claim entitled, Points of Claim Version 1.1 do nothing more than repeat the final orders sought by Mr Liu in the application filed on 2 May 2017.

2. They do not plead the pertinent facts necessary for Mr Liu to establish the breaches of ss.351 and 340 of the Fair Work Act as alleged in the grounds included in the application.

3. Rather they take the peculiar form of being a combination of submissions and a series of partial, incomplete and unsworn narratives that do not constitute evidence, along with a series of calculations as to the quantum of the damages sought.

4. Further, in every instance Mr Liu, although alleging in the grounds of the application breaches of the civil remedy provisions of the Fair Work Act, sought compensatory damages (that in the Commission were more than $1 million but before this Court fell to a little less than $64,000). Grubits contends this claim was beyond the jurisdiction of the Court with respect to the alleged breaches of ss.351 and 340 of the Fair Work Act. In this respect, the application is said to have no prospect of success and to have been bought without reasonable cause.

5. In this regard, I found in my judgment of 4 December 2017: [16]

   I accept that there are incurable flaws in the application and points of claim.

   I have no confidence that, if the principal application were reinstated, it would be litigated properly by Mr. Liu and that it could lead to a successful outcome for him.

   [16] Liu v Stephen Grubits & Associates [2017] FCCA 2999 at [11] to [12]

Mr Liu’s s.351 claim

1. Mr Liu sought to bring a claim that Grubits breached s.351 of the Fair Work Act. It is to be noted this claim was only included in Mr Liu’s amended FWC Application following Grubits’ response.

2. Section 351 of the Fair Work Act provides that an employer must not take adverse action against a person who is an employee because that employee possesses one of the characteristics set out in that section.

3. Although Mr Liu alleges discrimination in his points of claim, he failed to specify the alleged characteristic that Grubits allegedly discriminated against, nor did he specify what alleged adverse action was taken against him because of Mr Liu possessing one of the characteristics set out in the relevant section.

4. In fact, the points of claim entirely fail to establish that prior to the termination Grubits knew or Mr Liu provided Grubits with any medical evidence that he was suffering from any physical or mental disability that would interfere with his capacity to perform his duties or require any period of personal leave.

5. The doctor’s certificate of Dr Allan Mack dated 24 September 2016 relied upon by Mr Liu in support of this claim at Annexure 23 of the documents filed him on 29 May 2017 fails to establish that Mr Liu was suffering from physical or mental disability and in fact demonstrates any illness Mr Liu was allegedly suffering from was short-term in its nature.

6. Grubits submits that Mr Liu actually sought time off for sick leave[17] and the first time that Mr Liu asserted that he had provided to Grubits the medical certificate dated 24 September 2016, was in his amended FWC Application after having had some five months to consider Grubits’ response, without making an application to the Commission seeking leave to amend his Original FWC Application and without seeking or obtaining the consent of Grubits.

   [17] See the statutory declaration of Rose Pengilly made on 26 March 2018

7. Further, Mr Liu’s own evidence showed he attended work and was paid by Grubits for his attendance at work during the period 26 September 2016 to 4 October 2016 inclusive.[18]

   [18] See Annexure 41 annexed to and filed with Mr Liu’s affidavit of 26 June 2017 and the attached payslips, and referred to in his points of claim

Mr Liu’s s.340 “jury claim”

1. Section 340(1) of the Fair Work Act provides:

   A person must not take adverse action against another person:

   (a)     because the other person: 

   (i) has a workplace right; or

   (ii) has, or has not, exercised a workplace right; or

   (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or 

   (b) to prevent the exercise of a workplace right by the other person.

   Note: This subsection is a civil remedy provision (see Part 4-1)

2. Section 341(1) of the Fair Work Act provides:

   A person has a workplace right if the person: 

   (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;

   …

   (c) is able to make a complaint or inquiry:

   …

   (ii) if the person is an employee--in relation to his or her employment.

3. Grubits submits that:

   a)the evidence shows that at no time did Grubits take adverse action against Mr Liu or prevent him from exercising a workplace right in that it was at all times Mr Liu’s choice to apply to be excused from jury service.  In fact, in neither the application nor the points of claim does Mr Liu expressly assert he was terminated because he sought to attend jury service;

   b)the evidence shows that at no time during his employment did Mr Liu complain to Grubits that he wished to attend jury service and was being prevented from doing so and at no time was Mr Liu’s employment terminated for any reason other than his inability to perform the responsibilities and duties for which he was originally employed;

   c)in fact, Mr Liu’s own evidence demonstrates that he willingly applied to be excused from jury service; [19] and

   d)Mr Liu failed in both his application and his points of claim to establish the necessary elements to make out a contravention of s.340.

   [19] see Annexure 7 of the documents filed by Mr Liu on 29 May 2017

4. In its closing submissions, Grubits deals extensively with the difficulties encountered by courts and parties with self represented litigants.  It is unnecessary to deal with those submissions other than to observe that self represented litigants pose challenges for the courts, and this Court in particular.  Beyond that, Mr Liu has proven himself to be a querulous litigant, whose conduct in these proceedings has posed particular challenges. 

5. Those submissions also deal extensively with the issue of Mr Liu’s truthfulness, his harassment of Grubits and attempts to damage the reputation of Grubits.  It is unnecessary to deal with those submissions, save for what I have said above.

6. Grubits therefore submits that Mr. Liu’s application and accompanying Points of Claim Version 1.1 clearly come within the test set out by Wilcox CJ in Imogen Pty Ltd v Sangwin[20] of disclosing “a case which the Court is satisfied cannot succeed”.

   [20] [1996] IRCA 654

Conclusion

1. I accept that the misconduct of Mr Liu set out above comes squarely within the meaning of the term “vexatiously” for the purposes of s.570 of the Fair Work Act.

2. I also accept that Mr Liu’s Points of Claim Version 1.1 had absolutely no prospect of success and was brought without reasonable cause.

3. Further, the considerable duplication and number of documents served by Mr Liu without the leave of the Court along with the extraordinary number, nature and character of the emails sent by him since the first court date has unnecessarily and considerably increased the legal costs of Grubits.

4. I am satisfied that Mr. Liu instituted and pursued the proceedings vexatiously and without reasonable cause and Mr. Liu’s unreasonable acts or omissions caused Grubits to incur costs and it is therefore open to me to depart from the general principle in s.570 that both parties bear their own costs.

5. Grubits seeks an indemnity costs order with respect to the costs incurred by it in the proceedings, initially claimed in the amount of $68,243.62 but subsequently increased to $79,139.18 (as at 27 March 2018) being the actual legal costs incurred by Grubits to date in these proceedings.

6. That claim is in my view excessive, having regard to the early stage at which the proceedings were dismissed.  Further, I cannot rule out the possibility that the claim includes costs incurred in the FWC Application.  I accept, without a detailed assessment, that costs of at least $35,000 were incurred reasonably and properly on behalf of Grubits in these proceedings up to the point of my judgment on 4 December 2017.  I further find that Grubits has incurred costs of at least $10,000 in dealing with this costs application.

7. Costs should, in my view, be awarded on the ordinary party and party basis.  The conduct of Mr Liu, though lamentable, was more irrational than calculated, and the Court should avoid the appearance of vengefulness against a litigant who has shown himself incapable of moderating his behaviour.

8. A fair and reasonable party and party assessment of costs in these proceedings is $30,000.  I will fix costs in that amount.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 April 2018