Maan v Swift Australia (Southern) Pty Ltd (No.2)
[2010] FMCA 241
•16 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAAN v SWIFT AUSTRALIA (SOUTHERN) PTY LTD (No.2) | [2010] FMCA 241 |
| INDUSTRIAL LAW – Costs argument. |
| Workplace Relations Act 1996, s.666 |
| Jonsson v Theodore Hotel Co-operative Association Ltd [2007] FMCA 1199 Kanan v Australian Postal & Telecommunication Union (1992) 43 IR 257 Matthews v Australian Postal Corp [2007] FMCA 1174 |
| Applicant: | MAAN MAAN |
| Respondent: | SWIFT AUSTRALIA (SOUTHERN) PTY LTD (A.C.N. 005 062 082) |
| File Number: | MLG 1041 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 9 March 2010 |
| Date of Last Submission: | 16 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr S. Button-Parsonage |
| Solicitors for the Respondent: | Mr S. Button-Parsonage |
ORDERS
That there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1041 of 2009
| MAAN MAAN |
Applicant
And
| SWIFT AUSTRALIA (SOUTHERN) PTY LTD (A.C.N. 005 062 082) |
Respondent
REASONS FOR JUDGMENT
(Costs Judgment)
On 9 March 2010 I delivered judgment in this matter. I ordered that the application be dismissed and that the parties provide written submissions as to whether costs should or should not be ordered within seven days.
By an email to my associate dated 14 March 2010 the applicant,
Mr Maan, sought orders. Given that his application was wholly unsuccessful, this application was plainly misconceived.
The respondent filed written submissions seeking costs on 16 March 2010. There were three alternative bases advanced as to why costs should be ordered.
Institution of Proceedings Vexatiously
Here the respondent pointed in essence to the fact that the respondent’s witnesses had been believed and the applicant had not. The kernel of the submission, which followed a rehearsal of the favourable findings of fact made from the respondent’s point of view, is at paragraphs 15 and 16 of the written submissions as follows:
“15. It is the respondent’s submission that the lack of honesty and good faith in so much of the applicant’s dealings in relation to his whereabouts on Friday 20 February 2009 and the events leading to his termination is a sufficient reason for costs to follow these proceedings, rather than any other outcome.
16. If the Court were to accept that the applicant’s initiation of proceedings lacked honesty or good faith then it is submitted it follows that the respondent is entitled to costs as set out in section 666(1)(a) and (b) following consideration of this issue as set out in paragraph 25 of Jonsson (supra).”
The reference to Jonsson is a reference to the case of
Jonsson v Theodore Hotel Co-operative Association Ltd[2007] FMCA 1199, parts of which are extracted in the respondent’s written submissions.
It is the case that in Jonsson, Burnett FM made a number of observations giving examples of conduct that might attract the operation of s.666, including those where an employee voluntarily terminated their employment but sought to initiate an application under the Act, or where an application made a fraudulent allegation.
Nonetheless those observations, while clearly correct as far as they went, were not of universal application. Each case falls to be considered on its own facts and circumstances.
Here, to my way of thinking, a relevant circumstance is that, as I found, the applicant always believed his case. His evidence was given with evident sincerity.
Although I found roundly in favour of the respondent and accepted the evidence of its witnesses, I expressly did not find that Mr Maan had committed perjury. While his version of events was as I found clearly incorrect, it was clearly one that was honestly held.
It follows that the proceedings were instituted because Mr Maan had a genuine sense of grievance against the company. They were not instituted vexatiously.
Proceeding Instituted Without Reasonable Cause
This was the second basis upon which the respondent sought costs. Reference was made to the well-known case of Kanan v Australian Postal & Telecommunication Union (1992) 43 IR 257 and Matthews v Australian Postal Corp [2007] FMCA 1174. The kernel of the submission made here was at paragraph 20 of the written submissions as follows:
“20. If we apply the above authority to the circumstances of the applicant’s case it is the respondent’s submission that the applicant’s case was untenable, groundless and beyond argument as he knew from the onset that his employment came to an end due to his absenting himself from his workstation and the workplace without authorisation on 20 February 2009.”
Although the submission went on to develop various subsidiary aspects of the evidence in relation to this subset of the submission, it is not necessary to traverse them in detail.
Once again, however, the answer in my view is very much the same as in the first matter raised. Mr Maan genuinely at all times believed his own case. Quite what thought process went through his mind to enable him to achieve that state of mind is obviously beyond the Court to know. Nonetheless I repeat that I found Mr Maan an honest witness, albeit one whose evidence was completely wrong.
In my view the proceeding was not instituted without reasonable cause. To the contrary, as is plain from his written submissions as to cost,
Mr Maan harbours a vivid and continuing feeling that he was unfairly dealt with for the reasons that he originally set out. The mere fact that he lost does not mean that the proceeding was instituted without reasonable cause.
Unreasonable Act or Omission in the Applicant’s Conduct of the Proceedings
Here the respondent submits correctly that the applicant failed to file evidence in accordance with directions on two occasions and filed his affidavits only at the trial of the proceeding on 4 February 2010. It is also correct that he absented himself on that day to attend his solicitor’s office at Lalor.
The case may or may not have continued into a second day if Mr Maan had not absented himself as described, but on balance I think it would have gone into two days in any event. It is certainly not clear that the proceeding would, as the respondent has submitted, not have continued into a second day. It was not a case in which I would have ever been very likely to have ordered written submissions.
In any event, Mr Maan was representing himself. As is apparent from his conduct of the proceeding, and I point by way of example only to his written submissions in relation to costs, Mr Maan is a man with no legal training and no real insight into the legislation under which his case was conducted. While he is plainly intelligent and is indeed, as I understand it, pursuing a degree, that is a different matter altogether to having had a real understanding of the litigation process.
Mr Maan’s unauthorised absence on the day of trial was both surprising and inappropriate but in the ultimate it is explicable in terms of his background and the difficulties faced in conducting the litigation.
His failure to file affidavits in a timely fashion struck me at the time as being inappropriate, given that he was legally represented at the time when they should have been filed.
Nonetheless while this was inappropriate, it caused no disruption to the proceeding, which was fully able to continue in any event.
Conclusion
The Court is required to exercise discretion in these matters. It is discretion to be exercised according to the law.
While I dealt with each of the subsets of the respondent’s submissions separately, none of them individually and none of them taken together, in my view, make it appropriate for me to make an order for costs in favour of the respondent in this proceeding.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 16 April 2010
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