Manivannan v Tata Consultancy Services Limited (No 3)
[2024] FedCFamC2G 1408
•3 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manivannan v Tata Consultancy Services Limited (No 3) [2024] FedCFamC2G 1408
File number(s): SYG 1205 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 3 September 2024 Catchwords: FAIR WORK – application for costs Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Rybinski v Geocore Pty Ltd (No 2) [2024] FedCFamC2G 644 Division: Fair Work Number of paragraphs: 14 Date of hearing: 3 September 2024 Place: Sydney Solicitor for the Applicant: The applicant appeared in person by videoconference Counsel for the Respondent: Ms R Kumar Solicitor for the Respondent: Herbert Smith Freehills ORDERS
SYG 1205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJESH MANIVANNAN
Applicant
AND: TATA CONSULTANCY SERVICES LIMITED
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
3 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant pay:
(a)the respondent’s costs thrown away by reason of the July 2024 amendment of the statement of claim; and
(b)the respondent’s costs of the applicant’s application in a proceeding filed on 26 February 2024.
2.Those costs be fixed in the total amount of $15,000.
3.Those costs be payable at the conclusion of the proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
The applicant, Mr Manivannan, was employed by the respondent, Tata Consultancy Services Limited (TCS), for a number of years. The relationship has broken down and this proceeding is the result of that.
The proceeding was commenced by the filing of a statement of claim on 10 August 2022. On 20 September 2022, a replacement statement of claim was filed. On 17 November 2022, TCS filed an application in a proceeding seeking the summary dismissal or striking out of various paragraphs of that statement of claim. Thereafter, correspondence ensued between the parties and, on 6 February 2023, TCS filed an amended application in a proceeding. On 12 October 2023, I made orders striking out various of the paragraphs of the statement of claim. On 19 January 2024, TCS filed a defence but on 26 February 2024 Mr Manivannan filed an application to strike out that defence. On 15 April 2024 I dismissed that application. On 27 June 2024 Mr Manivannan was granted leave to file a further amended statement of claim, which he did on 1 July 2024. On that day I also made the following order:
4.The respondent file and serve any application, along with supporting evidence and submissions, by 15 August 2024 at 4:00pm seeking the applicant pay its:
(a)Costs of the application in a proceeding filed on 26 February 2024; and
(b)Its costs thrown away by reason of the further amended statement of claim.
In response to that order, TCS filed an application in a proceeding on 16 August 2024 seeking an order that Mr Manivannan pay its costs fixed in the amount of $15,000 and a further order that those costs be paid within 28 days. These reasons concern that application.
I said in my reasons for judgment of 12 October 2024, in relation to the version of the statement of claim that was filed on 20 September 2022, that “important aspects of the claims [Mr Manivannan] makes are still ambiguous, confusing, vague, unintelligible and incapable of being sensibly admitted or traversed…” Consequently, aspects of the statement of claim needed to be struck out, although I was of the view that it was not impossible for Mr Manivannan to craft a pleading which would not fall foul of r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). A little bit over three months later, as I have noted already, Mr Manivannan did indeed file a further amended statement of claim, this time with the consent of TCS.
The lack of litigation experience manifested by Mr Manivannan in his statement of claim of 20 September 2022 was seen again in his application in a proceeding seeking orders that the defence be struck out. In my reasons for judgment of 15 April 2024 I noted my agreement with TCS’s submissions that Mr Manivannan’s complaints regarding the defence were misconceived and could not be accepted.
The statutory provision which I am called upon to consider today is s.570 of the Fair Work Act 2009 (Cth) (FW Act), which provides:
570 Costs only if proceedings instituted vexatiously etc.
(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) or section 569 or 569A.
(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; or
(c)the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
The relevant part of that particular provision is s 570(2)(b) and whether I am satisfied that TCS was required to incur costs by reason of any unreasonable act or omission of Mr Manivannan.
The principles applicable to a costs order under the FW Act, as this proceeding is, were usefully summarised by Judge Forbes in Rybinski v Geocore Pty Ltd (No 2) [2024] FedCFamC2G 644 as follows:
[44] Ordinarily, in proceedings brought under the FW Act, costs will be borne by the party incurring them.
[45]In Ryan v Primesafe [2015] FCA 8, Mortimer J (as her Honour then was) said at [64]:
[…] The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants with genuine grievances and arguable cases so as to deter them from commencing proceedings. It is an access to justice provision. In relation to respondents, it is designed to ensure that they can pursue arguable legal and factual responses to the claims made against them.
[46]An order for costs is a departure from the usual rule. In an otherwise no-costs jurisdiction, the discretion to order costs must be exercised with caution. A clear case for its exercise must be demonstrated. Even where the threshold is met, the Court retains a discretion.
[47] The applicant for costs bears the onus of satisfying the Court that one or more of the criteria in s 570(2) are met. Determining whether a party acted unreasonably must be determined objectively according to the facts on a case by case basis.
(further citation omitted)
It is not reasonable to make allegations that cannot sensibly be addressed, which was, essentially, the basis of my first judgment in this matter and a problem which persisted until the further amended statement of claim was filed. TCS has detailed in its evidence and written submissions the time and effort which was devoted to dealing with Mr Manivannan’s allegations up to the point where they were ultimately put to one side by the filing of the fresh pleading last month. It was not reasonable of Mr Manivannan to vex the respondent in that way with such pleadings.
I appreciate Mr Manivannan's submissions that he did the best he could, and that when he was corrected by the Court, he accepted that correction – “course corrected” as he put it - and did his best with the additional knowledge and experience which he had gathered. I also have no doubt that Mr Manivannan is genuinely doing his best to make his claim in this case and to do so appropriately. Regrettably, despite his best efforts, he has manifestly failed to do so on more than one occasion. First, there were the deficiencies in his pleading which led to the further amended statement of claim. Secondly, there was his application in a proceeding to strike out the defence partly based on the fact that the defence relied on his own statement of claim. That is a curious allegation. The difficulty Mr Manivannan has in this case is that his well-meaning failures are of a sufficiently egregious nature that they should not escape costs consequences.
I consider that the tests under s.570 of the FW Act have been met and that TCS should have its costs thrown away by reason of the filing of the further amended statement of claim and by reason of the dismissal of the application in a case earlier this year concerning its defence. That being so, the question of quantification of the cost arises.
The Rules do not provide adequately for an order for costs thrown away by reason of an amendment. Costs of that sort are generally determined by way of a taxation.
I note that the respondent is content to have a lump-sum costs order made. I accept that TCS's solicitor and client costs thrown away by reason of the amendment stand at $57,601.41 and that its solicitor and client costs of the application in a proceeding are $21,815.40. These figures amount to a very significant sum once combined. Notwithstanding that, TCS is willing to accept $15,000 in total for its costs of these two issues on a party and party basis.
It seems to me, given that more than one court event has been associated with the pleading of the statement of claim and the interlocutory application concerning TCS's defence, and that TCS has been at all times represented by counsel, that $15,000 is a reasonable amount to award it, and I do so. However, I am not minded to order that the costs be paid immediately. I appreciate that TCS seeks not only to be compensated for the expenses which it has incurred, but also wishes this particular occasion to be of salutary value to Mr Manivannan. It does not seem to me that that is an appropriate purpose to which an order for costs should be put. The relevant order will be that the costs be payable at the conclusion of the proceeding.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 17 December 2024
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