Mija Pty Ltd v Gravener
[2020] FCCA 681
•26 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MIJA PTY LTD & ORS v GRAVENER | [2020] FCCA 681 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act – costs – where a costs applications was made after the judgment was delivered – no costs awarded. |
| Legislation: Fair Work Act 2009 (Cth), s.570 |
| Cases cited: Adamczak v Alsco Pty Ltd (No 4) [2019] FCCA 7 Imogen Pty Ltd v Sangwin (1996) 70 IR 254 |
| First Applicant: | MIJA PTY LTD |
| Second Applicant: | JANET HOGAN |
| Third Applicant: | MICHAEL HOGAN |
| Respondent: | JODIE GRAVENER |
| File Number: | BRG 551 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing date: | 11 March 2020 |
| Date of Last Submission: | 11 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 26 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taylor |
| Solicitors for the Applicant: | Crosby Brosnan & Creen Lawyers |
| Counsel for the Respondent: | Ms Taylor |
| Solicitors for the Respondent: | Anderson Fredericks Turner |
ORDERS
That the application for costs be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 551 of 2018
| MIJA PTY LTD |
First Applicant
And
| JANET HOGAN |
Second Applicant
And
| MICHAEL HOGAN |
Third Applicant
And
| JODIE GRAVENER |
Respondent
REASONS FOR JUDGMENT
Background
Over a period of four days between 25 March and 9 October 2019 I heard an application filed on 19 June 2018, filed by the applicant Ms Gravener seeking a finding of adverse action and or discrimination under the Fair Work Act 2009 (FWA).
On 13 January 2020 I dismissed that application.
This determination concerns the issue of costs.
The respondents, MIJA Pty Ltd, Michael Hogan and Janet Hogan seek costs in the sum of $57,666 pursuant to section 570 of the FWA on the basis that the applicant either instituted proceedings without reasonable cause, or alternatively that the applicant’s unreasonable acts or omissions caused the respondents to incur the costs of the proceedings or substantially all of them. (Paragraph 1 of the respondent’s written outline filed 10 March 2020).
For the reasons that follow I have dismissed the respondent’s application for costs.
Discussion
This jurisdiction is generally a no costs jurisdiction and the discretion to award costs arises under section 570 of the FWA.
Pursuant to section 570(2) costs may only be ordered if relevantly the court is satisfied that:
a)the party instituted the proceedings vexatiously without reasonable cause; or alternatively;
b)the parties unreasonable act or omission caused the other party to incur the costs.
The applicant and respondent have both appropriately referred to the decision of Trustee for the MTGI Trust v Johnston (No.2) [2016] FCAFC 190. In that decision the full court held that not only must the discretion to award costs “be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6].
Importantly when considering awarding costs pursuant to the first limb in section 570(2)(a) I must consider whether at the time the proceeding was commenced, the applicant had reasonable cause to commence it. (Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at [261]; Hutchinson v Comcare (No5) [2019] FCA 1665 (“Hutchinson”).
The applicant’s claim was based on four claims in respect of adverse action and one with respect to discrimination. As I found, unless the applicant was found to be an employee, only one of those claims, relating to adverse action relevant to parental responsibilities, was available to the applicant as an independent contractor.
I found that the applicant was not an employee. Importantly when assessing whether the applicant had reasonable grounds to commence proceedings asserting that she was an employee there were two aspects relating to the evidence which were known by the applicant prior to her commencing proceedings.
The applicant knew that she had signed an agreement wherein she agreed to conduct “her own home based business”. Furthermore the applicant knew that when she became a manager she did not sign any subsequent agreement.
Secondly when the applicant was terminated she immediately contacted the head office of Tupperware Australia to complain to them about her termination. In doing so the applicant was acting in the knowledge that Tupperware Australia governed the actions of the respondent and herself.
In those circumstances I cannot be satisfied that the applicant commenced proceedings relating to adverse action as a result of an employment arrangement on reasonable grounds.
As a result of my finding relating to the lack of an employment relationship the only issue left for determination was with respect to the action relating to discrimination as it was open to the applicant whether she was an employee or an independent contractor.
The applicant alleged that she was discriminated against as a result of her family responsibilities. It was the applicant’s case that she had been discriminated against by Ms Hogan during a meeting when she was asked to move to the back of a room with her child in circumstances where there were other parents who had children who were not asked to move to the back of the room.
The respondents in answer to that claim gave evidence through Ms Hogan that the reason the applicant had been asked to move to the rear of the room was so that the meeting which was being streamed live to other participants would not be disrupted. The respondents argued that the applicant had positioned herself and her child behind an audio-visual device and that in the event the child made noise this would interfere with the smooth running of the meeting.
I was satisfied that the respondents answer to the alleged discrimination was made out and as a result I dismissed the applicant’s application.
Notwithstanding that I found that the applicant was not discriminated against I must nevertheless ask myself the question whether that aspect of her claim was arguable on reasonable grounds.
It is relevant to note that the termination notice provided to the applicant did not provide any reason for the termination other than that the termination was made pursuant to the agreement that the applicant had signed with the respondent and Tupperware Australia.
At paragraph 75 of my reasons delivered on 13 January 2020 I set out the reasons that the respondents say the applicant was terminated. At paragraph 90 of those same reasons I set out that I accept that the applicant’s termination was for the reasons set out by Ms Hogan and otherwise set out in paragraph 75 of my reasons.
It is also relevant to note that the applicant had previously lost a position as manager with the same respondents due to her poor behaviour. Ultimately prior to the proceedings being commenced the applicant had been informed that one of the reasons she had been terminated was due to her poor behaviour and difficult and disruptive behaviours at meetings.
It was argued by the applicant’s counsel that in circumstances where the applicant was not provided any reason in the termination notice it was reasonable for her to commence proceedings relating to her alleged discrimination. I find favour in that submission.
I am satisfied that the applicant was made aware of the reasons the respondents say her contract was terminated prior to commencing the proceedings. In an affidavit sworn on 6 February 2020 Paul Davis provides evidence that the applicant was made aware that her behaviour was at least one of the reasons why she was terminated as early as 16 April 2018. (Annexure PD-1).
However I am satisfied that the applicant held the belief that another reason for her removal to the rear of the room was due to the respondents discriminating against her. The fact that I ultimately found that the respondent moved the applicant to the rear of the room for a reason not relating to discrimination is not relevant to the test.
It is an agreed fact that Ms Hogan asked the applicant to move to the back of the room. The applicant asserted that Ms Hogan in doing so created a scene and that other managers at the meeting commented upon her actions.
The applicant ultimately did not call any witnesses to support her assertion that other managers had commented upon Ms Hogan’s actions. Ultimately the fact that the applicant did not call other witnesses was one of the reasons why I found there was insufficient evidence to support the assertion that the applicant had been discriminated against.
It was submitted on behalf of the applicant that there was some confusion with regards to her need to call witnesses and indeed a perusal of the transcript leads me to accept that the applicant may have been confused as to her need to call witnesses to support her claim. This goes to the fact that the applicant was self-represented and was attempting to prosecute her claim to the best of her ability in circumstances where she had no prior experience.
The respondents relied upon many of my findings as to reasons why I would be satisfied that the applicant commence proceedings without reasonable cause. I am of the view that I cannot rely upon my findings in relation to the substantive proceedings to support any finding in this application because I must assess the reasonableness or otherwise of the applicant’s actions as at the commencement of the proceedings and in those circumstances I reject those submissions.
For these reasons I am not satisfied that the applicant commenced the proceedings with respect to the discrimination component of her claim without reasonable cause.
The respondents also argue that costs should be awarded due to the applicant’s unreasonable acts and omissions which caused the respondents to incur the cost of the proceedings.
In support of that argument the respondents raise a reference in the application to the “trip to Dubai” and note that there was no alleged relevant right or breach relating to that trip and also the respondents argue that the plaintiffs rejection of their offer made on 16 April 2018 was unreasonable in the context of the factual weakness of the claim as found by me.
Having regard to the fact that the applicant was self-acting and as a result not experienced in litigation or having the benefit of competent independent legal advice I am not persuaded that the alternative basis for awarding costs is made out.
The respondents argue that even if I were satisfied that the discrimination component of the applicant’s claim was commenced on reasonable grounds I would nevertheless award costs if I found that the employment aspect of the applicant’s claim was not commenced on reasonable grounds.
It was further argued that the discrimination issue could have been contained to one day, possibly two and in those circumstances I should award at least some of the costs sought as the majority of the case was focused on whether the applicant was an employee or independent contractor.
In Adamczak v Alsco Pty Ltd (No 4) [2019] FCCA 7 it was stated at [131]-[132]:
“the authorities make it plain that the Fair Work jurisdiction is primarily a no cost jurisdiction. In Clarke (Constuction, Forestry, Mining and Energy Union (2008) 170 FCR 574) the full court indicated that the discretion, arising under section 570 (2), was to be exercised carefully and not invoked merely because a party had not conducted at litigation efficiently or made an inevitable concession late stop Bromberg J, in Saxena, indicated the discretion was a limited one to be exercised very carefully and, as such, was not to be engaged in each and every case involving some transgression by a party.
I bear these considerations in mind, particularly the risk that individuals, including unrepresented ones, may be deterred from bringing proceedings to protect their workplace rights, if there is a perception that the fair work area is only nominally a no cost jurisdiction, as the court will penalise, through an order for costs, each and every transgression committed by litigant, even in the case of those who unwary or ill-informed about the application of the jurisdiction to their situation.”
It follows in my view, that even when the discretion is invoked I must still bear in mind the fact that this is generally a no cost jurisdiction (s.570(2) – The party may be ordered to pay the costs). It is highly relevant in my view that the applicant self-acted throughout the proceedings and was as a result not afforded the benefit of competent independent legal advice.
In deciding whether to exercise my discretion in favour of the respondents I must consider all of the circumstances of the case.
Whilst I accept that the applicant’s presentation and prosecution of her case was at times unruly and without precision I am not persuaded that I should take the unusual step of awarding costs in this matter. It is not unusual in this jurisdiction for applicants to self-represent and as a result it is also not unusual for proceedings to be conducted in an imprecise manner relying upon at times voluminous material.
In considering all the circumstances of this case I am not persuaded that it was so unusual and with regard to the employment aspect of the case unreasonable that she should be effectively punished by a costs order.
For these reasons I am satisfied that the respondent’s application for costs should be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Associate:
Date: 26 March 2020
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