Mondal v Transclean Facilities Pty Ltd (No 5)
[2021] FCCA 738
•16 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mondal v Transclean Facilities Pty Ltd (No 5) [2021] FCCA 738
File number(s): MLG 744 of 2019 Judgment of: JUDGE O’SULLIVAN Date of judgment: 16 April 2021 Catchwords: INDUSTRIAL LAW – COSTS Legislation: Fair Work Act 2009 (Cth) s 570 Cases cited: Mondal v Transclean Facilities Pty Ltd (No 4) [2021] FCCA 596
Mondal v Transclean Facilities Pty Ltd (No 3) [2020] FCCA 3348
Mondal v Transclean Facilities Pty Ltd (No 2) [2020] FCCA 2944
Mondal v Transclean Facilities Pty Ltd (No 1) [2020] FCCA 1334
Construction, Forestry, Mining and Energy Union & Others v Clarke (2008) 170 FCR 574
Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119
Augusta Ventures Limited v Mt Arthur Coal Pty Limited [2020] FCAFC 194
Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 538
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336
Number of paragraphs: 16 Date of last submissions: 18 March 2021 Date of hearing: On the papers Place: Melbourne
Applicant Subrata Kumar Mondal Solicitor for the First Respondent Stephen Peter Byrne, Lawyer Solicitor for the Second Respondent Neesham White Gentle ORDERS
MLG 744 of 2019 BETWEEN: SUBRATA MONDAL
Applicant
AND: TRANSCLEAN FACILITIES PTY LTD
First Respondent
SHAYAN DATTA
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.There be no order as to costs.
2.The application in a case filed on 18 March 2021 be dismissed.
REASONS FOR JUDGMENT
INTRODUCTION
These reasons for decision concern an application for costs following the dismissal of the substantive proceedings for the reasons set out in Mondal v Transclean Facilities Pty Ltd (No 4) [2021] FCCA 596 (“Mondal (No 4)”).
The background to this costs application is set out in that decision and also:
(a)Mondal v Transclean Facilities Pty Ltd (No 3) [2020] FCCA 3348 (“Mondal (No 3)”);
(b)Mondal v Transclean Facilities Pty Ltd (No 2) [2020] FCCA 2944 (“Mondal (No 2)”); and
(c)Mondal v Transclean Facilities Pty Ltd (No 1) [2020] FCCA 1334 (“Mondal (No 1)”).
These reasons, in which the parties will be referred to in the same terms, should be read in conjunction with the above reasons. For the sake of brevity the background set out in the above mentioned reasons will not be rehearsed.
COSTS APPLICATION
Following the orders made for the reasons set out in Mondal (No 4) on 18 March 2021 the first respondent filed:
(a)an application in a case;
(b)an affidavit from its solicitor Mr Stephen Byrne; and
(c)an outline of submissions.
In the application in a case the orders sought by the first respondent were:
1. The application be dealt with in the papers.
2. Pursuant to section 570 of the Fair Work Act, the applicant: -
(a) pay the respondents’ costs of the proceedings; alternately
(b) pay so much of the respondents’ costs of the proceedings as were:
(i) incurred unreasonably; alternatively,
(ii) wasted;
on a standard (party and party) basis;
(c) pay the costs of this application;
3. Such further or other order as is appropriate.
In the affidavit of Mr Stephen Byrne filed in support of the costs application, the first respondent’s solicitor deposed:
1. Except where otherwise expressly stated I make this affidavit from my own knowledge in support of an application brought by the first respondent to have the applicant pay the respondents' costs of this proceeding.
2. I searched the Australian Taxation Office's website to determine personal services income and learned ( that is not PSI
If you're an employee earning only salary and wages, you are not affected by the personal services income (PSI) rules. But, if you are operating through an entity, such as a company, partnership or trust, and are an employee of that entity the PSI rules may still apply.
3. The applicant' s entitlement to personal services income derived from his status as an employee of the partnership he set up with his wife, which accounted for the income he alleged was earned by him as a level 3 employee of the first respondent.
4. I also searched the publicly available website, known as ABN Lookup, verifying traders ABN status and eligibility to collect GST and learned (
with respect to ABN 51 831 284 688:-
Current details for ABN 51 831 284 688
Entity name: MONDAL, SUBRATA KUMAR
ABN status: Active from 29 Apr 2009
Entity type: Individual/Sole Trader
Goods & Services Tax (GST): Not currently registered for GST
Main business location: VIC 3076
Historical details for ABN 51 831 284 688
Entity name From To
MONDAL, SUBRATA KUMAR 29 Apr 2009 (current)
ABN Status From To
Active 29 Apr 20 09 (current)
Entity type
Individual/Sole Trader
Goods & Services Tax (GST) From To
No current or historical GST registrations
Main business location From To
VIC 3076 01 Dec 2014 (current)
VIC 3083 11 Sep 2014 01 Dec 2014
VIC 3083 29 Apr 2009 11 Sep 2014
with respect to ABN 65 757 858 527:-
Current details for ABN 65 757 858 527
Entity name: S.K MONDAL & T MONDAL
ABN status : Active from 07 Apr 2015
Entity type:
Individual/Sole Trader
Goods & Services Tax (GST): Not currently registered for GST
Main business location: VIC 3076
Historical details for ABN 65 757 858 527
Entity name From To
S.K MONDAL & T MONDAL 07 Apr 2015 (current)
ABN Status From To
Active 07 Apr 2015 (current)
Entity type:
Family Partnership
Goods & Services Tax (GST) From To
No current or historic al GST registrations
Main business location From To
VIC 3076 07 Apr 2015 (current)
These ABN/GST details are referred to at paragraph 3 of the first respondent's response dated 14 January 2020.
5. I have not seen all the invoices produced by the applicant which make up the schedules to his claim dated 12 December 2019, but I have sighted almost all of them which the applicant produced during this proceeding, and they claim G.S.T.
6. I humbly request this Honourable Court make the orders sought in the application to which this affidavit is sworn in support.
In the submissions filed in support of the costs application the first respondent contended:
1. The Honourable Judge O’Sullivan terminated the applicant’s proceeding on 12 March, 2021. The first respondent seeks costs. The first respondent says it has a cost entitlement:
(a) from the applicant instituting the proceeding vexatiously or without reasonable cause; s. 570(2)(a) of the Fair Work Act, and/or his
(b) unreasonable acts or omissions; s. 570(2)(b) of the Fair Work Act.
2. By a claim dated 12 December, 2019, the applicant sought relief in the form of:
(a) a declaration the first respondent contravened section 45 of the Fair Work Act (para B). The applicant’s premise was an allegation he was a level 3 employee covered by the Cleaning Services Award 2010; and he sought
(b) loss and damage as an underpaid level 3 employee (para A). The applicant attached schedules to his 12 December, 2019, claim, setting out the payments he received, details of the award, and other information said to make out underpayment.
3. Yudhvir Rangi, the applicant’s solicitor, in an affidavit affirmed 7 May, 2020, annexed tax returns of the applicant marked “YR-7.”
Three issues emerge from the claim & affidavit annexures warranting a costs’ order, per para 1, above.
1. The applicant had an A.T.O. determination his income was personal services income
4. That determination appears in the applicant’s returns filed with the A.T.O. in 2016 & 17 and his reporting personal services income consistent with the psi determination in 2018. The A.T.O.’s personal services income eligibility criteria appear in the affidavit of Stephen Peter Byrne, sworn 15 March 2021, filed in support of this application.
2. The applicant collected G.S.T. on the sums he received in the schedules attached to his claim
5. Neither the applicant, nor the partnership with his wife through which he invoiced from 2015, was registered to collect G.S.T. The applicant remitted none of the G.S.T. he collected to the A.T.O. Invoice details and records from the A.T.O.’s ABN Lookup Portal, denoting G.S.T. status, appear in the affidavit of Stephen Peter Byrne, sworn 15 March, 2021, filed in support of this application.
3. The applicant collected more in G.S.T. than he paid in all forms of tax
6. From the schedules attached to the applicant’s claim, he received income:
Year from Transclean as employee Invoiced income 2013 $75,520.00 2014 $78,952.00 2015 $88,704.00 2016 $9,026.00 $88,418.00 2017 $42,059.00 $50,897.00 2018 $18,507.00 $30,360.00 $69,592.00 $412,851.00
From the returns filed with the A.T.O., we know the applicant paid tax:
Year Tax paid by Transclean Tax paid by applicant 2013 $11,220.00 2014 $14,705.52 2015 $8,522.80 2016 $1,427.00 $2,722.07 2017 $7,220.00 $144.91 2018 $3,696.00 0.00 $12,343.00 $37,315.30 In the circumstances, the applicant paid tax of only $37,315.30 on invoiced income he received ($412,851) and the G.S.T. alone collected by the applicant on that income exceeded $37,500 (@10%). In years 2013 – 2018, the applicant received total income of $482,443.00 (invoiced & as employee of Transclean), but reported income of only $305,954.00 to the A.T.O.
No claim available to this applicant on the applicant’s facts
7. These issues were pleaded by the first respondent2 and, viewed objectively according to Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879), had this proceeded to trial:
(a) the applicant could never have made out he was an employee or regarded himself as such;
(b) he could not have sought damages as an employee from declarations he made to the A.T.O.;
(c) his application was utterly misconceived and, therefore, vexatious (see para 14, following), or made without reasonable cause.
In the circumstance, the first respondent’s costs were incurred without cause or, alternately, wasted.
Relevant law, inferences to be drawn and the orders to be made
8. Having regard to section 79 of the Federal Circuit Court Act (and the power to order costs against lawyers aside - see the reasoning of the Honourable Judge Driver, in Dahler v Australian Capital Territory & Anor (No.3) [2015] FCCA 2615 (30 September 2015) (“Dahler”)), order 21 of the Federal Circuit Court Rules cannot ground a basis to order costs in a proceeding brought under the Fair Work Act. This Honourable Court’s capacity to order costs is confined to the Fair Work Act, and section 570(1) confers jurisdiction.
9. In Dahler, at para 12, the Honourable Judge Driver said:
“The respondents submit and I accept that they are entitled to costs because an application that is utterly misconceived should be regarded as vexatious or made without reasonable cause for purposes of s.570(2)(a).” The relevant principles guiding a s. 570(2)(a) order were addressed by the Honourable Judge O’Sullivan of this Court in Doyle v Emperor Energy Limited (No.2) [2017] FCCA 3088 (8 December 2017) (“Doyle”), noting what was said at paras 11 – 48; noting especially paras 18 – 21 and 35 with respect to the applicant failing on his own facts, enlivening the Honourable Justice Wilcox’s reasoning in Kanan v Australian Postal and Telecommunications Union [1992] FCA 539.
10. The first respondent says this Hounourable Court can infer the applicant’s failure to recruit a lawyer to represent him in this proceeding (after Mr Rangi withdrew) and his other omissions, at least from 7 May 2020, are wholly attributable to the facts, matters and circumstances referred to above.
11. If this Honourable Court is not persuaded to order the applicant pay all the first respondent’s costs, the first respondent seeks costs, as per para 23 of Doyle. Those costs should be:
(a) assessed on a party and party basis; and
(b) follow the 7 May 2020 (the date of Mr Rangi’s affirmed affidavit), from which time there could be no basis to institute (or continue) any proceeding;
Such an order would alleviate any requirement the applicant meet the costs incurred addressing statute barred components of his case with which he persisted notwithstanding contrary directions.
12. The first respondent also says the failure by the applicant to comply with any orders from 28 May 2020 constitutes an unreasonable omissions within the meaning of s. 570(2)(b).
13. The Federal Court’s costs practice note, states, relevantly:
(GPN-COSTS):
General Costs Principles
3.13The purpose of a costs order is to compensate a successful party rather than punish an unsuccessful party. However, the Court will consider the appropriateness of the making of a special costs order in circumstances which may warrant it, including where parties have failed to comply with their pre-litigation "genuine steps" obligations,[10] where the "overarching purpose" duty has not been met, where parties engage in an abuse of process, raise unmeritorious arguments before the Court or otherwise conduct themselves inappropriately in the litigation.
Notwithstanding the confines of the Federal Circuit Court Act, this Honourable Court works within the parameters of the Federal Court’s practice note and making a party and party costs order in a no cost jurisdiction of the Court would meet the purpose recognised in (GPN-COSTS).
Despite being given the opportunity to do so the applicant has not filed any submissions as to costs. Given the orders made in Mondal (No.4) and as there was no objection the first respondent’s application has been considered on the papers.
APPROACH TO COSTS APPLICATIONS
In Mondal (No 3) the approach to an application for costs (that had been made by both respondents at that time) in relation to the proceedings under the Fair Work Act 2009 (Cth) (“FW Act”) was set out as follows:
Relevant provisions
10. … the costs applications made by the respondents actually fall to be determined by reference to the provisions of s.570 of the FW Act which provides:
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction 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 s.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…
11. In Ryan v Primesafe [2015] FCA 8, Mortimer J dealt with an application for costs arising from proceedings under the FW Act. In relation to the provisions in s.570 of the FW Act generally it was said:
64. I accept the general import of the authorities relied on by the applicant and Mr McDonald in their written submissions about the significance of the threshold set by s570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s570, there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s570(2)should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd[2011] FCA 395at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s570 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 (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2)(2012) 203 FCR 430; [2012] FCAFC 103 at [3]- [4] per Jessup and Tracey JJ.
65. None of those propositions deny the Court’s ability to find that one or both of the two preconditions expressed in ss570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the Court responsibly.
12. In Tsilibakis v Transfield Services (Australia) Pty Ltd (No. 2) [2015] FCA 1048 White J said of the relevant provisions under the FW Act that:
[7] It is not necessary to canvass in detail the authorities bearing upon the application of s 570. The relevant principles are well established. Section 570 and its predecessors are to be understood as reflecting a legislative policy of protecting parties to proceedings under the Act from orders for costs so that parties with a genuine grievance will not be discouraged from pursuing a remedy to which they may be entitled, or from pursuing litigation in the manner which they deem best, for fear of an adverse costs order: Construction, Forestry, Mining and Energy Union v Clarke[2008] FCAFC 143, (2008) 170 FCR 574 at [29]; Ashby v Slipper (No 2) [2014] FCAFC 67, (2014) 314 ALR 84 at [35]. The occasions upon which costs will be awarded under s 570 are likely to be exceptional: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission[2006] FCAFC 199; (2006) 156 FCR 275 at [60].]...
13. The effect of s.570 of the FW Act is to limit the Court’s power in relation to any order for costs in respect of proceedings under the FW Act. As a result, the Court may only order a party to such proceedings to pay the costs of another party only if the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause, or that the party’s unreasonable act or omission caused the other party to incur costs.[1]
[1] see also recent Full Court decision in Augusta Ventures Limited v Mt Arthur Coal Pty Limited [2020] FCAFC 194 at [99] to [107] on background to those provisions.
14. No order for costs can be made unless it is demonstrated one or more of the abovementioned exceptions in s.570(2) of the FW Act has been established. Even then, the award of costs remains within the discretion of the Court.
…
17. Either of the provisions on which the respondents rely to ground their respective application for costs are one of the exceptions to the general rule that in proceedings under the FW Act each party bears its own costs. Moreover as the decision in Construction Forestry Mining and Clarke [2008] FCAFC 143 (Clarke) makes clear the Court still retains a discretion on the question of costs.[2]
[2] see Clarke at paragraph [29].
18. In relation to the claim under s.570(2)(a) of the FW Act, the respondents said that the proceedings were issued without reasonable cause or had no reasonable prospect of success.
19. The relevant test for the purposes of these proceedings was explained by Wilcox J in Kanan v Australian Postal and Telecommunications Union [1992] FCA 539 at [29] as follows:
“whether, upon the facts apparent to the applicant at the time of instituting proceedings, there was no substantial prospect of success.”
20. His Honour went on to explain in the same paragraph that:
“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.”
21. The particular requirements of s.570(2)(a) were the subject of a Full Court decision in Baker v Patrick Projects Pty Ltd (No 2)[2014] FCAFC 166. In that case, the Full Court considered the phrase “without reasonable cause” and, at paragraph [9], endorsed the following summary of authorities relating to the meaning and application of this phrase by Pagone J in Construction, Forestry, Mining and Energy Union v Corinthian Industries (Aust) Pty Ltd (No 2)[2014] FCA 351 at [8]:
“...To exercise the discretion conferred by s.570(2)(a) of the FW Act the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia[1978] HCA 51; (1978) 140 CLR 470 at 473; [1978] HCA 51.”
22. In Kanan v Australian Postal and Telecommunications Union [1992] FCA 539 Wilcox J indicated at paragraph [264] that one way of testing whether a proceeding was instituted “without reasonable cause” was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no “substantial prospect of success”. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant’s own version of the facts.
23. It is worth also noting that courts have accepted that cost orders made pursuant to s.570(2)(a) of the FW Act and which relate to proceedings instituted “without reasonable cause” are not restricted to exceptional cases. Although an award for costs under s.570 will generally be ‘an exceptional order’ in that it is a divergence from the usual course, it is now accepted that there is no need to demonstrate exceptional circumstances in order to enliven the Court’s jurisdiction to award costs: (see Spotless Services Australia Ltd v Marsh [2004] FCAFC 155 at [12] affirmed in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2)[2015] FCAFC 97 at [15]–[17]).
…
26. The other basis upon which it was sought by the respondents that there be an award of costs against the applicant was under s.570(2)(b) of the FW Act that unreasonable acts or omissions by the applicant caused the respondents to incur costs.
27. For the purposes of s.570(2)(b) of the FW Act, the Court must be satisfied that two criteria have been fulfilled, as set out in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 (“Clarke”) they are:
(a) that a party must have engaged in an unreasonable act or omission; and
(b) that the unreasonable act or omission must have caused another party to incur costs in connection with the proceedings.
28. Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case (see Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879).
For the purposes of these reasons the same approach will be adopted. However, even where the statutory preconditions in s.570 of FW Act have been satisfied costs do not automatically follow (see Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119 at [208]).
CONSIDERATION
Given the first respondent’s submissions the claim for costs relying on the exemption in s.570(2)(a) of the FW Act appears to be on the basis of following arguments:
1. The applicant had an A.T.O. determination his income was personal services income
4. That determination appears in the applicant’s returns filed with the A.T.O. in 2016 & 17 and his reporting personal services income consistent with the psi determination in 2018. The A.T.O.’s personal services income eligibility criteria appear in the affidavit of Stephen Peter Byrne, sworn 15 March 2021, filed in support of this application.
2. The applicant collected G.S.T. on the sums he received in the schedules attached to his claim
5. Neither the applicant, nor the partnership with his wife through which he invoiced from 2015, was registered to collect G.S.T. The applicant remitted none of the G.S.T. he collected to the A.T.O. Invoice details and records from the A.T.O.’s ABN Lookup Portal, denoting G.S.T. status, appear in the affidavit of Stephen Peter Byrne, sworn 15 March, 2021, filed in support of this application.
3. The applicant collected more in G.S.T. than he paid in all forms of tax
6. From the schedules attached to the applicant’s claim, he received income:
…
In the circumstances, the applicant paid tax of only $37,315.30 on invoiced income he received ($412,851) and the G.S.T. alone collected by the applicant on that income exceeded $37,500 (@10%). In years 2013 – 2018, the applicant received total income of $482,443.00 (invoiced & as employee of Transclean), but reported income of only $305,954.00 to the A.T.O.
No claim available to this applicant on the applicant’s facts
7. These issues were pleaded by the first respondent2 and, viewed objectively according to Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879), had this proceeded to trial:(a) the applicant could never have made out he was an employee or regarded himself as such;
(b) he could not have sought damages as an employee from declarations he made to the A.T.O.;
(c) his application was utterly misconceived and, therefore, vexatious (see para 14, following), or made without reasonable cause.In the circumstance, the first respondent’s costs were incurred without cause or, alternately, wasted.
With respect, the submissions appear to proceed upon a misunderstanding of the approach to the determination of whether a person is engaged as an independent contractor or an employee. The FW Act imposes obligations on employers in relation to their employees and confers benefits and rights on employees. It does so without defining when someone is an employee as distinct from an independent contractor, leaving on modern authority (the assessment of the relationship in its totality, the system of work, the work practices and) the approach to a multifactorial assessment of the true legal relationship of the parties to be done in a practical and realistic way: see for e.g: approach in Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 538 at paragraphs [83] to [89]. These proceedings never got to that stage because of the problems with the applicant’s pleadings and failure to comply with Court orders. That doesn’t mean the claim was vexatious or instituted without reasonable cause.
Given the reliance on the material in the affidavit and submissions by the first respondent it is important to note that the decision in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 at [219] noted arrangements in relation to taxation were part of the assessment and not determinative particularly where this was on a self-assessed basis. In the circumstances the authorities that were referred to in the first respondent’s submissions at paragraphs 8 & 9 don’t assist its argument. Accordingly, I am unable to be satisfied the grounds exist to make an order for costs on the basis of the exemption in s.570(2)(a) of the FW Act.
Turning then to the first respondent’s claim for costs under s.570(2)(b) of the FW Act the basis upon which appears to have been advanced is set out in the following paragraphs of the submissions:
10. The first respondent says this Hounourable Court can infer the applicant’s failure to recruit a lawyer to represent him in this proceeding (after Mr Rangi withdrew) and his other omissions, at least from 7 May 2020, are wholly attributable to the facts, matters and circumstances referred to above.
11. If this Honourable Court is not persuaded to order the applicant pay all the first respondent’s costs, the first respondent seeks costs, as per para 23 of Doyle. Those costs should be:
(a) assessed on a party and party basis; and
(b) follow the 7 May 2020 (the date of Mr Rangi’s affirmed affidavit), from which time there could be no basis to institute (or continue) any proceeding;
Such an order would alleviate any requirement the applicant meet the costs incurred addressing statute barred components of his case with which he persisted notwithstanding contrary directions.
12. The first respondent also says the failure by the applicant to comply with any orders from 28 May 2020 constitutes an unreasonable omissions within the meaning of s. 570(2)(b).
The conduct of these proceedings by both the applicant and the first respondent has at various times left something to be desired[3] The claim relying on the exemption in s570(2)(b) of the FW Act can be disposed of quickly. Firstly, the first respondent’s claims for costs on this basis include claims for costs incurred when such an argument had already been dealt with in Mondal (No 3). Secondly, given the history of the proceedings since, and that the first respondent only appeared at two electronic court events (which were brief) after that decision and filed no material until this application, I cannot be satisfied any acts or omissions in the relevant sense rose to the standard of unreasonableness such as that referred to in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [165] and caused the first respondent to incur costs.
[3] See for example Mondal (No 3) at paragraphs [15], [16] and [34].
Given the circumstances of this case (and that there is something odious about the first respondent and being asked to make orders for it to have its costs of the proceedings when previous applications to do so have already been dealt with and rejected (see Mondal .(No.1) & Mondal (No.3))) it is otherwise not appropriate to exercise the discretion to make an order for costs. Accordingly I make the orders set out at the beginning of these reasons.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 16 April 2021
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