Mutch v ISG Management Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954

File number: VID 1492 of 2018
Judge: BROMBERG J
Date of judgment: 8 July 2020
Catchwords: COSTS – s 570(2)(b) of the Fair Work Act 2009 (Cth) – various interlocutory applications unsuccessful – adjournment application causing costs to be thrown away – whether any “unreasonable act or omission” to justify adverse costs orders – consideration of purpose of s 570 – whether presence of litigation funder relevant to exercise of discretion
Legislation: Fair Work Act 2009 (Cth) s 570
Cases cited:

BMW Australia Limited v Brewster [2019] HCA 45

Bywater v Appco Group Australia Pty Ltd [2019] FCA 799

Construction, Forestry, Mining and Energy Union v Clark (2008) 170 FCR 574

Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275

Hutchinson v Comcare (No 2) [2017] FCA 370

Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191

MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Mutch v ISG Management Pty Ltd [2020] FCA 362

Ryan v Primesafe [2015] FCA 8

Saxena v PPF Asset Management Limited [2011] FCA 395

Turner v Tesa Mining (NSW) Pty Ltd [2019] FCA 1644
Date of hearing: Determined on the papers
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicant: Mr I Pike SC with Mr J Dooley
Solicitor for the Applicant: Shine Lawyers Pty Ltd
Counsel for the Respondent: Mr F Parry QC with Ms C Button QC and Mr B Avallone
Solicitor for the Respondent: Lander & Rogers

ORDERS

VID 1492 of 2018
BETWEEN:

ROBERT MUTCH

Applicant
AND:

ISG MANAGEMENT PTY LTD (ACN 142 916 970)

Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

8 JULY 2020

THE COURT ORDERS THAT:

1.There be no order for costs in each of the following interlocutory applications:

(i)the applicant’s application dated 19 July 2019; and

(ii)the respondent’s application dated 10 May 2019.

2.In relation to the applicant’s interlocutory application of 24 May 2019:

(i)there be no order as to costs in relation to the hearing on 20 August 2019; and

(ii)costs are otherwise reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMBERG J:

  1. These reasons deal with various applications for costs arising from the various interlocutory applications addressed in my reasons for judgment published as Mutch v ISG Management Pty Ltd [2020] FCA 362 (“earlier reasons”).  By that judgment the Court dismissed the respondent’s (“ISGM”) interlocutory application for declassing and class-closure/opt-in orders (“ISGM’s declassing application”) and two interlocutory applications brought by the applicant (“Mutch”) – an interlocutory application for a common fund order (“application for CFO”) and an application for summary judgment on ISGM’s cross claim (“application for summary judgment”).  As indicated in the earlier reasons, I…

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Details
Case
[2020] FCA 954
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by ISG Management Pty Ltd (ISGM) for costs incurred from various interlocutory applications brought by Mr Mutch. ISGM sought the imposition of adverse costs orders on Mr Mutch, claiming that he had caused costs to be thrown away by seeking an adjournment of his own interlocutory applications. The primary legal issue before the Court was whether Mr Mutch's actions amounted to an "unreasonable act or omission" under s 570(2)(b) of the Fair Work Act 2009 (Cth), warranting an adverse costs order against him. The Court also considered whether the presence of a litigation funder was relevant to the exercise of its discretion.

The Court found that ISGM's submissions did not demonstrate that any costs were actually incurred by it as a result of Mr Mutch pressing the application. Even if some costs were incurred, it was not unreasonable for Mr Mutch to seek relief in accordance with the law as it stood at that time. The Court noted that the possibility of exercising its discretion favourably to Mr Mutch did not render the pressing of that application an unreasonable act within the meaning of s 570(2)(b) of the FW Act. Furthermore, the Court held that it was ISGM's adjournment application which caused the vacation of the hearing dates on 20 and 21 August 2019, and not Mr Mutch's application to adjourn his own interlocutory applications.

Accordingly, the Court dismissed ISGM's application for adverse costs orders against Mr Mutch. The Court found that there should be no order for costs in each of the interlocutory applications mentioned in the decision. In relation to Mr Mutch's interlocutory application of 24 May 2019, the Court determined that there be no order as to costs in relation to the hearing on 20 August 2019, and costs were otherwise reserved. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. There be no order for costs in each of the following interlocutory applications:

(i) the applicant’s application dated 19 July 2019; and

(ii) the respondent’s application dated 10 May 2019.

2. In relation to the applicant’s interlocutory application of 24 May 2019:

(i) there be no order as to costs in relation to the hearing on 20 August 2019; and

(ii) costs are otherwise reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ISGM’s submissions do not demonstrate that any costs were actually incurred by it as a result of Mr Mutch pressing the application. Even if some costs were incurred, it was not “unreasonable”, within the meaning of that expression in s 570(2)(b) for Mr Mutch to press for relief in accordance with the law as it stood at that time. That the Court may have exercised its discretion favourably to Mr Mutch was not so glaringly improbable as to render the pressing of that application (to the minimal degree to which it was pressed) an “unreasonable act” within the meaning of s 570(2)(b) of the FW Act. SUMMARY JUDGMENT APPLICATION By this application, Mr Mutch sought the summary dismissal of ISGM’s cross claim. As my earlier reasons state (at [139]) I determined that the most appropriate course was for the summary judgment application to be adjourned to a date to be fixed. Given that the summary judgment application has not been determined, it is surprising that any application in relation to costs should be made at this time. Whether the application succeeds or fails is likely to be a relevant consideration in any determination of whether any costs incurred to date should be awarded and to whom. On that basis alone, Mr Mutch is correct to contend that the appropriate order is that the costs of that application be reserved.ADJOURNMENT OF HEARING – COSTS THROWN AWAY Each of the interlocutory applications to which I have already referred were listed to be heard on 20 and 21 August 2019. At the outset of that hearing, ISGM applied for its interlocutory application to be adjourned. The stated basis for that adjournment application was that ISGM sought to adduce additional affidavit evidence to the affidavit evidence already filed, in support of submissions it sought to make that the proceeding be declassed. ISGM’s desire to adduce further evidence was responsive to objections made by Mr Mutch as to the admissibility of much of the evidence ISGM had already filed. ISGM’s application for an adjournment was resisted by Mr Mutch. However, Mr Mutch contended that if the adjournment application was acceded to, it would be appropriate that his interlocutory applications be also adjourned. On 20 August 2019, I determined that each of the applications listed for hearing on 20 and 21 August 2019 be adjourned to alternative hearing dates. Those applications were ultimately heard on 2 and 3 October 2019. The adjournment of Mr Mutch’s applications was consequential upon my decision to adjourn ISGM’s application. I do not accept ISGM’s contention that costs thrown away by reason of the vacation of the listing for 20 and 21 August 2019 could have been avoided if Mr Mutch had not sought the adjournment of his own interlocutory applications. In my view it was ISGM’s adjournment application which caused the vacation of the hearing dates on 20 and 21 August 2019. Mr Mutch contended that the cause of the costs thrown away by the adjournment was ISGM’s failure to have prepared and filed its evidence in admissible form prior to the hearing on 20 August 2019. Mr Mutch contended that such a failure was “unreasonable”. He submitted that ISGM should pay the price of having applied for and obtained the indulgence of an adjournment to prepare its evidence in admissible form.

Ratio Decidendi

Legal Principle Established

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