Parsons v R Collie Excavations Pty Ltd (Trustee) (No 2)
[2022] FedCFamC2G 955
Federal Circuit and Family Court of Australia
(DIVISION 2)
Parsons v R Collie Excavations Pty Ltd (Trustee) (No 2) [2022] FedCFamC2G 955
File number: MLG 2047 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 28 October 2022 Catchwords: COSTS – section 570 of the Fair Work Act 2009 (Cth) - whether the respondent was entitled to an order for costs because the applicant instituted the proceeding vexatiously or without reasonable cause – whether the respondent was entitled to an order for costs because of unreasonable acts on the part of the applicant – relevant considerations. Legislation: Fair Work Act 2009 (Cth) s.570 Division: Fair Work Number of paragraphs: 12 Date of hearing: 28 October 2022 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the applicant Solicitor for the Respondent: Ms L. Hansen (Leonie Hansen Solicitor) ORDERS
MLG 2047 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SCOTT PARSONS
Applicant
AND: R COLLIE EXCAVATION PTY LTD AS TRUSTEE FOR THE RC BUSINESS TRUST
Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.The applicant pay 50 percent of the respondent’s costs of the proceeding.
2.The respondent file and serve written submissions as to the proper quantification of those costs on or before 11 November 2022.
3.The matter be listed for hearing on the question of quantification of costs on 17 November 2022 at 10:15am by telephone.
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
INTRODUCTION
On 6 October 2022, I made orders in this matter dismissing the application brought by the applicant, Mr Parsons. The respondent, R Collie Excavation Pty Ltd as Trustee For The RC Business Trust (“R Collie Excavation”), has now sought an order for costs which, as this is a matter arising under the Fair Work Act 2009 (Cth)(“FW Act”), requires consideration of s.570 of that Act.
When the matter was called on this morning, there was no appearance by or for Mr Parsons. The Court file records that my associate wrote to the parties on 21 October 2022 advising them of the matter being listed for directions today. I am satisfied that Mr Parsons was aware of the listing today and, in the circumstances, I see no reason not to determine the costs application which has been made by R Collie Excavation.
LEGISLATION
Section 570 of the FW Act provides relevantly as follows:
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.
CONSIDERATION
Unreasonable or vexatious commencement of proceeding
R Collie Excavation filed submissions dated 20 October 2022 which I have read and considered this morning.
I have taken into account the submissions that Mr Parsons brought the matter unreasonably or vexatiously because he was disappointed that what he had hoped would come of his casual employment with R Collie Excavation did not eventuate. As recorded in my reasons for judgment, Mr Parsons certainly indicated in his evidence that he had hoped that working for R Collie Excavation would provide him with additional skills and that he was disappointed that that did not happen. However the evidence, in my view, did not go so far as to show that that disappointment was the factor motivating the proceeding. That is not to say that the manner in which Mr Parsons pleaded or articulated his case was clear or that the possibility that such disappointment was a motivating factor is entirely excluded. Nevertheless, his contention was that he was not the sort of casual that R Collie Excavation contended that he was, and that he had expected to continue working.
Mr Parsons was unrepresented and, as far as I could tell, had not received any particular advice in relation to the commencement of this proceeding or the antecedent Fair Work Commission (“FWC”) proceeding. I am not persuaded that the test under s.570 in relation to the bringing of this proceeding is made out.
Unreasonable conduct of proceeding
However, that is not to say that the manner in which Mr Parsons conducted the proceeding was not, in some respects, unreasonable. The series of events set out in R Collie Excavation’s written submissions indicates its very considerable frustration in dealing with Mr Parsons and sets out a number of matters in that regard.
One particular matter which was apparent to me in the course of considering this matter and preparing my reasons, was Mr Parsons’s failure to articulate his claim in the context of this case. It was largely necessary to deduce the claim from the materials which he had filed in the FWC and which he had indiscriminately annexed to an affidavit. That was far from an appropriate approach and R Collie Excavation’s complaints in connection with it are quite understandable.
R Collie Excavation also complains that Mr Parsons did not let it know, until beyond the eleventh hour, that witnesses would be required for cross-examination. The frustration associated with his lack of responsiveness is palpable in its written submissions. However, it has to be said that Mr Parsons did cross-examine those witnesses and the efforts to which R Collie Excavation’s representatives were put on the Friday before the Monday hearing were, in the end, not wasted. Whether or not any additional expenses were incurred as a consequence of the urgency of the action taken by R Collie Excavation’s solicitor is unknown to me.
The presentation of the case overall was far from clear and Mr Parsons appeared to not understand the necessity to comply with, at the very least, timetabling orders. This was shown most clearly on the first day of the trial when he failed to appear, and arrangements had to be made for him to present himself to Court a couple of hours after the listed commencement time. This caused some delay and potentially some wasted costs.
CONCLUSION
In all the circumstances and taking into account the fact that Mr Parsons was unrepresented, and so made some mistakes which a represented party might not have made, I think it is appropriate to award R Collie Excavation half its costs of the proceeding.
The next matter to be determined is whether those costs should be quantified by reference to the Court’s scale or by way of taxation according the Federal Court Rules.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 28 October 2022
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