Quirk v CFMEU and Miller v CFMEU (No.3)
[2018] FCCA 1455
•8 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUIRK v CFMEU and MILLER v CFMEU (No.3) | [2018] FCCA 1455 |
| Catchwords: COSTS – Application for costs pursuant to s.570 of the Fair Work Act 2009 (Cth) in relation to unsuccessful Application in a Case for transfer to the Federal Court of Australia – meaning of the term proceeding – whether the proceedings were instituted without reasonable cause – whether the proceedings were instituted vexatiously – whether indemnity costs – costs orders made – application for costs pursuant to s.570 of the Fair Work Act 2009 (Cth) in relation to unsuccessful application for summary dismissal – whether the respondents engaged in an unreasonable act or omission – costs orders made. |
| Legislation: Fair Work Act 2009 (Cth), ss.352, 569, 569A, 570 Fair Work (Registered Organisations) Act 2009 (Cth) |
| Cases cited: Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch [2017] FCCA 81 Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch (No.2) [2017] FCCA 1788; (2017) 322 FLR 423 Shackley v Australian Croatian Club Ltd [1996] IRCA 641; (1996) 141 ALR 736 |
| Applicant: | ANDREW QUIRK |
| Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1521 of 2015 |
| Applicant: | BRIAN MILLER |
| Respondent: | CONSTRUCTION, FORESTRY MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1522 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | Matter decided on the papers |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2018 |
REPRESENTATION
| Counsel for the Applicant in proceedings SYG 1521/2015 and SYG 1522/2015: | Mr M Seck |
| Solicitors for the Applicant in proceedings SYG 1521/2015 and SYG 1522/2015: | McArdle Legal |
| Counsel for the Respondent in proceedings SYG 1521/2015 and SYG 1522/2015: | Mr B Docking |
| Solicitors for the Respondent in proceedings SYG 1521/2015 and SYG 1522/2015: | Taylor & Scott Lawyers |
ORDERS
IN PROCEEDINGS SYG 1521 OF 2015
The applicant pay the respondent’s costs on a party/party basis of the applicant’s Application in a Case made on 25 May 2017.
The respondent pay the applicant’s costs on a party/party basis of the respondent’s Application in a Case made on 17 December 2015.
Pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001 (Cth), the proceedings be transferred to the Federal Court of Australia.
IN PROCEEDINGS 1522 OF 2015
The applicant pay the respondent’s costs on a party/party basis of the applicant’s Application in a Case made on 16 June 2017.
The respondent pay the applicant’s costs on a party/party basis of the respondent’s Application in a Case made on 17 December 2015.
Pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001 (Cth), the proceedings be transferred to the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1521 of 2015
| ANDREW QUIRK |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
SYG 1522 of 2015
| BRIAN MILLER |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
REASONS FOR JUDGMENT
On 4 June 2015, Mr Andrew Quirk and Mr Brian Miller (“the applicants”) each filed an application in this Court alleging that “adverse action” was taken against them by the Construction, Forest, Mining and Energy Union (“CFMEU”) New South Wales Branch (“the respondent”) in contravention of certain general protections contained in Part 3-1 of the Fair Work Act 2009 (Cth) (“the FWA”). The applicants sought relief in the form of compensation and pecuniary penalties.
This is the third judgment to be handed down in each proceeding. The first judgment was delivered on 20 January 2017, and concerned the respondent’s Application in a Case (“AIC”) for summary dismissal filed in each respective proceeding on 17 December 2015. The applicants were successful in opposing each AIC (see Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch [2017] FCCA 81 (“Quirk and Miller”)).
The second judgment was delivered on 1 August 2017, and concerned the applicants’ AICs for transfer of their respective proceedings to the Federal Court of Australia (“FCA”) filed on 25 May 2017 (“the applicants’ first AICs for transfer to the FCA”) in proceedings SYG 1521 of 2015 and 16 June 2017 in proceedings SYG 1522 of 2015. The respondent was successful in opposing each of the AICs (see Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch (No.2) [2017] FCCA 1788; (2017) 322 FLR 423 (“Quirk and Miller (No.2))”) (however, see further below).
For the background to the substantive proceedings and the two previous AICs see Quirk and Miller at [1] – [7] and Quirk and Miller (No 2) at [1] – [6]. The current judgment involves four applications for costs. In its written submissions filed on 14 June 2017 in each of the respective proceedings in relation to the applicants’ first AICs for transfer to the FCA, the respondent made an application that the applicants pay its costs pursuant to s.570(2)(a) and/or (b) of the FWA in the event they were successful in opposing the AICs for transfer of the proceedings to the FCA.
As mentioned above (at [3]), the respondent was successful in opposing those AICs. On 15 September 2017, the applicants made another application for transfer of their respective proceedings to the FCA (“the applicants’ second AICs for transfer to the FCA”). At directions on 9 October 2017, an order was made that the respondent’s applications for costs were to be set down for hearing on a date to be administratively advised to the parties. On that date, the applicants’ second AICs for transfer to the FCA were also listed for directions on 15 December 2017. This was subsequently adjourned to 7 February 2018. On 22 December 2017, Justice Perram delivered judgment in Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576.
At directions on 7 February 2018 for the applicants’ second AICs for transfer to the FCA, the respondent indicated that it would be pressing its application for costs in relation to the applicants’ first AICs for transfer to the FCA. On that date, the applicants indicated that they sought to make applications for costs in relation to the respondent’s AICs for summary dismissal (as mentioned above, judgment for which was handed down on 20 January 2017). Orders were made on that date which, amongst other things, gave the applicants the opportunity to file any AIC in this regard. An AIC seeking the following relief was filed in proceedings SYG 1521 of 2015 on 9 February 2018:
“1. An order made pursuant to s 570(2) of the Fair Work Act 2009 (Cth) and r 21.02 of the Federal Circuit Court of Australia Rules 2001 (Cth) for the Applicant’s costs in responding to the Respondent’s application in a case, filed on 18 December 2015 and determined on 20 January 2017.”
I note that a similar AIC was not filed in proceedings SYG 1522 of 2015. However, in context, both Mr Quirk and Mr Miller sought similar orders (transfer to the FCA and separately, costs in relation to the respondent’s AICs for summary dismissal). Further, the reference in the relief sought to the date of filing as “18 December 2015” should be a reference to “17 December 2015”.
The respondent filed written submissions in relation to its application for costs on 16 February 2018 (“the respondent’s written submissions of 16 February 2017”) and 9 March 2018 (“the respondent’s written submissions of 9 March 2018”). The applicants filed written submissions in reply on 2 March 2018 (“the applicants’ written submissions of 2 March 2018”).
The applicants filed written submissions in relation to their AICs for costs on 20 February 2018, 9 March 2018 (“the applicants’ written submissions of 9 March 2018”) and 3 April 2018 (“the applicants’ written submissions of 3 April 2018”). I note that the written submissions filed by the applicants on 20 February 2018 were incomplete, the complete copy being filed on 9 March 2018. The respondent filed written submissions in reply on 22 March 2018 (“the respondent’s written submissions of 22 March 2018”).
On 7 February 2018, it was also decided that both costs applications would be decided “on the papers”, unless I needed further submissions from the parties. That was unnecessary, and I proceeded to consider the applications for costs “on the papers”. On 23 March 2018, the respondent’s solicitors sent an email to my chambers seeking leave to read the affidavit of Timothy John McCauley, solicitor, made on 23 March 2018, in support of the respondent’s written submissions of 22 March 2018. The applicants indicated their objection to this affidavit, and the matter was then listed for further directions on 18 April 2018.
At directions on 18 April 2018, the parties appeared and were represented by counsel. The respondent reasserted that it relied on the affidavit in support of its written submissions filed on 22 March 2018 (see further below). This was explained in that the respondent relied on the applicants’ delay in making their AICs for costs, and that they were essentially made on a “tit for tat” basis following the respondent’s success in opposing the applicants’ first AICs for transfer to the FCA.
The applicants submitted that any delay in making an application for costs is not relevant to s.570 of the FWA, and further, on the basis of r.21.02 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), a costs application can be made at any stage of the proceedings. Following oral submissions, I indicated to the parties that I would decide the question of the admissibility of the affidavit at the same time as deciding the AICs for costs.
Consideration
A.The Exercise of the Court’s Discretion
The Court’s discretion to award costs derives from s.79 of the FederalCircuit Court of Australia Act 1999 (Cth) (“FCCA Act”). Generally, the power to award costs is unfettered, subject to the need for the discretion to award costs to be exercised judicially (Ruddock and Others v Vadarlis and Others (No.2)[2001] FCA 1865; (2001) 115 FCR 229 at [9] per Black CJ and French J (as he then was) and Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 at [66] per McHugh J and see also Noble v Baldwin & Anor (No.2)[2011] FMCA 700 at [9], Lee v Proctor and Gamble Australia Pty Ltd & Anor (No.2) [2012] FMCA 1075 and SZRTP v Minister for Immigration & Anor (No.2)[2013] FCCA 711; (2013) 277 FLR 469).
However, in the current cases (noting that there are two AICs for costs in each), the exercise of the discretion is confined, or qualified, by s.570 of the FWA. That section is in the following terms:
“Section 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.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 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.”
While the Court’s discretion remains, any costs order can only be made if the Court is satisfied as to any of the matters set out at s.570(2) of the FWA (or in accordance with ss.569 or 569A of the FWA but these sections are not relevant to the current case). In this context, I also note that the discretion to award costs must be exercised cautiously (see also Saxena v PPF Asset Management Ltd[2011] FCA 395 at [6] per Bromberg J).
Also of assistance in this case is Ashby v Slipper (No.2) [2014] FCAFC 67; (2014) 314 ALR 84 at [35] as follows:
“Section 570 of the FWA ‘reflects a policy of protecting a party instituting proceedings from liability for costs’ and ‘costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order’: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60]. Whilst Kangan was decided before the introduction of the FWA and concerns the former s 347(1) of the Workplace Relations Act 1996 (Cth) (WRA), s 347(1) of the WRA was similar in terms to s 570(2)(a) of the FWA. Moreover ‘[a] party cannot be said to have commenced a proceeding ‘without reasonable cause’...simply because his argument proves unsuccessful’, and costs will not be awarded against a party whose unsuccessful argument was ‘not unworthy of consideration’: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473. Only a case that has ‘no real prospects of success, or was doomed to failure’ will meet the tests set out in s 570(2)(a) of the FWA: Kangan at [60]. Each of these matters is a question of fact. They were neither entertained nor determined by the Court.”
Given the nature of the submissions from both parties it is important to note that each of s.570(2)(a), (b) and (c) of the FWA are disjunctive. That is, if the Court is satisfied of any one of these, then that would form the basis for the exercise of the discretion contemplated by s.570(1) of the FWA.
B. Costs in the Proceeding
The respondent presses its application for costs in relation to the applicants’ first AICs for transfer to the FCA with reference to s.570(2)(a) or (b) of the FWA. That is, the respondent contends that the applicants instituted the proceedings vexatiously, without reasonable cause, or the applicants’ unreasonable acts, or omissions, caused the respondent to incur costs.
The first issue for consideration is whether the word “proceedings” as it appears at s.570(2)(a) (and s.570(1)) of the FWA, is confined to the substantive proceedings, or whether it encompasses an interlocutory matter such as the applicants’ first AICs for transfer to the FCA, in respect of which the respondent seeks costs.
The applicants argue that the term “proceedings” as it appears at s.570(1) and s.570(2)(a) of the FWA (which includes “instituted the proceedings”) applies to the substantive proceedings, and not to interlocutory applications in such proceedings. That is, it does not apply to the proceedings (the applicants’ first AICs for transfer to the FCA) in respect of which the respondent now seeks costs.
In support of this proposition the applicants referred to Grout v Gunnedah Shire Council (No.3) [1995] IRCA 117; (1995) 129 ALR 372 (“Grout”) (see the applicants’ written submissions of 2 March 2018 at [12]).
It is not clear how this case supports the applicants’ contention. I respectfully understood the Court in Grout to say the following.
One, that in context, historically the term “proceeding” had a narrow or technical meaning, being the invocation of the jurisdiction of the Court (other than by writ) (Herbert Berry Associates Ltd v Inland Revenue Commissioners (1977) 1 WLR 1437 at 1446 per Russell LJ, Forrest v Kelly [1991] FCA 754; (1991) 105 ALR 397 at 408 per O’Loughlin J, Re Healey: Re Inquiry into Election in Australian Workers’ Union SA Branch [1992] FCA 6; (1992) 40 IR 110 at 118 per O’Loughlin J and Blake v Norris (1990) 20 NSWLR 300 at 306).
Two, these authorities were of “limited assistance” in construing s.347 of the now repealed Industrial Relations Act 1988 (Cth) (“the IR Act”) (see further below).
Three, the meaning of the word “proceeding” is subject to the relevant context. It may, in some cases, mean “an action” (the historical meaning) or “a step in an action”. Therefore, its meaning in each case is to be derived from the statutory context, and the objects of that statute.
The applicants acknowledged that there is some authority that the term “proceeding” includes each of the interlocutory steps taken in a proceeding (Thompson v Hodder [1989] FCA 493; (1989) 21 FCR 467, Foxcroft v Ink Group Pty Ltd [1994] IRCA 78; (1994) 125 ALR 677, Andrews v Uniting Church [1995] IRCA 478; (1995) 60 IR 437 at [438] – [443] and Shackley v Australian Croatian Club Ltd [1996] IRCA 641; (1996) 141 ALR 736 and see [13] of the applicants’ written submissions of 2 March 2018).
These authorities, when read with Grout, should be sufficient to find that the applicants’ contention is not made out.
However, the applicants sought to address what was said in Grout by submitting that Grout was concerned with the meaning of “proceeding” in the context of s.347 of the IR Act, and that that section is different to s.570 of the FWA.
However, even on that basis, what was said in Grout is still of assistance in the current case. That is because even though in Grout the Court was concerned with s.347 of the IR Act, the Court’s approach derived from the proposition that the meaning of the term “proceedings”, is to be derived from the relevant statutory context.
While the relevant statutory context in Grout was s.347 of the IR Act, it is the statutory context of, and the objects of, the FWA from which meaning is to be derived for current purposes.
In that light, apart from case law on the now superseded s.347 of the IR Act, there is nothing in the FWA to assist the current dispute. The FWA does not define “proceeding” or “proceedings”.
However, a proceeding, and its institution, do not exist in a vacuum. As was made clear in Grout, the word “proceeding”, is the “invocation of the jurisdiction of a Court by a process other than a writ” (Grout at 383).
In my view, that directs attention to the statutory context of how proceedings are instituted in this Court. The meaning of the word “proceeding(s)”, relevant to the current consideration, was considered by Judge Manousaridis in Amponsem v Laundy (Exhibition) Pty Ltd (No.2) [2016] FCCA 91; (2016) 305 FLR 210.
His Honour reviewed relevant authorities as to the meaning of “proceeding(s)” (Amponsem at [7] – [21]). His Honour found (with reference to r.4.01 and r.4.08 of the FCC Rules) (at [13] – [14]):
“[13] First, at the very least, a proceeding includes the means or vehicle by which a party invokes, or purports to invoke the jurisdiction of a court; and the means by which a court’s jurisdiction is invoked, or is purportedly invoked, is by the initiating party urging the court in some way to take some action, usually against another person. In short, an applicant invokes or purports to invoke the jurisdiction of a court by communicating a claim to that court for an order or orders, usually against another person.
[14] Second, the rules, forms, and practice of the court in question regulate the means by which that court may be urged to take action. The principal vehicle by which this Court may be urged to take some action is by the filing of an application in the approved form. But there are other available means. One is the filing of a cross-claim. Another is the filing of an application in a case in relation to a procedural or interim claim.”
[Emphasis added.]
I cannot say that his Honour’s analysis was wrong. To the contrary, I respectfully agree with it.
C. The Respondent’s Application for Costs
In the current case, the applicants instituted “proceedings” in this Court by the filing of their substantive applications which sought to invoke the fair work jurisdiction of the Court.
Sometime later, they sought to institute proceedings by way of an AIC to transfer the substantive proceedings to the FCA. Notwithstanding that those proceedings were ancillary or procedural, in character, they involved different claims. I agree with the respondent that its applications for costs can be considered under s.570(2)(a) of the FWA (and for that matter s.570(2)(b) of the FWA).
The respondent says that costs orders should be made in its favour because the applicants commenced the proceedings (the applicants’ first AICs for transfer to the FCA) without reasonable cause.
The applicants’ first AICs for transfer to the FCA sought one order each. That is, that the substantive proceedings be transferred to the FCA.
I agree with the applicants that the relevant question in relation to the meaning of “without reasonable cause” (as it appears in s.570(2)(a) of the FWA), is whether their AICs had reasonable prospects of success at the time the proceedings (that is, the AICs for transfer to the FCA) were instituted. It is not whether the AIC failed (R v Moore; Ex Parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470 and see [28] of the applicants’ written submissions of 2 March 2018).
I also note the applicants’ submission that the test to be applied is that the application must be “so obviously untenable that it cannot possibly succeed” or is “manifestly groundless”, or “discloses a case which the Court is satisfied cannot succeed” ([28] of the applicants’ submissions of 2 March 2018).
The applicants also submit that the grant of the order they sought in their first AICs for transfer to the FCA, involved an exercise of the Court’s discretion, where a number of factors are weighed and evaluated against the object and scope of the FCC Rules and the interests of justice ([29] of the applicants’ written submissions of 2 March 2018). I agree.
In their written submissions, the applicants set out nine factors on which they relied in support of their first AICs for transfer to the FCA ([7] of the applicants’ submissions of 2 March 2018).
However, what the applicants’ submissions have failed to comprehend, is that simply putting forward these factors now, of themselves, does not give weight to what they sought in their AICs, such as to render their falling outside the description of “without reasonable cause”. As their written submissions otherwise acknowledged, the factors are to be weighed and evaluated.
Notwithstanding the weighing and evaluation of these factors, what emerges in the current case, as at the time of the institution of the proceedings in question (the applicants’ first AICs for transfer to the FCA), is the following.
At the time of the making of their AICs, the applicants had each “amended” their case a set out in the substantive application and “Form 2s”, by filing Statements of Claim (“SOCs”). While the SOCs arose out of earlier interlocutory proceedings (the respondent’s unsuccessful AICs to summarily dismiss the substantive proceedings), it was the first occasion that the applicants raised claims arising from of the Fair Work (Registered Organisations) Act 2009 (Cth) (“the FWRO Act”).
The sole subject of the AICs, that is, the reason for the institution of these “proceedings”, was to achieve one purpose. That is, the transfer of the substantive proceedings to the FCA, so that the matters in the SOCs could be heard.
As at the time of instituting their first AICs for transfer to the FCA, the applicants (who had the benefit of counsel and a solicitor), would reasonably have known that this Court had no jurisdiction to hear what had become the core of their substantive applications as a result of their SOCs.
What remained unsatisfactorily explained as at the time of the institution of the applicants’ first AICs for transfer to the FCA was why, given that knowledge, the applicants did not seek to institute proceedings in the FCA, and then seek to transfer to the FCA what remained of their respective substantive proceedings in this Court.
It is that factor, even when weighed and evaluated with all the other factors, that makes the institution of the applicants’ first AICs for transfer to the FCA, acts which can be described as being “without reasonable cause” at the relevant time (s.570(2)(a) of the FWA).
The only explanation given at the hearing of the applicants’ first AICs for transfer to the FCA, with reference to the time of the institution of the proceeding (to transfer to the FCA), was that instituting the proceedings, in the circumstances, was to avoid additional expense.
How this was the case, given that that election led to a hearing of their AICs (with counsel), was never satisfactorily explained by the applicants.
The applicants’ submissions now seek to repeat other factors put forward in support of the applicants’ first AICs for transfer to the FCA. These included that the applicants’ claims involved matters not authoritatively determined by the FCA or High Court of Australia, and involved “novel” and complex arguments, or matters of general importance. Further, that it was more convenient, and of less cost to the parties, for the matters to be heard in a single forum (see [6] – [7] of the applicants’ written submissions of 2 March 2018).
Even if all of these factors weighed in favour of the applicants, they do not outweigh one single and important factor. That is that this Court has no jurisdiction to hear matters arising under the FWRO Act. Further, no proceedings had been instituted in this regard in the FCA to which the remaining, and it must be said lessor, part of their case could attach.
Importantly, the applicants also submitted that the FCA had jurisdiction (for the FWRO Act matters), and that this Court did not. If that was the case (which undoubtedly it was), then the other factors raised by the applicants become strong arguments for initiating proceedings in the FCA, whereas instituting the AICs in this Court only served, in the circumstances (given that this Court had no jurisdiction regarding the FWRO Act matters), to increase costs to the parties. These are the very costs that the respondent says it should now recover.
The applicants also submit that following any transfer of the proceedings to the FCA, they intended to raise additional matters ([10] of the applicants’ written submissions of 2 March 2018). Again, why the applicants did not just initiate “new” proceedings in the FCA at the time of instituting proceedings (the AICs) in this Court, has not been the subject of any reasonable explanation.
It is also of note that the parties were previously before the FCA (Quirk and Miller; In the matter of an urgent application before the start of a proceeding [2014] FCA 1254 (“Quirk and Miller; In the matter of an urgent application”)). As I found in Quirk and Miller (No 2)
(at [56] – [57]):
“[56] Nonetheless, I respectfully understand the Federal Court to have given the applicants the “blueprint” for how to go about properly making the application to the Federal Court, which they have now made to this Court (which lacks jurisdiction), instead of seeking to initiate proceedings in the Federal Court (Quirk and Miller: In the matter of an urgent application at [8]).
[57] The applicants would have been on notice since that time, that is, 18 November 2014, of the “appropriate” course to pursue in relation to the FWRO Act. It is not in the interests of the administration of justice to transfer the proceedings in circumstances where, with knowledge of the appropriate course, if the applicants did wish to pursue a matter under the FWRO Act, they instead elected to pursue a different course.”
That knowledge existed at the time of the making of the applicants’ first AICs for transfer to the FCA. For whatever reason, the applicants made a forensic or strategic decision, not to pursue the FWRO Act matters in the FCA, but instead to institute substantive proceedings in this Court which (properly) made no reference to the FWRO Act.
However, having made that election on 4 June 2015, the applicants sought, nearly two years later (on 12 May 2017), to pursue the FWRO Act matters (by filing their SOCs that included the FWRO Act matters). In these circumstances, that they did so in this Court, and not the FCA, is also an unreasonable act.
The Court is satisfied in light of the above that, in the circumstances, the applicants instituted the applicants’ first AICs for transfer to the FCA “without reasonable cause” (s.570(2)(a) of the FWA). That is one basis on which to make the orders sought by the respondent.
The respondent also asserts that the applicants acted “vexatiously” in instituting their AICs (s.570(2)(a) of the FWA). The respondent’s argument is that the applicants’ first AICs for transfer to the FCA were untenable, and manifestly groundless (see [16] – [19] of the respondent’s written submissions of 16 February 2018).
There is no dispute between the parties that the matter of vexatiousness (under s.570(2)(a) of the FWA) is “separate” to “without reasonable cause” (Nilsen v Loyal Orange Trust [1997] IRCA 267; (1997) 76 IR 180 (“Loyal Orange Trust”) endorsed by the Full Bench of the Fair Work Commission in Holland v Nude Pty Ltd t/a Nude Delicafe [2012] FWAFB 6508 (“Nude”), Attorney-General v Wentworth (1988) 14 NSWLR 481 (“Wentworth”) at 491 and Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 and see [16] – [19] of the respondent’s written submissions of 16 February 2018 and [20] – [26] of the applicants’ written submissions of 2 March 2018).
Further, there was also no dispute between the parties that a proceeding would be “instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party or to gain a collateral advantage” (Loyal Orange Trust at 181 and Nude at [7]).
Nor did there appear to be any dispute that (see [21] of the applicants’ written submissions of 2 March 2018) in Church v Eastern Health [2014] FWCFB 810 (at [41]), the Full Bench of the Fair Work Commission considered that:
“… the question of whether an application was made vexatiously turns on the motive of the applicant in making the application. Motive can be inferred from, among other things, the surrounding circumstances, the applicant’s conduct and the merits of the application itself.”
[Footnotes omitted.]
As is clear from the authorities to which the parties have referred, the focus is, first, on the motive of the party instituting the proceedings.
On the material before the Court, the only relevant matters as to the motive of the applicants, are the matters of claimed efficiency, and the saving of FCA filing fees.
There is a difference, in my view, between drawing a reasonable inference, and mere speculation. It is to be remembered that the term “vexatious” is different to “without reasonable cause”. As the applicants, correctly in my view submitted, the term “vexatious” is to be narrowly construed (Loyal Orange Trust and see [20] of the applicants’ written submissions of 2 March 2018).
In that light, I cannot see that the respondent has shown that the applicants’ predominant purpose in instituting the first AICs for transfer to the FCA was to “harass or embarrass” the respondent, or even to “gain a collateral advantage” (Loyal Orange Trust at 181).
The respondent submits that the only evidence available, as to the admitted motive of the applicants in instituting the proceedings, was to avoid paying the additional FCA filing fees.
I am unable to find, on that basis, that the applicants instituted the AICs to cause embarrassment, or harass, the respondent.
It may equally be a matter of speculation (to that posited by the respondent now), that the making of the applicants’ first AICs for transfer to FCA instead of instituting the substantive proceedings in that Court, was simply misconceived. That does not mean that the applicants acted vexatiously, as that term is understood in the context of the FWA.
In its written submissions of 16 February 2018 (at [17]), the respondent referred to Loyal Orange Trust at 181 (which in turn referred to Wentworth). The relevant test for “vexatious” (in s.570(2)(a) of the FWA) is also said to be if the proceedings were brought for a collateral purpose, and not for the purpose of having the Court adjudicate on the issue to which they give rise.
The issue to which the applicants’ first AICs for transfer to the FCA gave rise was the transfer of the whole of the substantive proceedings (including at the time that the AICs were instituted, the FWRO Act matters), to the FCA. That is what the Court “adjudicated” on.
The test for “vexatious” also refers to proceedings irrespective of motive that are “so obviously untenable or manifestly groundless as to be utterly hopeless” (Wentworth at 491).
It is to be remembered that the institution of the applicants’ first AICs for transfer to the FCA was not just to transfer the FWRO Act matters, but the entire proceedings to the FCA. In that light, it cannot be said that the AICs were so obviously untenable or manifestly groundless, even if the primary objective was to have the FWRO Act matters heard by the only Court that could hear them (the FCA).
In all therefore, I am unable to be satisfied that the applicants instituted their AICs vexatiously.
The respondent also submits that the institution of the applicants’ first AICs for transfer to the FCA constituted, by each of the applicants, an act, or omission which caused them to incur costs (within the meaning of s.570(2)(b) of the FWA).
The respondent refers to Paras v Public Service Body Head of the Department of Infrastructure (No.3) [2006] FCA 745; (2006) 152 FCR 534 at [16] as follows (and see [20] of the respondent’s written submissions of 16 February 2018):
“On these authorities, the applicant does not need to rely upon s 824(2) as she contends that the notice of motion was brought vexatiously and without reasonable cause. However, I see no reason why s 824(2) should be given the narrow construction contended for by the respondents. As with s 824(1), the references in subs (2) to a ‘proceeding’ encompass a step in the proceeding, such as the institution and hearing of an interlocutory application. However, s 824(2) goes further than s 824(1). The proviso to s 824(1) applies if the entire proceeding, or a step in the proceeding, has been instituted vexatiously or without reasonable cause. Section 824(2) is not confined to costs associated with the institution of the proceedings or a step in the proceedings; it extends more broadly to costs incurred as a result of any unreasonable act or omission. On a plain and natural meaning of s 824(2), there is no reason why the reference to an unreasonable act or omission that has caused another party to incur costs in connection with the proceeding should not extend to unreasonable acts or omissions in connection with an interlocutory application. And, as the Explanatory Memorandum suggests, the power conferred by s 824(2) can be exercised irrespective of the outcome of the particular application in question, and of the proceedings as a whole.”
Specifically, the respondent argues that the applicants’ first AICs for transfer to the FCA were “misconceived”, “incompetent”, or “unsupportable” in that the applicants had made a “concession” in relation to the exclusive jurisdiction of the FCA (in their submissions filed on 25 May 2017 in support of the first AICs for transfer to the FCA), and therefore the institution of the proceedings, in the circumstances, was unjustified given the costs incurred by the respondent ([21] of the respondent’s written submissions of 16 February 2018).
The applicants submit that the first AICs to transfer the proceedings to the FCA, were made in circumstances where the FWRO Act matters could be heard in the FCA more efficiently as to time and costs.
In my view, of far greater efficiency and less cost, would have been, instead of seeking to amend their case before this Court by “adding” the FWRO Act matters, and then seeking to transfer the entire substantive proceedings to the FCA, was to have instituted proceedings in the FCA at that time, and in line with what the applicants knew to be the case in 2014 (see Quirk and Miller; In the matter of an urgent application).
The applicants now submit as follows ([35] of the applicants’ written submissions of 2 March 2018):
“As it turns out, the proceedings will be transferred to the Federal Court and this occurred after Perram J expressed the view in Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576 at [38] that:
[F]rom my perspective, it looks like the case should be heard in one court and that there is much to be said for the view that it should be this Court that hears it.”
The applicants knew at the time of the making of their first AICs to transfer to the FCA, that only the FCA had the relevant jurisdiction. Justice Perram’s statement on which they now rely is, in my respectful view, a strong argument, which can respectfully be applied, as at the time of instituting the AICs. That is, in the context of efficiency, and costs, it would have been preferable to have simply instituted proceedings in the FCA.
I do not agree with the applicants that an order for costs in the circumstances of this case would discourage parties from pursuing litigation under the FWA (see [36] of the applicants’ written submissions of 2 March 2018).
In the circumstances, a costs order in this case would encourage parties to pursue matters under the FWA in whatever Court is appropriate, and importantly, to go directly to the FCA in relation to claims under the FWRO Act.
For the reasons set out above, costs should be awarded to the respondent in respect of the applicants’ first AICs for transfer to the FCA (of 25 May 2017 in SYG 1521 of 2015 and 16 June 2017 in SYG 1522 of 2015).
The respondent also asked that costs be awarded on an indemnity basis. It is important to note that in the initial application for costs the respondent asked for an (see [2]d. of the respondent’s written submissions filed on 14 June 2017 in opposing the applicants’ first AICs for transfer to the FCA):
“Order that the applicants pay the costs of the respondent of the present Application in a Case pursuant to s 570(2)(a) and/or (b) of the Fair Work Act 2009 (Cth)…”
The respondent also raised the issue of indemnity costs in its written submissions of 16 February 2018 (at [23]) as follows :
“Indemnity costs should be ordered, in particular because of what this Court said in Quirk (No. 2) at [74] and [78] in relation to costs.”
The respondent also raised the issue of indemnity costs in its written submissions of 9 March 2018 (at [54]) as follows:
“Indemnity costs
The respondent should be compensated as the successful party having regard to all of the circumstances (Shea v Energy Australia Services Pty Ltd (No.2) [2015] FCAFC 14 at [10] – [11]).”
The applicants submit that once a criterion in s.570(2) of the FWA has been satisfied, the power to order costs is discretionary. I agree with the applicants that the discretion should not be exercised in such a fashion as to impose a penalty, or punishment, on the “losing” party (see [37] of the applicants’ written submissions of 2 March 2018). The objective of awarding costs should be to provide an appropriate means of compensating the successful party having regard to all the circumstances (Shea v Energy Australia Services Pty Ltd (No.2) [2015] FCAFC 14).
It is the case that indemnity costs have been awarded in some circumstances where a party pursued a cause of action with no real prospect of success (Re Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors [1988] FCA 202; (1998) 81 ALR 397).
However, it is to be remembered that the basis of awarding costs to the respondent in the current instance is that the applicants instituted their first AICs for transfer to the FCA in circumstances where there was no reasonable cause, or it was an unreasonable act to do so.
The concepts of “no real prospects of success”, “without reasonable cause”, and an “unreasonable act”, while they may in some circumstances overlap to varying degrees, are not synonymous.
In the current case, the respondent has not satisfactorily explained why its costs should be paid on an indemnity basis.
This is not a case where the applicants have made deliberately false allegations of fact (Degmam Pty Ltd (In liq) v Wright (No.2) [1983] 2 NSWLR 354), or have unreasonably rejected an offer of compromise not bettered in litigation (Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No.2) [2008] NSWCA 85 and Multicon Engineering P/L v Federal Airports Corporation [1996] NSWSC 212). Nor are costs to be awarded by way of punishment of the unsuccessful party (Latoudis v Casey [1990] HCA 59; (1999) 170 CLR 534), they may be awarded where there has been some “delinquency” on the part of the unsuccessful party (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72). No such factor is evident in the current circumstances.
I agree with the applicants that in the circumstances as presented, and on the arguments made, I cannot be satisfied that there is some special or unusual feature to justify departing from what would be the “ordinary” course, once s.570(2) of the FWA is satisfied (Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879; (2007) 162 FCR 392 (“Pilots Association”) at [39]).
The “ordinary course” being that the applicants pay the respondents costs of the AICs reasonably incurred on a party/party basis.
D. The Applicants’ Application for Costs
On 9 February 2018, the applicants each, in essence, made AICs seeking an order pursuant s.570(2) of the FWA for costs in relation to their response to the respondent’s AICs made on 17 December 2015 (see [6] above), and determined on 20 January 2017.
The applicants’ position is that there was no reasonable basis for the respondent’s AICs, and therefore the institution of these proceedings was either an “unreasonable act” (s.570(2)(b) of the FWA), or “without reasonable cause” (s.570(2)(a) of the FWA) (and see [3] of the applicants’ written submissions of 9 March 2018).
The respondent’s AICs (filed on 17 December 2015) sought summary dismissal of each of the substantive applications made by the applicants on the basis of r.13.07 and 13.10(a) of the FCC Rules (see generally Quirk and Miller). The Court handed down judgment on 20 January 2017 in favour of the applicants (Mr Quirk and Mr Miller).
The first point in the dispute between the parties is what the respondent has described as the “limited jurisdiction” of the Court to hear the “present application for costs” ([16] of the respondent’s written submissions of 22 March 2018). In context, this is a reference to the applicants’ written submissions of 9 March 2018 at [4] – [7], which asserted that this Court has jurisdiction to hear an application for costs pursuant to r.21.02 of the FCC Rules. The respondent asserts that it “disputes” that r.21.02 of the FCC Rules applies.
As noted above, this Court’s jurisdiction to order costs generally derives from s.79 of the FCCA Act. However, as is made clear at s.79(1) of the FCCA Act, that section does not apply in relation to a matter arising under the FWA. The respondent’s AICs for summary dismissal in respect of which the applicants seek costs are such matters.
Therefore, the reference to the FCC Rules in s.79(3) of the FCCA Act means that the FCC Rules do not apply to the current consideration.
What does apply is the exercise of this Court’s discretion as it arises from s.570 of the FWA. There is nothing in s.570 of the FWA, or elsewhere in the FWA, that limits the time within which the applicants could make their AICs for costs in the manner “constrained” or “limited” by r.21.02 of the FCC Rules.
The applicants submit that for current purposes, whether the respondent engaged in “an unreasonable act or omission” (s.570(2)(b) of the FWA), will depend upon the particular circumstances of the case (Pilots Association, McAleer v University of Western Australia (No.2) [2007] FCA 247; (2007) 1 FCR 641 and Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347).
I do not understand the respondent to dispute that proposition. The respondent’s position is that no unreasonable act, or omission, occurred in relation to instituting the AICs for summary dismissal.
The applicants rely on the following propositions as derived from the relevant authorities ([9] - [11] of the applicants’ written submissions of 9 March 2018):
“[9] The fact that an application fails does not mean that it was commenced without reasonable cause[1]. Whether a proceeding has been commenced without reasonable cause is a question which is relevantly established as a matter of objective fact and need not only occur in ‘exceptional cases’[2].
[10] One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the party at the time of instituting the proceeding, there was no substantial prospect of success. Where it appears that, on the party’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[3].
[11] In Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No.2),[4] the Court adopted a test similar to that used for a strike out application, stating the view that that expression ‘without reasonable cause’ is similar to the test of ‘so obviously untenable that it cannot possibly succeed’.
[Footnotes renumbered.]
[1] R v Moore; Ex parte Federated Miscellaneous Workers Union of Aust [1978] HCA 51; (1978) 140 CLR 470 at 473.
[2] Spotless Services Australia Ltd v Marsh [2004] FCAFC 155 at [13].
[3] Kanan v Australian Postal v Telecommunications Union [1992] FCA 366; (1992) 43 IR 257 at 264-5.
[4] [2011] FCA 728 at [30].
The applicants’ argument, said to arise from the particular circumstances of this case, can be summarised as follows.
The respondent sought orders by way of its AICs on 17 December 2015, and made under s.17A of the FCCA Act, that the applicants’ substantive applications in whole, or in part, be dismissed.
Both the respondent’s AICs (in respect of each of the applicants) were dismissed by the Court on 20 January 2017.
The applicants argue that the respondent’s institution of the proceedings (the AICs for summary dismissal), was an “unreasonable act” or a “proceeding brought without a reasonable basis” ([23] of the applicants’ written submissions of 9 March 2018). The arguments for this are as follows.
At the time of instituting the proceedings, the respondent was required, in prosecuting the proceedings, to show that the applicants’ substantive proceedings had “no reasonable prospect of success” (with reference to Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 and see [14] – [15] of the applicants’ written submissions of 9 March 2018).
In this light, at the time of instituting the proceedings the respondent would have been aware that the applicants’ substantive applications did have reasonable prospects of success. The applicants argue that this was “confirmed” by the Court’s judgment.
The applicants submit that at the time of instituting its proceedings, the respondent would have known that the test (in relation to the AICs) was not whether the claims were hopeless, or bound to fail. Rather, whether there were any real issues of fact or law to be decided (Metalsistem Australia Storage and Display Solutions Pty Ltd v Kirk [2017] FCA 1259, Mogilevsky v Leroy (Trustee) [2017] FCAFC 52 and Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955).
The Court understood the respondent to explain its case, and in context the reason for instituting the proceedings, as being that there was no arguable case that the term “office” (as it related to the applicants’ circumstances) was not co-extensive with their employment (see Quirk and Miller at [17] – [24]). The respondent relied on Mylan v Health Services Union NSW [2013] FCA 190 (“Mylan”) in support of its argument.
The applicants now argue, that the Court found, that given the state of the “untested” evidence, as at the time of the institution of the proceedings, and as at the time of the consideration of the AICs, it could not be said the applicants’ cases were without merit.
I understood the applicants’ argument to be that the respondent claimed that the AICs were brought because there was no arguable case. However, this was precipitous in the circumstances. On the state of the evidence (as it was at the relevant times), the applicants’ cases, and circumstances, were plainly distinguishable from the circumstances in Mylan. Critically, the argument is that this would have been known to the respondent at the time of instituting the AICs for summary dismissal.
Therefore, the applicants’ submit that the respondent’s “act” in seeking summary dismissal at that time was an “unreasonable act”, or brought without a reasonable basis, and therefore applicants should get their costs pursuant to s.570(2) of the FWA.
The respondent raises two arguments in response. First, that the respondent did derive some measure of success from the AICs
([5] – [7] of the respondent’s written submissions of 22 March 2018). This was because the applicants did not ultimately press (in context as a result the AICs), the allegation of a contravention of s.352 of the FWA. Further, that other parts of the applicants’ case (with reference to [9](b) of the “Form 2” claim forms filed on 21 July 2015) were also abandoned. The respondent submits that it was put to the expense of the AICs (and other expenses) to achieve this outcome.
Second, the respondent was “significantly or substantially” successful because, in essence, the Court also ordered the applicants to provide SOCs that addressed various matters raised in the respondent’s submissions ([8] – [14] of the respondent’s written submissions of 22 March 2018).
For current purposes, the relevant time is the institution of the proceedings, that is, the respondent’s AICs to summarily dismiss the substantive proceedings, made on 17 December 2015. It is with that focus in mind, that the questions of whether the AICs were made without reasonable cause, or were unreasonable acts, need to be considered.
In that context, what ultimately was found by the Court, or what occurred during the hearing of the AICs, is relevant only to answering those questions with that temporal focus.
As at the time of the institution of the proceedings, and on the state of the material filed in Court as at that time, the fact that the applicants subsequently decided not to press certain parts of their substantive applications, does not necessarily relate to the merits of the case as at the relevant time.
Ultimately, the respondent sought dismissal of the proceedings on the basis that they did not have reasonable prospects of success. At the relevant time, this was not a reasonable assessment given what had been set out in the applications, the “Form 2s”, and other documents filed in the proceedings.
Even if the respondent regarded some of the aspects of the applicants’ claims as not having any reasonable prospects of success, and even if this could be said to be a reasonable view, that does not render the institution of the AICs, which sought, in part, summary dismissal of the entire proceedings, as a reasonable act. It was, in the circumstances, an unreasonable act. The institution of the proceedings in that sense was done without reasonable cause. It was always open to the respondent to have sought orders compelling the applicants to “explain” their case without seeking summary dismissal. This was subsequently achieved with the filing of their SOCs.
As set out above, the respondent also submitted that it achieved a measure of success with its AICs, given that the Court also ordered that the applicants file SOCs addressing certain matters raised in the respondent’s submissions filed in relation to the AICs for summary dismissal.
Again, with reference to s.570(2)(a) and (b) of the FWA, the relevant time is the time the respondent “instituted the proceedings” (with reference to s.570(2)(a) of the FWA). Further, for the purposes of s.570(2)(b) of the FWA, the unreasonable act, on which the applicants’ application for costs is now based, is the institution of those same proceedings.
The respondent also raised a number of other matters which it said militate against the exercise of the discretion in favour of the applicants. These were set out at [17] – [22] of the respondent’s written submissions of 22 March 2018.
As noted above, the factors raised by the respondent were set out at [17] – [22] of the respondent’s written submissions of 22 March 2018. These were first, the delay in the applicants making any application for costs until 9 February 2018. The respondent asserts that the applicants’ “delay” in seeking costs in relation to the respondent’s AICs of 17 December 2015, is a factor against the making of any order pursuant to s.570(2) of the FWA. The “delay” is of nearly two years.
Second, the applicants’ AICs for costs were only sought in response to the respondent’s AIC for costs. Third, the applicants have not complied with the Court’s direction at [63] of Quirk and Miller which means the applicants have not come with “clean hands”. Fourth, and as noted above, the respondent had “significant and substantial success” in Quirk and Miller. Fifth, the applicants delayed for over five months in filing any SOC after judgment was delivered in Quirk and Miller. Sixth, as the Court found in Quirk and Miller, the applicants had changed the “central focus of their cases”.
I agree with the applicants that none of the respondent’s “factors” including the “delay”, in the current circumstances, are relevant to the consideration under s.570(2) of the FWA.
The focus of s.570(2) of the FWA is, as stated above, at the time of the institution of the proceedings. In this instance, the relevant time is when the respondent filed its AICs to summarily dismiss the applicants’ substantive applications.
At that time, there were matters which were contestable both as to fact and law. At the least, there were matters which were “untested” on the known material, which made summary dismissal inappropriate.
The respondent seeks to rely on the affidavit of Timothy John McCauley (see [9] – [11] above). That affidavit attaches various correspondence between the respondent’s solicitors and the applicants’ solicitors. The date of the first correspondence is 25 January 2017. That is, after the handing down of the judgment in Quirk and Miller (20 January 2017).
Given the temporal focus of s.570(2) of the FWA, what is generally set out above, and the absence from the respondent’s submission of any satisfactory explanation as to how this correspondence is relevant to the time of the institution of the proceedings, the affidavit is not read into evidence. I agree with the applicants’ objection as to relevance.
Given the above, and in particular in light of what is set out above
at [124] – [126], the respondent has not pointed to anything that would argue that the act of instituting the proceedings was not an unreasonable act, done without reasonable cause.
It was always open to the respondent to have sought orders from the Court seeking that the applicants file and serve SOCs. That would have, in the circumstances, been a reasonable act, and not have caused the applicants to incur costs in responding to an AIC. Noting of course that the applicants had offered to do so (see Quirk and Miller at [62]).
In all, I am satisfied that the applicants’ AICs for costs should succeed on the basis that the institution of the AICs for summary dismissal by the respondent, was an unreasonable act done also without reasonable cause.
E. Conclusion on the Applications for Costs
As is made clear by s.570(1) of the FWA, the successful disposition of proceedings under the FWA does not attract consideration of costs in the “usual” way (the “usual” way being that costs follow the event). That is, there is a costs “limitation”.
The decision now to award costs to each party in relation to each of the AICs instituted by the other party was arrived at with caution. I note what was relevantly said by Justice Mortimer in Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at [64] as follows:
“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 s 570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s 570 , there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [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 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 (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 s 611 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 s 570 , 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.”
However, in the current case, both parties (each of Mr Miller and Mr Quirk on the one hand, and the respondent on the other) could have each avoided costs by acting reasonably. They did not do so in relation to the institution of each of the relevant proceedings.
Whatever else the Parliament sought to achieve with the FWA, s.570 of the FWA, in my view, makes clear that parties should still think carefully before instituting proceedings. Simply because this is “supposed” to be a “no cost jurisdiction”, this does not provide license to parties to act unreasonably in instituting proceedings when alternative acts, and conduct, were available to them to address and achieve their objectives.
I will make the appropriate orders.
F. Transfer to the Federal Court of Australia
I respectfully note what was said by Perram J in Quirk v Construction, Forestry, Mining and Energy Union [2017] FCA 1576 (at [38]):
“I should note finally that it is unsatisfactory that this case is pending in two courts. Both this Court and the Federal Circuit Court will have to decide the question of whether the Applicants were dismissed. Whichever Court decides that issue second will be bound by an issue estoppel arising from the first Court’s determination. It is notable that this Court has jurisdiction to hear the case which is pending in the Federal Circuit Court but not vice-versa. It is, of course, for the Federal Circuit Court to do as it thinks most appropriate, but from my perspective, it looks like the case should be heard in one court and that there is much to be said for the view that it should be this Court that hears it. Assuming there is any power to order costs, my present disposition is that I would make no order as both sides have had a measure of success. The parties may apply if they wish.”
[Emphasis added.]
The parties agree that in this light, the proceedings should now be transferred to the Federal Court.
It is appropriate in the circumstances to make an order pursuant to r.8.02 of the FCC Rules. The critical difference between the situation now, and as at the time of the Court’s earlier consideration of the applications to transfer the proceedings to the FCA, is that there are proceedings in the FCA to which the remainder of the applicants’ case may attach. Further, the Court now has a clear indication from the Federal Court as to the appropriate location for the hearing of the applicants’ entire case.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 8 June 2018
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