Ritson v Director, of Fair Work Building Industry Inspectorate and Anor (No.2) - [2016] FCCA 3466

FEDERAL CIRCUIT COURT OF AUSTRALIA

RITSON v DIRECTOR, OF FAIR WORK BUILDING INDUSTRY INSPECTORATE & ANOR (No.2)

[2016] FCCA 3466

Catchwords:

PRACTICE & PROCEDURE – Costs – Applicant pay First Respondent’s costs on an indemnity basis – pay Second Respondent’s costs pursuant to schedule one.

Legislation:

Fair Work Act 2009 (Cth): s.570

Federal Circuit Court Rules 2001

Cases cited:
Melbourne Stadiums Limited v Sautner [2015] FCAFC 20

Applicant:

BRENDAN RITSON

First Respondent:

DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE

Second Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

BRG 21 of 2016

Judgment of:

Judge Vasta

Hearing date:

2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Brisbane

Delivered on:

2 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr C. Massy

Solicitors for the Applicant:

HALL PAYNE LAWYERS

Counsel for the Respondents:

Ms R. Walsh

Solicitors for the Respondents:

ASHURST AUSTRALIA

ORDERS

That pursuant to s.570(2) of the Fair Work Act 2009, the Applicant pay costs on an indemnity basis to the First Respondent.
That pursuant to s.570(2) of the Fair Work Act 2009, the Applicant pay costs to the Second Respondent pursuant to Schedule 1 of Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 21 of 2016

BRENDAN RITSON

Applicant

And

DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 22 November 2016 I made orders in this matter dismissing the application made by the Applicant. I adjourned any hearing of costs to today.
The First Respondent, who was successful, has asked not only for their costs, but their costs on an indemnity basis. They submit that there are a number of matters that would justify the granting of indemnity costs.
Quite properly and quite rightly, Mr Massy for the Applicant has said that there are three questions that the Court needs to ask itself.
First is whether s.570 of the Fair Work Act 2009 (Cth) (“the FW Act”) applies.
This matter originated as an application for judicial review of a decision of Mr O’Keefe to dismiss the Applicant from the Fair Work Building Industry Inspectorate. That matter would normally proceed in a regime where costs would normally follow the event. Later on in the proceedings, and it was, I think, 3 June 2016, the Applicant added a further part of the action. This was an allegation that, in requiring the Applicant to make a response during a time where the Respondent had already allowed him sick leave, such could not really be classified as sick leave. Therefore, in not allowing the sick leave, there was a breach of the National Employment Standards and therefore the FW Act.
That matter was heard at the same time as the application for judicial review. The fact that the Applicant had given a medical certificate on the morning of 15 December, such certificate dated the day before, was certainly part of the narrative and was something that had to be considered as to whether he was afforded procedural fairness.
In that respect, part of the application for judicial review did touch upon this aspect of the FW Act. However, it was, in effect, almost an after-thought. It does seem to me that I could, in looking at this matter, sever the parts of the application to which s.570 applies. However, to my mind, it probably does not make any difference in this case. I am going to proceed as if s.570 now applies to the whole matter.
I am doing this for a practical reason, however, I have grave misgivings that s.570 does apply. Notwithstanding what has been said by the Full Federal Court in Melbourne Stadiums Limited v Sautner [2015] FCAFC 20 at paragraph 157 and following, it does seem to me that in a situation where the Fair Work aspect is a peripheral part of the main argument and is, in effect, an add-on to the original application, that such an application under the FW Act may be used by litigants to try and escape the consequences of their actions in regards to the payment of costs.
But nevertheless, I am of the view that the way in which I will approach this issue is to assume that s.570 applies to the whole of the matter.
Section 570 says that:
“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) …
(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
…”
The Applicant argues that those exceptions have not been enlivened. He says that because, even though I have found that I do not accept the evidence of the Applicant, my findings do not get to the point that the matter was obviously doomed to fail and could never have succeeded.
I do not agree with that submission for this reason: that on the basis of what the Applicant knew at the time, the application revolved around whether or not he had filled in the form honestly.
In this case, he could never have filled in that form honestly because his previous conduct was such that he knew that there were findings against him made while he was a police officer. I am referring to his own statement of claim made in an action he has taken against the insurance company to which I refer to in the judgment.
There is no way possible that the Applicant could have ever believed that he was acting honestly. There is no way possible that on that aspect alone he could have expected that this application would have been able to succeed. There was simply no answer as to how his evidence, as to what he believed had happened when he was issued with a Commissioner’s certificate could stand against what he pleaded in that insurance action.
Therefore, it has been proved to my satisfaction that the Applicant instituted the proceedings vexatiously and without reasonable cause. For that reason, s.570 of the FW Act is well and truly enlivened.
The Respondent points to the whole of the conduct of the Applicant. I have found in the judgment that the Applicant acted dishonestly in filling out that form, and he acted dishonestly in his evidence before me. For those reasons alone, I would order that he pay the costs of the Respondent.
The question is what should those costs be? Should they be indemnity costs or should they be costs in the ordinary event? One has to look at the history of the matter. It has been quite succinctly set out in the submissions of the Respondent.
The unreasonable approach to the conduct of the litigation can be seen in a number of ways, and I am taking this from the submissions of the Respondent, because I do accept these submissions.
a)The Applicant failed to engage in any discussions with the First Respondent’s solicitors in relation to the timetabling of the proceeding following the provision of a proposed timetable for the Applicant, despite repeated requests to do so.
b)He made serious and unfounded allegations to the effect that a document produced to the Applicant in the proceeding had been manipulated.
c)He sent repetitive and unnecessary correspondence to the First Respondent’s solicitors regarding the production of internet searches and a proposal to seek leave to amend his application in a case filed on 3 February 2016.
d)He sent correspondence to the First Respondent’s solicitors seeking information or confirmation of matters which had previously been provided to the Applicant.
e)He sent dozens of emails to the First Respondent’s solicitors in the first three months between filing his originating application and filing his amended originating application.
He had been put on notice from 11 March 2016 that his conduct had resulted in the First Respondent incurring unnecessary legal costs. The Applicant, as I noted in my judgment, is not a stranger to litigation. He was almost boastful when giving evidence as to how many matters he has been able to bring to what he says is a successful conclusion for him. He has quite a deal of knowledge of the law.
He has familiarity with court practice, and yet he behaved in this way, I conclude, that was meant to be as much of a nuisance to the First Respondent as possible; obviously in the hope that the First Respondent may just throw their hands in the air and say, “It’s all too hard; let’s forget about this and tell us what it was that you want.”
To their credit, the First Respondent would not give in to such demands, because after all, the First Respondent has to be accountable to the taxpayer.
For those reasons, I am of the view that it is appropriate for the First Respondent to have their costs and have them on an indemnity basis.
As regard to the Second Respondent, the Second Respondent was joined to the matter right at the beginning of the hearing in this matter. The Second Respondent did give instructions for the First Respondent to deal with the matter on the Second Respondent’s behalf.
In the end I did not even have to consider whether the Second Respondent had any cause to be here because I had already determined the Fair Work question on a basis where I did not have to consider whether there was any liability to the Second Respondent.
However, I am, for the same reasons that I have given, of the view that the joining of the Second Respondent at such a late stage was an unreasonable act by the Applicant. This is because the lateness in doing so put the Second Respondent to a particular burden of costs that it ought not to have had to endure. The lateness of such a decision, notwithstanding that it may well have been prompted by what the First Respondent had said in correspondence, was simply something that should have been thought of by the Applicant well and truly before the day or two before the hearing.
I will order that the Second Respondent have their costs but only on the Schedule basis.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 28 February 2017