Roohizadegan v TechnologyOne Limited (No 5)

Link copied
Case Copied 21 min read

FEDERAL COURT OF AUSTRALIA

Roohizadegan v TechnologyOne Limited (No 5) [2020] FCA 1734  

File number:

VID 996 of 2016
Judgment of: KERR J
Date of judgment: 30 November 2020
Catchwords: COSTS – application for costs advanced by successful Applicant in a general protections application brought under the Fair Work Act 2009 (Cth) (Fair Work Act) – whether Respondents’ unreasonable acts or omissions caused Applicant to incur costs in accordance with s 570(2)(b) of the Fair Work Act – Court satisfied that only certain aspects of the Respondents’ conduct (being their failing to accept a settlement offer or make a plausible counter-offer late in the trial, the Second Respondent’s failure to participate in a mediation, and their advancing an application for a temporary stay of the Court’s final orders without a plausible basis) were unreasonable acts or omissions – limited costs order made in Applicant’s favour
Legislation: Fair Work Act 2009 (Cth) ss 365, 570
Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333

Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641

Roohizadegan v TechnologyOne Limited [2019] FCA 1145

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407

Roohizadegan v TechnologyOne Limited (No 3) [2020] FCA 1571

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 46
Date of last submissions: 27 November 2020
Date of hearing: Determined on the papers
Counsel for the Applicant: Mr J Tracey and Mr R Minson
Solicitor for the Applicant: Harmers Workplace Lawyers
Counsel for the Respondents: Mr S Wood QC, Mr B Jellis and Mr P Jeffreys
Solicitor for the Respondents: Cooper Grace Ward

ORDERS

VID 996 of 2016
BETWEEN:

BENHAM ROOHIZADEGAN

Applicant
AND:

TECHNOLOGYONE LIMITED

First Respondent

ADRIAN DI MARCO

Second Respondent

ORDER MADE BY:

KERR J

DATE OF ORDER:

30 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The Respondents pay the Applicant’s costs of proceeding VID996/2016, as agreed or in default of agreement as assessed on a party-party basis, but limited to:

(a)Costs thrown away by reason of the Applicant having to make closing submissions on 4 November 2019;

(b)Costs incurred by the Applicant in connection with the mediation conducted by Registrar Burns on 22 May 2018;

(c)Costs incurred by the Applicant in connection with the Respondents’ application dated 19 October 2020 for a temporary stay of the Court’s orders of 2 October 2020.

2.Subject to Order 1, there otherwise be no order as to costs.

3.Subject to either party applying for a contrary order within 7 days of the publication of the Court’s reasons, there be no order as to the costs of the Applicant’s application for costs.

4.Any application for a contrary order with respect to the costs of the Applicant’s application for costs be made within 7 days of the publication of the Court’s reasons, and accompanied by written submissions of no more than 2 pages in length.

5.If an application is advanced pursuant to Order 4, the opposing party or parties have leave to file responsive…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Roohizadegan v TechnologyOne Limited (No 5) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] FCA 1734
Decision Date

CaseChat Overview and Summary

In the case of Roohizadegan v TechnologyOne Limited (No 5), the applicant, Mr Roohizadegan, sought costs advanced in a general protections application under the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia was tasked with determining whether the respondents, TechnologyOne Limited, had engaged in unreasonable acts or omissions that caused Mr Roohizadegan to incur costs, as per section 570(2)(b) of the Fair Work Act. The key legal issue before the court was whether specific actions of the respondents constituted unreasonable conduct warranting an award of costs to Mr Roohizadegan.

The court examined several aspects of the respondents' conduct, including their failure to accept a settlement offer or make a plausible counter-offer late in the trial, the second respondent's absence during a mediation session, and the advancement of an application for a temporary stay of the court's final orders without a plausible basis. The court found that only certain aspects of the respondents' conduct were unreasonable. The court deemed Mr Di Marco’s refusal to participate in the mediation as not constituting an unreasonable act, as it was within the rights of the parties to insist on resolving the dispute in court. However, the court found the respondents' failure to engage in a meaningful mediation, the absence of a plausible counter-offer, and the unfounded application for a temporary stay to be unreasonable acts.

As a result, the court made a limited costs order in favour of Mr Roohizadegan. The respondents were ordered to pay the applicant's costs of the proceeding, but these were limited to specific instances where costs were incurred due to the respondents' unreasonable conduct. These included costs thrown away by reason of the applicant having to make closing submissions, costs incurred in connection with a mediation, and costs related to the respondents' application for a temporary stay. The court also noted that there would be no order as to the costs of the applicant's application for costs, unless either party applied for a contrary order within seven days of the publication of the reasons.

Orders

Orders of the court

1. The Respondents pay the Applicant’s costs of proceeding VID996/2016, as agreed or in default of agreement as assessed on a party-party basis, but limited to:

(a) Costs thrown away by reason of the Applicant having to make closing submissions on 4 November 2019;

(b) Costs incurred by the Applicant in connection with the mediation conducted by Registrar Burns on 22 May 2018;

(c) Costs incurred by the Applicant in connection with the Respondents’ application dated 19 October 2020 for a temporary stay of the Court’s orders of 2 October 2020.

2. Subject to Order 1, there otherwise be no order as to costs.

3. Subject to either party applying for a contrary order within 7 days of the publication of the Court’s reasons, there be no order as to the costs of the Applicant’s application for costs.

4. Any application for a contrary order with respect to the costs of the Applicant’s application for costs be made within 7 days of the publication of the Court’s reasons, and accompanied by written submissions of no more than 2 pages in length.

5. If an application is advanced pursuant to Order 4, the opposing party or parties have leave to file responsive written submissions of no more than 2 pages in length within 7 days of such application being served upon it or them.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my opinion, having regard to the objective circumstances Mr Di Marco’s absence had rendered the mediation ordered by Bromberg J inutile. Whatever the lawyers might have discussed, the matter would not be settled. His absence compelled the other side to incur wasted costs. While minor in the scale of things, I am therefore satisfied that Mr Roohizadegan should have his costs thrown away on a party-party basis in respect of those events.Asserted unreasonable reliance on character evidence Fourth, the Applicant asserts that the Respondents acted unreasonably in filing certain evidence as referred to in paragraph [32] of Mr White’s affidavit. Subject to one exception, I do not accept that the filing of that evidence is open to be viewed as an unreasonable act. Too narrow a view should not, in retrospect, be placed on those filings. A central issue in these proceedings from the outset was whether Mr Roohizadegan had been dismissed by the Respondents because of a report that he had bullied his staff, as had been conveyed by Ms Gibbons to Ms Carr and later transmitted to the Executive Team including Mr Di Marco. At the point of time at which the relevant evidence was filed, the Applicant’s case was that the whole of the Executive Team (and perhaps more) had made the decision to dismiss him. In those circumstances, what others beyond Mr Di Marco who might have shared the responsibility for decision making might have believed as to Mr Roohizadegan’s alleged racism and misogyny was potentially relevant. In that regard I do not think it open for me to conclude that, without an apprehension of the way in which such material might be adduced at trial, it self-evidently was only peripherally relevant: notwithstanding that in the event much of it turned out to be so. The limited qualification I make to those observations is that there were two references in that material as might have suggested that TechnologyOne and Mr Di Marco were advancing a case that Mr Roohizadegan had been overtly anti-Semitic. At trial, Mr Roohizadegan called at least one witness in rebuttal of any such suggestion. After the Respondents had opened their case and Mr Di Marco had given evidence that he was the sole decision maker, in the course of which he had not made reference to his having had any regard to Mr Roohizadegan’s supposed anti-Semitism, I took it upon myself to draw the Respondents’ counsel’s attention to the consequences of the Respondents pressing but failing to make good such a serious allegation. Dr Spry subsequently advised that the relevant evidence would not be led. However, that does not make good the premise that the earlier filing of those witness statements was an unreasonable act. It is to record simply that that evidence had been responded to by witnesses called by Mr Roohizadegan, and that the suggestion the Respondents may still have been relying upon evidence that Mr Roohizadegan had manifested anti-Semitic views was formally abandoned by Dr Spry after Mr Di Marco’s evidence had made it clear that his decision had not been based upon that premise.Asserted unreasonable prosecution of interlocutory application for discovery

Decision

Reasons for decision

In my opinion Mr Di Marco’s refusal to so participate, whilst open to be viewed in retrospect as a missed opportunity, was not an unreasonable act for the purposes of s 570(2)(b) of the Fair Work Act. As I observed in Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641, the provisions of the Fair Work Act serve as a gateway to the entitlement of a party to access the judicial power of the Commonwealth. They provide, in a no-costs environment, an opportunity to avoid that necessity. If however a party resists settlement, any decision of the Commission that all reasonable attempts to resolve the dispute (other than by arbitration) have been and are unlikely to be successful is not thereby evidence of an unreasonable act. It is simply evidence that one or both parties have lawfully insisted that their dispute be resolved by this Court. I also repeat and rely on as equally applicable what I have said with respect to the filing of a defence, as set out at [10]-[16] above.Conclusion For the reasons I have given, I am satisfied that the Applicant’s application for costs succeeds only insofar as I have indicated above. I will make orders accordingly. Given that neither the Applicant nor the Respondents have been wholly successful and the provisions of s 570(2)(b) of the Fair Work Act I will order that, subject to either party applying for a contrary order within 7 days of the publication of these reasons, there be no order as to the costs of this application. Any application for a contrary order should be accompanied by written submissions of no more than 2 pages in length, and the opposing party or parties may file responsive submissions likewise limited in length within 7 days of service upon it or them of such an application. The Court will determine any such application on the papers.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.