Rukavina v FNQH Pathology Pty Ltd
[2025] FedCFamC2G 69
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rukavina v FNQH Pathology Pty Ltd [2025] FedCFamC2G 69
File number: ADG 188 of 2024 Judgment of: JUDGE BROWN Date of judgment: 28 January 2025 Catchwords: FAIR WORK – Application for costs – Respondent seeks indemnity costs – Whether Application was filed without reasonable cause – Consideration of conduct of the Applicant – Whether indemnity costs as sought is appropriate – Applicant to pay costs in a fixed sum Legislation: Fair Work Act 2009 (Cth) Pts 3 – 1, 6 – 4B, ss 3, 340, 341, 342, 351, 361, 539, 570, 789FD, 789FC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 5, 143, 190, 191, 192
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Div 13.1 rr 1.04, 4.04, 22.02, 22.06, 30.04
Cases cited: Australian & International Pilots Association v Qantas Airlines Limited (No 3) [2007] FCA 879
Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23
Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 248 CLR 500
Bywater v Appco Group Australia Pty Ltd [2019] FCA 799
Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306
Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923
Johnson v Monti-Haitsma Enterprises (No 2) [2014] FCA 1020
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Kanan v Australian Postal & Telecommunications Union [1992] FCA 539
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Ragata Developments Pty Ltd v Westpac Banking Corporation & Anor [1993] FCA 115
Ryan v Primesafe [2015] FCA 8
Saxena v PPF Asset Management Ltd [2011] FCA 395
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Spotless Services Australia Ltd v Deputy President March [2004] FCAFC 155
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Tomvald v Toll Transport [2017] FCA 1208
Wong v National Australia Bank [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 148 Date of hearing: 12 December 2024 Place: Adelaide Solicitor for the Applicant: Mr Irvine, Websters Lawyers Counsel for the Respondent: Dr Fallah Solicitor for the Respondent: LawBase Pty Ltd ORDERS
ADG 188 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMANTHA RUKAVINA
Applicant
AND: FNQH PATHOLOGY PTY LTD
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, the Applicant pay the Respondent’s costs fixed in the sum of FOUR THOUSAND, NINE HUNDRED AND FIFTY FIVE DOLLARS AND THIRTY SEVEN CENTS ($4,955.37).
2.All extant applications be dismissed.
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 BROWN:
INTRODUCTION
These reasons for judgment relate to an application for costs, in general protection proceedings, brought pursuant to the provisions of Fair Work Act 2009 (Cth).[1]
[1] Hereinafter referred to as “the FWA” or “the Act”.
On 17 May 2024, Samantha Rukavina[2] instituted proceedings, in this court, against FNQH Pathology Pty Ltd[3] alleging that she had been subject to adverse action by FNQH in contravention of section 340 of the Act. The adverse action was the termination of her employment, with FNQH, as a laboratory technician.
[2] Hereinafter referred to as “Ms Rukavina” or “the applicant”.
[3] Hereinafter referred to as “FNQH” or “the respondent”.
The legal provisions relating to costs in general protection proceedings are contained in section 570 of the Act. In general terms, the fair work jurisdiction of the court is to be characterised as one in which orders for costs are not routinely made. In common parlance, it is referred to as a no costs jurisdiction.
This is because the legislature has recognised that there are public policy considerations which dictate that applicants, in the industrial context, should not be deterred from bringing applications pursuant to the Act because of a fear of being subject to a costs order, if ultimately their claims are not established. As a result, the characterisation of the fair work jurisdiction as being a no cost one, has been described as an access to justice provision.
It is however subject to exceptions contained in section 570(2) which, for the purposes of these proceedings, can be summarised as follows:
·The court is satisfied the relevant proceedings were instituted vexatiously or without reasonable cause; or
·The court is satisfied that the party’s unreasonable act or omission caused the other party to incur costs.
If either proviso is satisfied, the court is granted a discretion to award costs.
In the current matter, FNQH seeks costs, on an indemnity basis, in an amount of $17,041.95. This follows the applicant’s solicitor, Mr Irvine, indicating both to my chambers and the solicitors for the respondent, approximately 35 minutes prior to the listing of FNQH’s application for the summary dismissal of Ms Rukavina’s claim, that his client no longer wished to proceed with her general protection application.
The applicant’s position is that she had a valid and arguable case under the relevant provisions of the Act but elected to withdraw her application because of personal financial constraints, which rendered her anxious about having to incur her own significant legal costs, prior to trial.
In these circumstances, notwithstanding her view about the strength of her case, she opted for safety first and withdrew it. It is her contention that she did so at a reasonably early stage in the proceedings and the respondent is being unduly aggressive and unreasonable in seeking to pursue her for costs.
On the other hand, the respondent characterises the application as being inchoate and lacking in detail. Essentially, it asserts that Ms Rukavina’s application had no reasonable prospects of being successful and its summary dismissal should be regarded as a fait accompli – the benefit of which it has been deprived.
As such, it contends that it was entitled to defend the case with rigour, particularly given it had consistently and repeatedly sought from the applicant’s legal representative particulars of how it was alleged the Act had been breached by it, which particulars were not forthcoming and it was only at the absolute death knock of its summary dismissal application that the applicant gave in to the inevitable and withdrew her case – conduct which it characterises as unreasonable and justifying an award of indemnity costs in its favour.
In these circumstances, it is the underpinning of the respondent’s case that it views the relevant application as a cynical attempt to garner some settlement from it; for an otherwise wholly unmeritorious case. The motivation for the case being based on the calculation that FNQH’s fear of being exposed to costs in defending the case, which costs would have been unlikely to have been recovered, even if such a trial resulted in the complete dismissal of the case, was likely to result in some form of offer of compromise being made. Essentially, FNQH asserts that it was subject to a form of shakedown by Ms Rukavina, which disintegrated when it made it clear that it would give no quarter in the litigation.
LEGAL PROCEEDINGS APPLICABLE TO GENERAL PROTECTION PROCEEDINGS
In order to understand the legal context in which the application for costs arises, it is necessary to set out what is entailed in a general protection application.
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the FWA contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2 if …
1
an employer against and employee
the employer:
a) dismisses the employee; or
b) injures the employee in his or her employment; or
c) alters the position of the employee to the employee’s prejudice; or
d) discriminates between the employee and other employees of the employer
Section 341(1) provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
(1)A person has a workplace right if the person:
….
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
As will be expanded upon in due course, it is the applicant’s position that she complained to management about what she characterised as unsafe and hazardous workplace conditions in the laboratory in which she worked at FNQH and she had a right protected under the Act to complain under relevant work health and safety legislation to make such a complaint. She further alleges that from her perspective, this can be the only reason for her termination and so is the operative reason for her dismissal.
The respondent does not agree, asserting that the reason for the dismissal was because Ms Rukavina declined to comply with a condition of her employment contract, which required her to undertake an on boarding process, after she had commenced her employment with it.
As a consequence of the use of the word because in section 340 there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
In a general protection claim, section 361 of the FWA is of central importance. This section places the onus of disproving the necessary causal link on the respondent, which is often described as the reverse onus. It reads as follows:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question, in a workplace context. Necessarily, a cynical employer is unlikely to telegraph the reasons for dismissal if it is for a proscribed reason to the employee in question.
The task is made more difficult in the case of decisions made in a corporate or managerial environment, or in this case where relevant decision makers have not provided evidence to discharge the onus. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices, against employees, in an industrial setting.
Considerations of this kind inform the rationale for the implementation of one of the central features of the general protection provisions, namely the creation of the reverse onus. The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which any alleged adverse action was taken. Essentially, Ms Rukavina does not have to prove what was the specific reason why her employment was terminated.
Rather, if it is established, by any applicant, that their employment is subject to a relevant workplace right, and they have also established that they have been subject to adverse action, the onus passes to the employer to provide the substantive and operative reasons for the adverse action, particularly that it was not for a reason protected by the FWA.
This is fundamentally a question of fact to be determined from all the circumstances arising in the case. Almost invariably for the reverse onus to be satisfied, it will be necessary for the relevant decision-maker to provide evidence as to why the decision to take the adverse action was made.[4]
[4] See Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 248 CLR 500 at 517 per French CJ & Crennan J and 542 per Gummow & Hayne JJ.
The applicable principles were summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant as follows:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[5]
In summary, an application arising under Part 3-1 of the Act involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the Act;
·Did the respondent concerned take adverse action against the applicant;
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.
As will become clear, as these reasons for judgment unfold, there is a paucity of evidence about this central evidentiary controversy in the current matter – what was the operative reason for Ms Rukavina’s dismissal. This is because there has been no direct evidence from any of the decision-makers concerned in the case.
In these circumstances, it is the contention of Ms Rukavina, and those advising her, that she should not be prejudiced, in terms of a costs order, because of her decision to withdraw her claim when each of the parties has not as yet been required to put flesh on the bones of their competing positions.
BACKGROUND
These proceedings are to be determined within the context of the Federal Circuit and Family Court of Australia Act 2021 (Cth)[6] and the rules made under it, particularly the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.[7]
[6] Hereinafter referred to as “the FCFCOA Act”.
[7] Hereinafter referred to as “the Rules”.
The Rules provide the mechanisms by which proceedings are to be commenced, in the court, including in respect of general protection proceedings. Whilst provisions of the FCFCOA Act provide the general ethos of the court itself and how it is directed to conduct any litigation coming before it.
Section 190 of the FCFCOA Act provides a directive to the court to, in the application of its practice and procedure, to facilitate the just resolution of disputes, according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the court’s overarching purpose.
Rule 1.04 of the Rules delineates the obligation of parties to assist the court to achieve its objectives as delineated by the overarching purpose parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.
Rule 30.04 stipulates the manner in which an application in respect of a general protection matter is to be commenced. It is to be made with the approved form and be accompanied by a claim in accordance with the approved form together with a certificate issued by the Fair Work Commission which indicates that the Commission is satisfied that all reasonable attempts have been made to resolve the relevant dispute or that such attempts are unlikely to be successful.
Rule 4.04 of the Rules provides that it is not necessary for an applicant, in general protection proceedings, to file any affidavit evidence in support of the application [see rule 4.04(2)(c)]. In addition, it should be noted that is always open to an applicant to commence proceedings by the filing of a statement of claim.
In this particular matter, Ms Rukavina elected to commence the proceedings by filing an application supported by a claim detailed in the prescribed form to which was attached a certificate from a Fair Work Commissioner, which indicated that a conference had been convened between the parties to the dispute on 3 May 2024, following which the Fair Work Commission was satisfied that all reasonable attempts to resolve the rising dispute had been undertaken and were likely to be unsuccessful.
In keeping with the ethos of the overarching purpose, the relevant claim form is not a complex document. The most significant section of the claim form is Part G, which poses the following issues, which are to be addressed, under the heading Contravention(s) alleged. The proforma aspect of Part G are as follows:
•What are the grounds for the claim that the employee was dismissed in contravention of a general protection? (Set out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim).
•If relying on s.340 specify the ‘workplace right’ claimed.
•If relying on s.351 specify the attribute in s.351(1).
•Attach an extra sheet if required.
In response to this question, Ms Rukavina has indicated the following:
Applicant was bullied and ultimately terminated after she raised several legitimate health and safety issues with management, contrary to s340 of the Fair Work Act.[8]
In my view, the contravention alleged is not particularised with any degree of precision. In particular, what is the workplace right relied upon by the applicant is not clearly articulated.
[8] See Application – Dismissal from employment in contravention of a general protection: form 2 filed by the Applicant on 17 May 2024 at Part G.
In terms of the remedy sought by her, Ms Rukavina has indicated that she sought unparticularised compensation and the imposition of a pecuniary penalty on FNQH. In this context, it is to be noted that section 340 is what is characterised as a civil remedy provision, which renders any person found to have breached the section liable to the imposition of a fine. The maximum penalty potentially able to be imposed is one of 60 penalty units.[9]
[9] Fair Work Act 2009 (Cth) s 539.
As was observed by Bromberg J in Celand v Skycity Adelaide Pty Ltd[10]allegations of contravention of the general protection proceedings are inherently serious and, as such, as a matter of fairness, need to be pleaded with sufficient precision to enable each respondent concerned to know the case against it.[11]
[10] Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 at [102].
[11] See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63] – [65].
In this context, it needs also to be said that there is no workplace right per se not to be bullied in the workplace, which falls within the purview of Part 3 – 1 of the Act. Rather, Part 6 – 4B of the FWA, which is headed Workers bullied at work details the provisions of the legislation relevant to bullying, including a definition of bullying [section 789FD] and the remedies available to a worker, if subject to bullying [section 789FC].
A worker is bullied if an individual or group of individuals subjects the person concerned to repeatedly unreasonable behaviour. Thereafter, a worker may apply to the Fair Work Commission for an order to stop the bullying. The Commission is obliged to deal with such an application promptly, being within fourteen days of the application.
The claim filed on behalf of Ms Rukavina does not allude specifically to her having made a complaint or inquiry to the management of FNQH or what is the applicable workplace law which pertains to such a complaint. It is to be assumed that it is a reference to relevant Queensland Health and Safety legislation.
In Shea v TRUenergy Services Pty Ltd (No 6)[12] Dodds-Streeton J defined the concept of being able to make a complaint, in the industrial context, in the following terms:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
[12] Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [29].
At a later stage, Dodds-Streeton J indicated the making of such a complaint was not restricted to a person who had the capacity to seek compliance with a legal obligation but extends to complaints about an employer made to the employer itself in relation to the person’s employment. In addition, such a complaint need not be factually correct or ultimately substantiated to be a complaint falling within the purview of section 341(1)(c)(ii).[13]
[13] Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [600].
In Henry v Leighton Admin Services Pty Ltd[14] Judge Manousaridis said the following of the same provision:
A person has a workplace right within the meaning of s 341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employee rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment.
[14] Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 at [77].
Recent Full Court authority confirms that to be able to make a complaint about one’s employment there must be an identifiable source of entitlement. These can include contractual terms providing a right to make a complaint and the general law. In the case, the majority held as follows:
An employee is “able to complain” to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer’s alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is “able to complain” to the employer or to a relevant authority of their employer’s alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority.[15]
[15] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [26].
In addition, to the brief statement in the actual claim form in response to the pro forma questions contained in Part G, Mr Irvine annexed to the claim a document which is headed Background – re Part G. This indicates that Ms Rukavina commenced at FNQH’s laboratory on 5 February 2024. During what is described as a process of induction it is asserted that Ms Rukavina noticed several deficiencies within the lab which could have resulted in serious hazards to colleagues or problems for patients/stakeholders.
What specifically are these deficiencies and what are serious hazards and/or problems to her potential colleagues at FNQH or its patients and those who referred them is not specified at all. In these circumstances, it seems to me that it would be difficult for FNQH to glean, from this document, what was the alleged complaint that the applicant had made to it, in order to found her workplace right.
Following this first shift, it is then asserted that Ms Rukavina telephoned Mr Makowksi, who is the managing director of FNQH and had a conversation with him, during which she politely and helpfully pointed out to him what she perceived to be the shortcoming of the laboratory, which she had observed.
It was in her following shift (the next day) that Ms Rukavina apparently alleges that she was bullied by her direct supervisor in the laboratory, which she presumes was as a result of the criticisms she had earlier relayed to Mr Makowski about practices in the laboratory generally.
It was at this stage, she alleges that the line manager directed her to collect her belongings and go home. Thereafter she did not receive any further shifts. This was a matter of great concern, as she had relocated from Adelaide to suburban Cairns to take up the position and was in temporary accommodation at the time. She raised her concerns with Mr Makowski in a text message and on 14 February 2024, she received a termination letter, under the hand of Mr Makowski, which said as follows:
We are writing to you about the termination of your employment with FNQHPathology Pty. Ltd. On Tuesday the 6th of February you were asked to complete the onboarding documentation which, directly relates to your job and allows us to comply with work health and safety laws, making it a lawful and reasonable instruction. We note that every employee of FNQHPathology Pty Ltd. must complete this documentation as part of the onboarding process. You said this was a waste of your time and you refused to complete the paperwork. You were asked if you would like five minutes to re-think this to which you replied no. You then asked if you should go to which Tarlia replied, your choice. You promptly gathered your belongings, left and (as at the date of this letter) have not returned to work.
In light of the above, you have failed to comply with the obligations under your employment contract, which you signed on about 29th of January 2024.
Accordingly, pursuant to clause 36 of your employment contract, we hereby terminate your employment on a summary basis for your failure to comply with your contract and serious misconduct in refusing to carry out a lawful and reasonable instructions.
In the concluding paragraph of the addendum to the claim form, it is asserted on Ms Rukavina’s behalf that:
[She] maintains that she was only terminated in retribution for providing constructive criticism regarding some serious unsafe, hazardous and non-compliant elements of the lab which she noticed during her first shift.
In this context, counsel for FNQH has pointed out that if Ms Rukavina is seeking to rely on section 341(1)(c), she has not specifically delineated what was the nature of her complaint, which has founded her workplace right. In these circumstances, reliance is placed on what was said by Snaden J, as follows: in Wong v National Australia Bank:[16]
[N]ot every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a complaint, as that term is properly understood. Were it otherwise, any form of reporting that involves the conveying of objectively unwelcome news would suffice to qualify.
[16] Wong v National Australia Bank [2021] FCA 671 at [153].
Neither Ms Rukavina nor any staff or managerial person at FNQH have filed any affidavit evidence or points of claim which contain any material regarding their competing perspectives as to what passed between the applicant, on the one hand, and Mr Makowski and presumably Tarlia, on the other hand, on 5 and 6 February 2024.
If the matter had proceeded to hearing, I assume the case would have been focussed on unteasing what were the substantive and operative reasons as to why the letter of 14 February 2024 was sent – was it because Ms Rukavina was penalised because of her legitimate complaints about the safety of the laboratory or because she voluntarily walked out following some form of contretemps with her direct manager over induction procedures.
Given the course this case has taken, it is impossible for this evidentiary issue to be resolved, given the lack of affidavit evidence regarding the issue. However, each party’s legal advisor has resolutely asserted the accuracy of the account proffered by their respective client and, in turn, this has influenced their respective views about the issue of costs to which this judgment is directed.
In this context, in my view, it is important to delineate what a general protection proceeding is not. It is not an inquiry into the laboratory practices of FNQH or whether its decision to terminate Ms Rukavina was procedurally fair or the correct one. As such it is not a broad inquiry as to whether she has been subjected to a procedurally or substantially unfair outcome.[17]
[17] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.
Rather, the only issue potentially subject to the determination of the court is whether FNQH took that the relevant adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. As the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[18]
[18] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
Necessarily this must be the sole focus of any application brought on Ms Rukavina’s behalf and any pleadings or affidavit material filed on her behalf. In my view, it is contrary to the principles contained in the overarching principle for a party to commence general protection proceedings based on an inchoate sense of grievance that he or she has been subject to some form of unfairness in the workplace and is therefore entitled to some form of recompense.
Given considerations of this type, in my view, there are real peril involved in any individual commencing any general protection proceeding without a clear conception of what is the workplace right to be engaged in the matter. It is not sufficient to hope that the prerequisite right will coalesce, in due course, when more evidence comes to hand or arise because of the burden which the reverse onus may potentially place on the employer concerned.
In this context, I note relevant authority requires evidence of the existence of a relevant workplace right as an objective fact prior to any engagement of section 361.[19] In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[20]
[19] See Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[20] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10].
The application was listed for its first directions hearing before the court on 19 September 2024. FNQH elected not to file a response to Ms Rukavina’s claim, after it had been served upon it. Rather, it filed an application in a proceeding, on 23 July 2024, seeking the striking out of the application pursuant to the provisions of the Federal Court Rules, which allow a party to apply to the court for the striking out of pleadings on a variety of bases, including the failure to disclose a reasonable course of action; ambiguity and evasion; abuse of process; and vexation.
The application was supported by an affidavit of FNQH’s solicitor, Ms Higgins. She deposed that she had written to Mr Irvine on 25 June 2024 to inform him of her view that Ms Rukavina’s application did not disclose a reasonable cause of action. It being her opinion that it was insufficient for the application to merely cite section 340 of the Act, without the provision particulars of material facts to support any alleged breach of the provision and therefore the application was deficient and therefore liable to dismissal. She invited Mr Irvine to amend the application.
Mr Irvine promptly replied to this correspondence inquiring of Ms Higgins as to whether her client wished to engage in settlement negotiations with him. Otherwise, Mr Irvine did not respond or elect to amend the relevant application. Shortly prior to the directions hearing of 19 September 2024, Ms Higgins again wrote to Mr Irvine asking him, once again, if he intended to amend his client’s application.
Mr Irvine responded to this correspondence promptly, indicating his client had apparently instructed him to see if there could be some negotiated resolution of what he characterised as a fairly simple case, which, in essential terms, was based on his assertion that his client had raised safety concerns and lost her job.
As such, it seems to me that it was asserted, on Ms Rukavina’s behalf, that she had a workplace right and was subject to adverse action and therefore the general protection provisions had automatic application without any particularisation of any objective or material fact to delineate what was the actual nature of that workplace right as envisaged in cases such as Jones.
On 19 September 2024, as I recall, I was informed that the relevant application was more properly characterised as an application for summary dismissal pursuant to section 143 of the FCFCOA Act. In this context, FNQH’s application was listed for hearing on 20 November 2024; Ms Rukavina was directed to file responding documents within 21 days and scheduling orders were made for each party to file submissions in anticipation of the hearing.
Mr Irvine did not attend to the filing of the responding documents, as ordered, on behalf of his client. In these circumstances, Ms Higgins wrote to Mr Irvine on 14 October 2024 to inquire of him what his client proposed to do in circumstances in which she sought clarification if it would be necessary for her client to be put to the expense of preparing formal submissions for the forthcoming summary dismissal application.
That same day, Mr Irvine responded indicating that he was seeking some final instructions from his client. Ultimately, on 31 October 2024, he wrote to Ms Higgins in the following terms:
I have heard back from my client.
I confirm that she has now found alternative employment, and therefore her expectations re this claim have substantially reduced.
Do you see merit in me submitting a proposal to you, notwithstanding your recent application? My client continues to assert that the claim is sufficiently particularised for you to be aware of the matter. We say it's not complex - she started with, she raised health and safety issues which is a workplace right under the WHS legislation, and she was sacked shortly thereafter.
My client thinks the causal connection exists between the raising of safety concerns and the termination - your client denies it.
The pleadings may be inelegantly drafted - but a defence could've been filed asserting denials or asserting an inability to respond due to ambiguity.
If your client remains prepared to negotiate, I could have a proposal to you possibly by COB.[21]
[21] See Annexure J to the affidavit of Catherine Higgins filed 5 November 2024.
It is the effect of Ms Higgins’ evidence that no such proposal was forthcoming. In early November there were apparently some fruitless settlement discussions between the parties. Given this situation, Ms Higgins filed her counsel’s written submissions, in support of the summary dismissal application, on 5 November 2024.
These submissions can be summarised as follows:
·The material filed on behalf of Ms Rukavina had failed to identify any workplace right.
·Ms Rukavina had not identified any material facts to demonstrate the exercise of any such right.
·The background document, filed on her behalf, was properly to be characterised as a speculative narrative and did not meet the criteria of a complaint for the purposes of section 341(2)(c).
·The application does not provide any quantification or justification for the award of compensation sought on the applicant’s behalf.
·This lack of particularity in the application confronting it created a situation of procedural unfairness for FNQH, which amounted to a substantial level of injustice, which the court could not condone, particularly given those representing it had consistently and repeatedly invited those representing Ms Rukavina to amend her application to no avail.
·In addition to the claim itself being without merit, it was to be characterised as an abuse of the court’s processes because the applicant’s repeated requests for a negotiated outcome could only be characterised as being a device to exert pressure on the respondent to reach a commercial settlement, without being in a position to successfully prosecute the case.
As indicated above, the applicant did not respond to these submissions in a formal way. However, on the afternoon shortly prior to the time scheduled for the summary dismissal application, the applicant’s solicitor sent an email to my chambers, which read as follows:
In recent weeks I have been seeking some advice regarding the mechanisms and operation of a specific Queensland jurisdiction (noting that the alleged cause of action occurred in Queensland).
My client has been provided with said advice and she now instructs me to withdraw this general protections application. I attach herewith a copy of the discontinuance.
In recent weeks I have communicated with the respondent to attempt to expedite the resolution of the matter and avoid the need to consider further litigation interstate, but those discussions have not proven fruitful.
Prior to filing this notice, I have attempted to contact the respondent's representatives over the last couple of days, and recently received a phone call from Ms Crawford who is CCd into this email.
I understand that notwithstanding me indicating that I have received instructions from my client to withdraw the dispute, the respondent still wants to argue the merits.
I do not see the necessity of that - my client wants to bring the action to a close via this discontinuance and is not opposed to the matter being dismissed.
If the respondent submits that it has incurred costs unnecessarily, then perhaps a separate costs application can be made.
Counsel for the respondent took objection to the late provision of the notice of discontinuance, which had not been formally filed, when the case came on for hearing nor executed. Division 13.1 of the Rules deals with the process involved in ending a proceeding early through the filing of a notice of discontinuance. The Rules emphasis that this process is to be done expeditiously and involves giving notice to the opposing party. The rules also envisage any other party to the discontinued proceedings to apply for costs.
Counsel for FNQH indicated her wish to proceed with the listed application and foreshadowed that there would be an application for costs. I formed the view that given the indication Ms Rukavina did not wish to proceed with her application there was no utility in there being any adjudication of the summary dismissal application and the proper course would be to deal with any application for costs at a later stage.
This application was fixed for hearing on 12 December 2024 and ancillary procedural orders were made for each party to file any necessary affidavit material and supporting submissions.
PARTIES’ SUBMISSIONS ON COSTS
FNQH submits that it was put to the unnecessary expense of preparing for the summary dismissal hearing, which costs were inflated because of the extremely late communication from Mr Irvine that the application would not be opposed, and no material would be filed.
In addition, reliance is placed on the fact that there was a complete lack of compliance with the order that material be filed by the applicant well in advance of the hearing which was not accompanied by any indication of what would be the applicant’s position in the matter. In these circumstances, the respondent had no alternative available to it other than to assume the matter would proceed and prepare its submissions.
Ms Higgins has calculated the respondent’s costs on a solicitor/client (or full indemnity) basis as being $17,041.95 of which sum $7,610.00 is attributable to disbursements in the form of filing and counsel’s fees. These costs were incurred between 4 June 2024 and 20 November 2024.
Mr Irvine deposed an affidavit in support of his position that each party should bear their own costs in the proceedings, which was filed on 9 December 2024. It is a reasonably lengthy affidavit which attempts to traverse telephone discussions between him and the respondent’s representatives regarding the potential settlement of the matter. In this context, although no objection was taken to the affidavit, I was concerned that it did contain information that was privileged.
Regrettably, much of its content seemed to me to be self-serving rather than focussed on the gravamen of the submissions made by the respondent regarding the weaknesses and omissions in the application prepared by him. His evidence can be summarised as follows:
·His client was cash strapped and wanted a quick resolution of her case;
·He agreed to cap his fees at $4,000.00;
·He personally believed her general protection claim to be meritorious;
·In this context, he believed what Ms Rukavina told him (which I note has never been placed in affidavit evidence before me) that the respondent’s laboratory was a dog’s breakfast and later staff were rude, snappy and cold towards her;
·He personally had no sense that the respondent was confused about the nature of the case confronting it;
·He characterised the application for summary dismissal as overkill and reflective of an overly litigious response, particularly as he assumed that the respondent would consent to taking part in mediation; and
·Throughout September and October, he has sought advice in Queensland as to whether the applicant had alternative causes of action.
In his written submissions, Mr Irvine points to the fact that the litigation in the current matter had not been on foot for a lengthy period of time and was concluded before the preparation of very many documents and the involvement of the court at multiple events. I acknowledge this is so and this is an important factor.
In general terms, he characterises his client as a financially disadvantaged person, who had made a significant decision to relocate to Far North Queensland from South Australia, who gradually came to the conclusion that any judgment in her favour might be outweighed by the costs implications of her application.
In his submissions, Mr Irvine conceded that his client, after reading the respondent’s submissions, had reached the conclusion that a trial of the action seemed more risky and the prospects of her being successful were waning. From the perspective of the respondent, comments of this kind are tantamount to a tacit acknowledgement that the application should not have been brought and it was unreasonable to do so.
In my view, the major difficulty with Mr Irvine’s evidence and submission is his assertion that Ms Rukavina had a good case, which therefore carried within it an inherent level of justification, is based on his own subjective assessment of it. I have available to me no material on which to base any objective assessment of its strengths and weaknesses.
Rather, as with much rigorously contested adversarial litigation, the parties have diametrically opposed views as to what occurred in the laboratory in question. I cannot resolve this controversy, other than to point out that it was the applicant who in a metaphorical sense blinked first. By necessary implication neither she nor Mr Irvine had the courage of their first convictions.
LEGAL PRINCIPLES RELATING TO COSTS
As indicated above, pursuant to section 570(1) of the FWA, the court is not to make an order for costs in fair work proceeding other than pursuant to the conditions contained in section 570(2), the applicable portions of which reads as follows:
(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)…
Accordingly, the court has a controlled discretion regarding the award of costs relating to proceedings under the Act.
In the current matter, FNQH asserts both that Ms Rukavina commenced the proceedings without reasonable cause and her unreasonable actions during the course of the proceedings caused it to incur costs. Although there is some factual overlap in respect of the two criteria, I am required to consider both.
I have already alluded to the public protection implications of section 570. The section is a piece of beneficial legislation, which recognises there may be, in the context of litigation arising from workplace disputes, a great disparity between the financial resources of any employer and employee concerned.
The former may be a large publicly listed company generating a large economic return with a payroll of thousands with ready access to highly skilled legal advice. The latter may be either a modest salary earner or someone between positions, who necessarily has extremely limited financial resources and so limited access to legal advice and for whom any order for costs may be financially crippling.
For such a person, the prospect of being made liable for costs is likely to be a powerful disincentive to bring proceedings, in the industrial law context, although otherwise the claim mooted is one of moment for the individual concerned.
The provision, which renders the fair work jurisdiction a cost-free jurisdiction, other than in closely circumscribed circumstances, must be considered within the overall objectives of the legislation, which are directed to securing the public good, through the preservation of a minimum standard of industrial conditions and a system to preserve the rights of workers within the workplace [see FWA at section 3].
It is in the public interest that the rights of employees be protected and that any properly aggrieved worker is able to have ready access to justice to this end without fear of being crushed by an order for costs.
On the other hand, the authority to award costs, in appropriate cases, may be the only instrument to protect employers, regardless of their size and resources, from being the subject of vexatious litigation brought by either misguided or vindictive former employees. Such employers are entitled to redress, in these circumstances, notwithstanding their financial resources.
However, in the case of Johnson v Monti-Haitsma Enterprises (No 2)[22] Edmonds J observed that the cost protection provided to a party pursuant to section 570 did not provide a free kick. Rather it was something which had to be considered within the overarching purpose applicable to the conduct of civil proceeding in both this court and the Federal Court.
[22] See Johnson v Monti-Haitsma Enterprises (No 2) [2014] FCA 1020 at [16].
As a consequence of its enabling legislation, the Federal Circuit and Family Court of Australia is subject to a broadly based system of case management in terms of actual proceedings. This arises from the rubric its overarching purpose to which reference has already been made.
Earlier, in this judgment I have set out the manner in which this court is to manage the civil litigation coming before it under the aegis of its overarching purpose. Section 190(2) of the FCFCOA Act defines it through the following objectives:
·The just determination of proceedings;
·The efficient use of judicial and administrative resources;
·The efficient and timely disposal of cases; and
·The resolution of disputes at a cost proportionate to the importance and complexity of the issues raised by them.
Pursuant to subsections 191(1) and (2) of the FCFCOA, both the parties and their lawyers are obliged to conduct litigation before the court, including negotiations for settlement in ways that are consistent with the overarching purpose. Such principles inform section 191(4) which reads as follows:
In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
In the context of these principles, pursuant to section 192 of the FCFCOA Act, the court is empowered to give directions to ensure the compliance of parties with the principles contained in the overarching purpose.
Pursuant to section 192(3) if a party fails to comply with such a direction, the court may make any order which it thinks appropriate, including pursuant to section 192(4) an order for costs, including indemnity costs.
Pursuant to rule 22.02(2) of the Rules the court has a wide discretion as to how costs are to be calculated. It may set a specific amount; set the method by which costs are to be calculated; or refer the matter for taxation.
The Rules grant the court a discretion to order costs against a lawyer if that lawyer’s conduct has caused costs to be incurred or thrown away because of undue delay, negligence, improper conduct or other misconduct or default [rule 22.06].
Circumstances which may constitute default are listed in sub-rule (2) and include a failure to file a document as required. In this case, counsel for FNQH is critical of Mr Irvine for not responding to the application for summary dismissal as directed and providing the incomplete notice of withdrawal at an extremely late stage.
Before such an order can be made, notice must be given to the lawyer concerned. FNQH has not formally sought any order for costs against Mr Irvine personally and I am not inclined to make such an order. However, FNQH has sought an order for indemnity costs.
Indemnity costs are exceptional in their nature. In Colgate Palmolive v Cussons Pty Ltd[23] it was held that indemnity costs are not commonly ordered and will only be ordered if the court is satisfied that there is some special or unusual feature of the case to justify the Court in departing from the ordinary practice of ordering the costs be paid on a party and party basis.
[23] See Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
There is no closed category of cases in which indemnity costs might appropriately be ordered, but in Colgate Palmolive, the court said that the kinds of situation in which indemnity costs might be considered were where a litigant had:
·commenced or continued an action knowing it to have no chance of success;
·made false or irrelevant allegations of fraud;
·made groundless allegations which prolong a case; and
·imprudently refused an offer to compromise.
In more general terms, an order for indemnity costs may be made if the justice of the case might so require.[24] Other circumstances which may justify such an award include:
·conduct which causes loss of time to the court and other parties;
·commencement of proceedings for an ulterior motive; and
·the commencement or continuation of proceedings in wilful disregard of known facts or clearly established law.[25]
[24] See Australian & International Pilots Association v Qantas Airlines Limited (No 3) [2007] FCA 879 at [39].
[25] See Ryan v Primesafe [2015] FCA 8 at [110].
Given the beneficial nature of the relevant provision, authority emphasises the caution which must be taken before any order for costs is made against an applicant in fair work proceedings. In Saxena v PPF Asset Management Ltd[26] Bromberg J said as follows:
I wholeheartedly agree that this Court ought be very careful indeed to exercise the discretion provided by section 570(2) and should not do so other than in a clear case. The limited discretion conferred on the Court by that subsection ought not become the basis for arguments about costs in relation to any and every transgression in the conduct of a case.
[26]See Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6].
These were themes taken up in Ryan v Primesafe[27] by Mortimer J (as her Honour then was) as follows:
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 section 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.
[27] See Ryan v Primesafe [2015] FCA 8 at [64].
The Full Court of the Federal Court explained the legislative rationale for section 570 in Australian Workers Union v Leighton Contractors Pty Ltd (No 2)[28] where it was said as follows:
[I]n our view the authorities establish the following principles:
1.The purpose or policy of the sections to free parties from the risk of having to pay their opponent’s costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable course.
2.It follows from the protection offered by section 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order …
3.The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed …
We would emphasise however, that these principles relate to the question of whether the jurisdiction to award costs is enlivened. Even if the court has jurisdiction to make a costs order, it retains the discretion to refrain from exercising it in an appropriate case.
[28] See Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23 at [7]-[8].
As indicated above section 570(2) provides two ways in which an order for costs may be made in fair work proceedings. It seems to me that authority relevant to section 570(2)(a) requires an objective assessment of the legal and factual situation prevailing when the application was commenced.
In Spotlight Services Australia Ltd v Deputy President Marsh[29] the Full Court of the Federal Court (approved in Leighton) said as follows:
The usual course is that, in matters arising under the Act, there will be no order as to costs. To that extent a costs order is an exceptional order. However, there is no warrant for applying “an exceptional circumstances test” to consider whether a proceeding has been commenced without reasonable cause. Whether a proceeding has been commenced without reasonable cause is relevantly established as a matter of objective fact.
[29] See Spotless Services Australia Ltd v Deputy President March [2004] FCAFC 155 at [13].
In this context, in my view, the following passage of Wilcox J from Kanan v Australian Postal & Telecommunications Union[30] seems to be useful:
If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceedings lack a reasonable cause.
[30] See Kanan v Australian Postal & Telecommunications Union [1992] FCA 539 at page 8.
In this context, the relevant authorities recognise a distinction between cases where proceedings are, at their commencement, misconceived in the sense of being incompetent or unsupportable and those in which, as the case develops, issues or arguments previously advanced must be abandoned as untenable. Necessarily many cases involve a process of refinement of issues as new facts emerge and it becomes more apparent what legal principles are engaged.
Inevitably, cases evolve, as they go along, and it is the obligation of lawyers to respond to such developments as they emerge. In Ragata Developments Pty Ltd v Westpac Banking Corporation[31] Davies J said as follows:
It is the task of lawyers to define for their clients the matters which ought to be put to a court and the matters which ought not to be put. It is the duty and function of lawyers to advise their clients on these aspects. Such advice must be given as the case progresses, as more becomes known of the facts and as the lawyers come to understand the ensuing ramifications. It is not a task that can be undertaken once and for all before the proceedings are instituted, before discovery of documents has been had, or before the affidavits of the opposing parties have been received and studied.
[31] Ragata Developments Pty Ltd v Westpac Banking Corporation & Anor [1993] FCA 115 at page 8.
In these circumstances, it is a significant finding for the court to make, that a case was irretrievably flawed from what Americans refer to as the get go, particularly in the fair work context. As have been noted above, the discretion provided by section 570(2) is to be exercised carefully and without due haste in order to avoid parties from being discouraged from pursuing litigation, as they deem appropriate, out of fear of incurring a cost order.
In Construction, Forestry, Mining and Energy Union v Clarke[32] the Full Court of the Federal Court held that two criteria must be satisfied in order to engage section 570(2)(b). They are:
·A party must have engaged in an unreasonable act or omission; and
·The unreasonable act or omission must have caused another party to incur costs in connection with the proceedings.
[32] See Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 [28].
Lack of compliance with the overarching purpose obligations may qualify as an unreasonable act for the purposes of section 570(2)(b) of the FWA.[33] So too may a failure to conduct litigation efficiently. However, in Clarke the Full Court recognised that the discretion to award costs, in the industrial context, should not necessarily be exercised merely because a party does not conduct its litigation in the most efficient way.[34]
[33] See Bywater v Appco Group Australia Pty Ltd [2019] FCA 799 at [10].
[34] See Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [29].
In the current matter, FNQH assert that Ms Rukavina’s application was flawed and unsupportable from the outset. On the other hand, as I understand Mr Irvine’s position, he asserts that the case was, at the very least, arguable on a prima facie basis and the decision to withdraw it was made as facts and circumstances changed from the perspective of his client.
In this context, the Full Court in Clarke noted that although a late concession, by a party, in respect of some particular issue, may result in the other party incurring additional costs, this does not automatically amount to an unreasonable act for the purposes of section 570(2)(b) given the care with which the discretion provided by the section is to be exercised without such haste that it may discourage parties, for fear of an adverse costs order, from pursuing litigation… in the manner which they deem best.[35]
[35] See Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [29].
In my view, the must always arise the potential for a tension to arise between case management principles, which mandate the efficient use of court resources by seeking to proscribe inefficient and misconceived applications and access to justice principles such as section 570. In a case like the present one, it falls to the court to engage in a process of reconciliation of the tension, which was described as follows in Ryan v Primesafe:[36]
That reconciliation occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put.
[36] See Ryan v Primesafe [2015] FCA 8 at [64]
Flick J commented on this balance, which he characterised as being subject to an ever-growing level of tension, in the following terms:
The need for caution and the objective sought to be achieved by provisions such as section 570 may readily be accepted. But there is also a need to keep constantly under scrutiny the manner in which proceedings are conducted, including proceedings under the Fair Work Act, to ensure that costs are not “unreasonably” incurred and that the public interest in the orderly and cost-effective administration of justice is not too readily placed to one side.[37]
[37] See Tomvald v Toll Transport [2017] FCA 1208 at [315].
Essentially, it seems to me, that on the basis of the extremely limited evidence available to me and from my analysis of the cursory and unparticularised documents filed on behalf of Ms Rukavina, to which no formal response has been made, I must determine the reasonableness of the applicant’s conduct both at stage at which the proceedings were commenced and more significantly during the course of them.
It is a process involving the balance and reconciliation of competing principles, which must be undertaken cautiously, from a careful analysis of both facts and law. The interests of access to justice, in the industrial setting, must be balanced against the risk of awarding a potential free kick to a person, who is accessing the court for ulterior or improper purposes or has conducted proceedings in an unreasonable manner. The discretion must be exercised judicially.
CONCLUSIONS
In my view, Ms Rukavina’s case was not clearly articulated at the time of its commencement. She did not adequately specify the workplace right on which she relied. Rather, her application and its supporting claim proceeded on the assumption that the assertion of an inchoate workplace right, when coupled with the fact that she had been subject to adverse action, was sufficient.
In addition, by necessary implication, she relied on the application of the reverse onus provisions contained in section 361 as requiring FNQH as having to negate her assertion to establish her cause of action. In my view, on the basis of what was said particularly in Jones v Queensland Tertiary Admissions Centre Limited (No 2), Ms Rukavina and those advising her needed to do more.
What was needed was the provision by her, to both the court and FNQH, of objective facts to establish a sufficient evidentiary basis that she had been subject to adverse action because of a prohibited attribute pertaining to her. It is not sufficient to merely assert the existence of a workplace right. No such objective facts have been provided.
I do not consider that the institution of proceedings, in this way, is consistent with the overarching principle which underpins all litigation in this court. It is not calculated to assist with the efficient and effective delivery of justice. The court should not encourage ill-defined and ambit claims, even in a cost protected jurisdiction such as the fair work one.
In these circumstances, in my view, FNQH was entitled to seek particulars of the alleged workplace right relied upon, which it did on four discrete occasions prior to the first listing of the matter, for its first mention, in September 2024. In addition, it invited the applicant to amend its application to provide these particulars.
The fact that no such particulars were ever provided, and no amendment made, in the approximately six months the matter was before the court, lends weight to the respondent’s submission that Ms Rukavina, and more importantly those advising her, had not given any thought to whether there was a proper legal basis for the application other than Ms Rukavina had been dismissed and was aggrieved by it.
Accordingly, in my view, although it cannot be found definitively that the proceedings were commenced vexatiously, the assertion that they had been instituted without reasonable cause could have been negated by the making of amendment; the provision of particulars; or the filing of further evidence; none of which occurred, notwithstanding the fact that requests were made to this effect and there was ample time available to do so.
In this context, the fact that Mr Irvine has subsequently and somewhat obliquely conceded that proceedings might have been commenced in another jurisdiction based in Queensland is also significant and lends weight to the conclusion that no great thought had been given to whether there was a proper basis for the general protection claim to proceed in this jurisdiction.
In my view, in the absence of actual evidence, it is not sufficient for Mr Irvine to assert that he subjectively considered that Ms Rukavina had a strong case. I acknowledge the idiosyncratic nature of the general protection jurisdiction and the underlying public policy considerations which are directed towards individuals, who, like Ms Rukavina are not well-resourced financially, being able to ventilate claims of exploitation, in the industrial context, without fear of being intimidated by the threat of costs.
In addition, some may consider Mr Irvine’s willingness to take on the case, whilst knowing Ms Rukavina was not in a position to fund the litigation to its conclusion to be laudable. Others may think such an attitude to be irresponsible or foolhardy. By necessary implication, such a position should only be adopted if the lawyer concerned is on firm ground at the commencement of such proceedings.
In these circumstances, in my view, the complete failure to provide the particulars sought and to make any amendment of the claim or indeed file affidavit evidence in which Ms Rukavina could articulate her grievances against FNQH point more in favour of the latter conclusion than the former.
Given the nature of the claim made against it and the absence of any particulars of it, in my view, FNQH’s summary dismissal application cannot be properly described as litigious overkill. From its perspective, given that civil penalties and unspecified compensation was sought from it, it was entitled to respond assertively to the matter.
As indicated above, a failure to abide by the overarching principle of civil litigation in this court and to respond promptly to orders and directions of the court, can, in appropriate circumstances, amount to unreasonable actions for the purposes of section 570(2)(b). Although again I concede that caution must be exercised before reaching such a conclusion.
In this particular case, in my view, it is highly significant, that it was only at an extremely late stage prior to the listing for hearing of the summary dismissal application, that the decision to withdraw Ms Rukavina’s claim was conveyed to the court and respondent. In my view, this must be adjudged to be unreasonable conduct.
Given the lateness of this notice, FNQH, as directed by the court, prepared its submissions in support of its application, which resulted in it incurring costs unnecessarily. In my view, this is not in keeping with the overarching principle and the concepts underpinning it.
A more significant aspect of FNQH’s case is that, whilst knowing the case available to Ms Rukavina was beset with challenge, a cynical decision was made to institute proceedings in the hope that it would result in an offer of compromise being made because the respondent wished to avoid its own costs and the burden of being involved in litigation against, regardless of the fact that it had made its own assessment that such litigation was unmeritorious.
In my view, if there is any truth to this assertion, it would render the commencement of the proceedings as being without reasonable cause. As previously indicated, Mr Irvine has consistently asserted that he had assessed Ms Rukavina’s case to be a strong one. However, the fact remains that, notwithstanding this assessment, he was not prepared to advance it beyond its filing.
As previously indicated, any assessment of the overall merits of the case must depend on the existence of objective facts. In this context, the only objective facts available to me are that the respondent consistently requested of Mr Irvine details of what was the workplace right relied upon; invited the applicant to amend; and put Mr Irvine on notice that it considered his client had no reasonable prospect of success by filing a summary jurisdiction application.
The evidence indicates that Mr Irvine failed to respond to all of these interventions in any formal way other than to inquire of the respondent whether there was any prospect of there being a negotiated outcome, until at the last possible moment, after the costs of preparation of the summary judgment application had been incurred, the initiating application was withdrawn.
In my view, Mr Irvine was imprudent to assume that, notwithstanding the emphasis which the court places on alternative dispute resolution, the court would order the parties to attend mediation. The court retains a discretion in respect of involving parties in mediation and, given the idiosyncrasies of each case coming before it, must be ever vigilant that its processes are not utilised for improper purposes or allow them to become abusive.
Given the deficiencies in the original application; when coupled with any attempt to amend or particularise it and the failure to engage with the summary dismissal application, I have formed the view that the proceedings were commenced without reasonable cause and further that the withdrawal of proceedings shortly prior to the time scheduled for the hearing of the summary dismissal application, satisfy the preconditions contained in section 570(2) of the FWA for an awards of costs to be made in this matter.
I appreciate the need for caution given the rationale underpinning the fair work jurisdiction ordinarily being one in which orders for costs are not made. But, at the same time, as Flick J pointed out, the court must ensure that its processes remain under scrutiny to ensure, that the conduct of the parties coming before it is reasonable; there is timely compliance with orders made by the court; and the claims initiated by them have a proper substantive and legal basis.
I have attempted such an analysis in this matter, and reached the conclusion that an award of costs against the applicant is warranted in all the circumstances. I do not consider that an award of indemnity costs would be reasonable. As previously indicated, the court has a wide discretion as to how cost should be calculated, one of which is to adopt the fixed event schedule of cost created by Schedule 2 of the Rules.
I propose to fix costs in an amount of $4,955.37, which is the fixed amount for an interim or summary hearing, together with the sum of $1,606.00 which is the disbursement incurred by the respondent in respect of counsel’s fee for the wasted interim hearing. I will direct that the costs be paid within 28 days.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 28 January 2025
[5] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].
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