Ruttley v Willis Bros Installations (Qld) Pty Ltd
[2022] FedCFamC2G 942
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ruttley v Willis Bros Installations (QLD) Pty Ltd [2022] FedCFamC2G 942]
File number(s): BRG 479 of 2020 Judgment of: JUDGE VASTA Date of judgment: 21 November 2022 Catchwords: PRACTICE & PROCEDURE – Costs – assessment of costs –respondent to pay applicant’s costs fixed Legislation: Fair Work Act 2009 (Cth): s, 546, s 570 Cases cited: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 7 September 2022 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicant: Ms Blattman Solicitor for the Applicant: Shand Taylor Lawyers Counsel for the Respondent: Ms A-Khavari Solicitor for the Respondent: K & L Gates ORDERS
BRG 479 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIMOTHY JOHN RUTTLEY
Applicant
AND: WILLIS BROTHERS INSTALLATIONS (QLD) PTY LTD ACN 132 309 936
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
21 November 2022
THE COURT ORDERS THAT:
1.The Respondent pay the Applicant’s costs of and incidental to the application fixed in the sum of $25,000.
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 VASTA
Introduction
On 9 June 2022, Her Honour Judge Tonkin made a declaration that the Respondent had contravened three sections of the Fair Work Act 2009 (Cth) (“FW Act”). Her Honour ordered that the Respondent pay, to the Applicant, compensation in the amount of $162,631 with interest.
On 3 August 2022, Her Honour heard an application for the imposition of pecuniary penalties following the making of the declaration of contravention of the FW Act. On 4 November 2022, Her Honour ordered that the Respondent pay pecuniary penalties in the amount of $75,600. Her Honour ordered that the Respondent pay that sum to the Applicant.
The Applicant had made an application for costs. Her Honour transferred the determination of that matter. The matter came into my docket and the parties, through Her Honour’s Chambers, asked me to determine the matter “on the papers”.
General observations
I have gleaned the background to this matter solely through reference to the decisions made by Her Honour on 9 June 2022 and 4 November 2022.
It is clear from those decisions that Her Honour did not accept the evidence that was adduced by the Respondent and was extremely critical of the main witness for the Respondent.
Costs in proceedings under the FW Act
The fair work jurisdiction is known to be a “no costs” jurisdiction. The awarding of costs in this jurisdiction is proscribed by s 570. In regards to the present matter it would seem that s 570(2)(b) is apposite.
Applying that subsection to the present case, the Court could order costs against the Respondent only if the Court is satisfied that the Respondent’s unreasonable act or omission caused the Applicant to incur the costs.
The question for the Court to consider is what was the unreasonable act that the Respondent committed?
Unreasonable act
The Applicant argues that the Respondent did not have “an arguable evidentiary or legal basis for defending these proceedings”. The Applicant argues that Her Honour found that the witnesses for the Respondent either lied or their evidence was rejected entirely (which would mean that the Court found that they were untruthful witnesses).
The Applicant pointed to 15 aspects of the evidence of the witnesses for the Respondent in which the Court rejected the evidence. The Applicant submitted that s 570 was “not designed to protect liars from the costs consequences of their lies”. The Applicant submitted that the Respondent’s defence of the proceedings constituted an unreasonable act causing the Applicant to incur the costs of the proceeding because the Respondent’s defence to the proceeding was based on lies.
The submission really is that the Respondent should not have defended the action because they could not honestly do so and by choosing to defend the action, they have committed “an unreasonable act”.
However, the “unreasonableness” of any act cannot be equated with the “result” of that act. Whilst it may be that a Court rejects evidence or even finds that a witness has lied, it does not mean that any reliance upon that evidence is automatically “unreasonable”.
On balance, I am of the view that, whilst Respondents are always entitled to defend claims against them, they cannot defend those claims based partly upon premises that they know to be false. In partly relying upon evidence which the Respondent knew to be false, I am of the view that the Respondent committed an unreasonable act.
I am of the view that this unreasonable act did cause the Applicant to incur some costs and that if there had not been reliance upon that false evidence, the Applicant would not have incurred as great an amount of costs.
The discretion to award costs
Whilst I have made the above finding, all that means is that the evidentiary basis to enliven the discretion to award costs has been established. It is still a matter for me as to whether I award any costs or, if I were to award costs, what the amount of those costs should be.
In this case, I am mindful that the Applicant failed to convince the Court that it should award the amount of quantum sought by the Applicant. I am mindful that the only offer made between the parties to settle the proceedings, was an offer in which the Applicant sought a greater sum than that which was eventually awarded by the Court.
The Respondent points out that the Applicant initially claimed compensation totalling over $4.7 million. This was the position of the Applicant for the first 10 months of the proceeding. For the next month, the Applicant reduced his initial claim to one of just over $1.8 million.
The matter was listed for trial from 27 July 2021 to 30 July 2021. The Applicant sought leave to amend his claim and this meant that the trial dates had to be vacated. Upon amending the claim, the Applicant was seeking a sum of just over $607,000. When the matter came to trial and the Applicant had to file an outline of submissions, the quantum sought was now $412,506.53. The Court eventually ordered compensation of just over $162,000.
The Applicant contends that this was a matter of quantum and not liability. The Applicant contends that the trial was mostly fought on the issue of liability and that is where the costs were incurred.
I do not accept this submission. The Applicant has claimed that the act of defending the whole claim was unreasonable and so the whole of the costs of the Applicant should be met by the Respondent. Yet, the Applicant conflates the issues of liability with the issues of quantum in making that submission but retreats from that stance when the fickleness of the quantum claim is illustrated by the Respondent.
I am also mindful that the Court has already determined the quantum of pecuniary penalties and has, pursuant to s 546(3) of the FW act, ordered those penalties to be paid to the Applicant.
A large part of the reasoning of the Court was based on the authority of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4. One of the factors to take into consideration as to why an Applicant should be awarded the pecuniary penalty as opposed to the Commonwealth was that:-
[113]it being appropriate to take into account the costs and expenses to which the Applicant, as Applicant had obviously been exposed in the assertion of their contractual and statutory rights in the proceeding. That was not to suggest that the discretion should be exercised in a way that provides a substitute for costs which are unavailable under s 570 of the FW Act, but where there have clearly been such costs and expenses, it may serve to counter any suggestion that the Applicant would walk away from the case with a “windfall” or “profit”.
The Applicant has already had the advantage of an order that he be the recipient of the pecuniary penalties because of such factors, yet now he is asking for his costs.
Conclusion
Notwithstanding all that I have just said, I am of the view that a costs order, of some description, should be made.
The Applicant has asked for his costs on an indemnity basis. Given the history of the matter, I am not persuaded that there has been a special, or exceptional, aspect to the conduct of the Respondent that would justify an award of indemnity costs.
This would mean ordering costs on the scale amount. This would also mean that there would be more costs expended in calculating, and even taxing, those costs. In my view, it would be best that I simply arrive an appropriate sum myself and order costs to be paid in a fixed sum.
Order
In all of the circumstances, I order that the Respondent pay the costs of the Applicant fixed in the sum of $25,000.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 21 November 2022
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