Simpson v Traverse Alpine Operations Pty Ltd

[2020] FCCA 2729

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMPSON v TRAVERSE ALPINE OPERATIONS PTY LTD & ORS [2020] FCCA 2729

Catchwords:
INDUSTRIAL LAW – COSTS – Application for costs by Respondents following Application in a Case for summary dismissal and strike out – interlocutory issue not pressed – statement of claim amended – proceedings in the Federal Court of Australia between some of the parties – agreed to transfer to the Federal Court of Australia – Court’s power to award costs – costs order not made at this time – costs reserved.

Legislation:

Fair Work Act 2009 (Cth), ss.550, 570

Federal Circuit Court Rules 2001 (Cth), rr.21.02, 21.04 and Part 21

Cases cited:

Ryan v Primesafe [2015] FCA 8

Applicant: SALLY SIMPSON

First Respondent: TRAVERSE ALPINE OPERATIONS PTY LTD

Second Respondent: ALTITUDE BODY CORPORATE & MANAGEMENT PTY LTD

Third Respondent: ROSEMARY KAREN SEATON

Fourth Respondent: SEAMUS JAMES DAWES

Fifth Respondent: JAMES STEWART

File Number: MLG 1489 of 2019

Judgment of: Judge Blake

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: Melbourne

Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicant: Mr North of Queen's Counsel with Mr Burt of Counsel

Solicitors for the Applicant: Litton Legal

Counsel for the Respondents: Mr Bourke of Queen's Counsel with Ms Latif of Counsel

Solicitors for the Respondents: Thomson Geer

ORDERS

1. The Respondents’ Application in a Case dated 15 May 2020 is otherwise withdrawn.  

2. The costs of and incidental to the Application in a Case dated 15 May 2020 be reserved.

3. The Applicant have leave to file and serve the Amended Statement of Claim in the form of the Statement of Claim as filed with the Affidavit of Rebecca Ann Litton dated 29 July 2020, within seven days of the date of this order.

4. Proceeding MLG1489/2019 be transferred to the Federal Court of Australia, to the docket of Justice Anastassiou, to be dealt with for further directions, together with proceeding VID 439 of 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1489 of 2019

SALLY SIMPSON

Applicant

And

TRAVERSE ALPINE OPERATIONS PTY LTD

First Respondent

ALTITUDE BODY CORPORATE & MANAGEMENT PTY LTD

Second Respondent

ROSEMARY KAREN SEATON

Third Respondent

SEAMUS JAMES DAWES

Fourth Respondent

JAMES STEWART

Fifth Respondent

REASONS FOR JUDGMENT

Introduction

1. The application before the Court is pursued by the Respondents.  They seek costs relating to an Application in a Case dated 15 May 2020.  In the Application in a Case, the Respondents sought, inter alia, that parts of the Applicant’s claim be summarily dismissed, or struck out (the ‘Strike Out Application’). 

2. The application for costs is opposed by the Applicant.

Background

1. A brief summary of the relevant background is set out below.

2. The Applicant filed her adverse action claim in this Court on 15 May 2020. Part of the claim comprised of a claim against certain individuals who it is contended were accessories to various contraventions pursuant to section 550 of the Fair Work Act 2009 (‘Act’).

3. The Respondents raised various concerns about the form of the claim. This led to the Applicant amending the claim documents. Three versions of a Statement of Claim were drawn.  The third version was provided to the Respondents on 14 April 2020. 

4. On 15 May 2020, the Strike Out Application was filed.  It was ultimately listed for hearing before me on 31 July 2020.

5. On 30 July 2020, one day before the hearing of the Strike Out Application, the Applicant served a fourth version of the Statement of Claim (‘SOC 4’).  SOC 4 included 17 pages of further particulars.

6. In light of receiving SOC 4, the Respondents sought an adjournment of the hearing before me on 31 July 2020.  The Applicant refused to consent to the adjournment.  The matter ultimately came on before me.  I adjourned the Strike Out Application to 9 September 2020.  I also made various procedural orders.  I reserved the question of costs.

7. The Respondents ultimately elected not to pursue the Strike Out Application in light of SOC 4.  The Respondents, however, seek indemnity costs of, and incidental to, the Strike Out Application.  The Respondents also seek an order for costs thrown away by reason of the Applicant’s late filing of additional material on 30 July 2020, and their refusal to adjourn the matter on 31 July 2020, which occasioned the appearance before the Court on 31 July 2020.

8. There is one further background matter.  There exist proceedings between the parties in the Federal Court of Australia.  The parties are in agreement that this matter should be transferred to the Federal Court of Australia so that the Federal Court can deal with all of the issues in dispute.  At the time of making the order to transfer the proceedings, I am also asked by both parties to make an order granting to the Applicant leave to file and serve an Amended Statement of Claim in the form that was provided on 29 July 2020.

The Court’s power to award costs

1. Part 21 of the Federal Circuit Court Rules 2001 (‘Rules’) deals with orders for costs.  Relevantly for the purposes of this application:

   a)Rule 21.02(1)(a) provides that an application for costs may be made at any stage in a proceeding;

   b)Rule 21.02(2)(d) permits the Court to set a time for the payment of costs, which may be before the proceeding is concluded;

   c)Rule 21.02(2)(a) permits the Court to set the amount of costs;

   d)Rule 21.04 provides that if the costs of a motion, application or other proceeding are reserved, the costs reserved follow the event unless the Court otherwise orders.

2. The principal proceeding is a proceeding commenced under the Act. Section 570 of the Act is therefore engaged. Section 570(1) relevantly provides that a party may be ordered by a court to pay costs incurred by another party only in accordance with subsection (2). Relevantly, subsection (2)(b) permits a costs order to be made only if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs.

3. I accept that the Rules permit me at this point to consider an application for costs, and to award costs. I also accept that the Rules permit the Court to order that costs be paid prior to the conclusion of the proceedings. Whether I do so appears, given the content of rule 21.02, to be a matter within my discretion. In the event I am persuaded to exercise that discretion, I then need to consider the other relevant rules of the Court, and of course, the application of section 570 of the Act to this case. I observe that, even if I am satisfied of the matters contemplated by section 570(2)(b), the Court retains a discretion as to whether costs should be awarded and the amount of costs to be awarded.

Consideration

1. The Respondents urge me to embark upon a consideration of whether section 570(2)(b) of the Act has been engaged, and if so, to exercise my discretion to award indemnity costs to them forthwith in the sum $148,247. The Respondents submit, inter alia, that they were put to significant cost in order to obtain an adequate pleading and, when it was finally received, it was an extensive document served on the day prior to the Strike Out Application being heard. They submit they should receive the indemnity costs outlined above, or at the very least, costs thrown away in connection with the hearing on 31 July 2020.

2. The Applicant submits that, inter alia, is not appropriate that any costs order be made at this time.  Rather, the preferable course is for costs to be reserved for consideration by the trial judge in the Federal Court after the substantive proceeding has been determined.  The Applicant says, further, that there is no basis for a costs order because the Respondents at all times were adequately aware of the case against them.

3. The substantive proceedings before the Court are extensive. SOC 4 comprises of some 74 pages. A defence to it is yet to be filed. There are then the proceedings in the Federal Court of Australia, which for obvious reasons, were not ventilated before me. It is, accordingly, very early in the substantive proceedings to consider the making of costs orders.

4. There is then the matter of section 570 of the Act. The purpose of section 570(2) of the Act was the subject of comment by Mortimer J in Ryan v Primesafe [2015] FCA 8 at paragraph [64]. Her Honour there stated, among other things, that the discretion conferred by section 570(2) should be exercised cautiously and that it is ‘an access to justice provision’.  I adopt Her Honour’s comments. 

5. Mortimer J’s comments in relation to access to justice take on additional significance when the circumstances of this case are looked at. First, as noted above, it is very early in this matter, given its nature and the issues in dispute, to consider making a costs order. Second, the amount of costs I am being asked to award, is extraordinary. The claimed indemnity costs are approximately $148,000. They have arisen in respect of the Strike Out Application only. They could only have been incurred since April/May 2020. On any view, that is a very significant amount of costs to have incurred in such a short period in respect of a Strike Out Application. Making an order at this point that some or all of these very significant claimed costs not only be paid, but be paid forthwith, when much of the litigation is still to run, let alone be determined, is the antithesis of the purpose of section 570 as described by Mortimer J.

6. There is then the fact that there are contemporaneous proceedings between these parties in the Federal Court.  The parties agreed that the proceeding before me should be transferred to the Federal Court.  I will make that order, given the nature of the proceedings before me, and what I understand to be the nature of the proceedings before the Federal Court.  What course the overall dispute between the parties takes from here will ultimately be a matter for them and Anastassiou J.  I am therefore being asked to rule on the question of costs without having a full appreciation of all of the matters in dispute between these parties, and without understanding the full scope of the litigation between them.

7. The Respondents answer to this is that the present costs question is discrete and relates to matters this Court has particular knowledge of, and that any final judgement will not be available for a substantial period of time.  The latter matter, it seems to me, is simply speculation.  It might equally be said that the matter will proceed more quickly before the Federal Court given the well-publicised delays that exist in this Court.  As to the costs question being discrete matters that this Court has particular knowledge of, I accept that the present controversy is fresh in my mind.  Against that, however, are the limitations I have identified earlier.  They include that I am not presently appraised on the entirety of the dispute between the parties, and I will not ultimately hear the matter.

8. For the reasons that I have set out above, I decline to consider the application for costs at this time.  I regard it as more appropriate that the question of costs be reserved for determination by the trial judge.

9. I note that much time in the hearing before me was devoted to whether, among other things, the requirements of section 570(2)(b) were satisfied, and whether the conduct of the Applicant enlivened my discretion to award costs. In reaching the conclusion above, I have endeavoured not to express any view about these matters. These and other matters ought to be considered by the trial judge in the Federal Court at the appropriate time.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 2 October 2020