Titan v Weatherford CSG Drilling Pty Ltd
[2014] FCCA 2342
•8 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TITAN v WEATHERFORD CSG DRILLING PTY LTD | [2014] FCCA 2342 |
| Catchwords: INDUSTRIAL LAW – Costs – effect of Calderbank offer. |
| Legislation: Fair Work Act 2009 (Cth), ss.77, 97, 117, 340, 341, 361, 570 |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Jones v Dunkel (1959) 101 CLR 298 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Manly Council v Byrne [2004] NSWCA 227 Re Gear (Deceased) [1964] Qd R 528 Re Hope; Ex parte Carter (1985) 59 ALR 609 Stratton Finance Pty Ltd v Webb (2014) FCAFC 110 The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32 |
| Applicant: | ROHAN JAMES TITAN |
| Respondent: | WEATHERFORD CSG DRILLING PTY LTD |
| File Number: | BRG 1151 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing dates: | 29 September to 1 October 2014 |
| Date of Last Submission: | 1 October 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 8 October 2014 |
REPRESENTATION
| The applicant appeared on his own behalf |
| Solicitors for the Applicant: | McCullough Robertson Lawyers |
ORDERS
That the application be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis with the applicant to pay half of the respondent’s assessed costs to 7 March 2014 and the respondent’s assessed costs of the application from that date.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 1151 of 2013
| ROHAN JAMES TITAN |
Applicant
And
| WEATHERFORD CSG DRILLING PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
There are none so blind as those who will not see and that is the applicant in this case. The applicant seeks relief by way of declarations that the respondent took adverse action against him by terminating his employment in order to prevent him from exercising a workplace right, that was by making a complaint concerning his employment, namely a complaint against his superior, David Hill, who he alleges bullied him and/or physically punished him and/or that the respondent took adverse action against him by terminating his employment because he exercised his workplace right to take paid personal leave due to his suffering a personal injury of a kind prescribed under the Fair Work Regulations 2009 (Cth) (“FW Regulations”) and/or to prevent him from exercising such a right.
The respondent denies the applicant’s allegations. It accepts it took adverse action against the applicant, but says it did so solely because he was an inadequate employee and for no other reason, including that the applicant had made a complaint about David Hill or to prevent him from doing so, or because the applicant took personal leave related to an injury he sustained on the worksite.
So far as the relevant history is concerned, the applicant was employed by the respondent from 19 August 2013 until his termination on 25 September, a period of little over five weeks. He was employed as a roustabout. It was a base level position with the job purpose being described as:
“Safe and proper rigging and slinging of all loads lifted and moved by all cranes and other lifting equipment. Also general maintenance work to include cleaning, chipping and painting the rig and equipment as well as housekeeping.”
He was to report to the assistant driller. It appeared from the evidence that from the first week of his employment he undertook general and induction training, which addressed matters specific to the manner of the respondent’s operations, including occupational health and safety training, heat and stress and fatigue management training, dealing with breaks and other related matters. His employment proper commenced the following week at the respondent’s site in near Western Queensland.
The shift roster was 14 days on and 14 days off. Given the timings, it appears he only had worked about nine days on site before a decision was made to dismiss him following the events which are detailed in this proceeding. At that time, he was employed on a probationary basis with employment terminable by either party to the employment contract on one week’s notice, a matter the applicant agreed to under cross-examination. The probation period of six months had barely commenced before the respondent determined to dismiss him.
It was significant that before he was offered employment the applicant was subject to a medical assessment on 8 August 2013. As part of that process, he was required to complete a questionnaire. Most of the questionnaire is irrelevant to the proceeding, however, one question and answer has significance. One question was in the following terms:
“Do you suffer from or have you ever suffered from (a) a mental condition (including anxiety, depression, severe or abnormal stress reaction); or (b) sleep disorders?”
He responded in the negative to that question. For reasons which are explored below, this answer, which was plainly incorrect, informs my opening observation in these reasons.
It is not in contest that the applicant was put to work on the respondent’s rig, which was located in a remote place in near Western Queensland about two hours from Chinchilla. He was employed under the supervision of Mr David Hill, the rig manager, although he was the second manager to whom the applicant reported. Mr Hill was responsible for erecting and controlling all of the operational functions of the rig, including safety drilling, moving, logistics and maintenance. His duties included people management, including taking action on performance improvement issues with employees which involved also addressing disciplinary action and dealing with human resources issues on occasions as were required. That included responsibility for roustabouts employed on the rig such as the applicant.
When the applicant first commenced employment at the rig, another rig manager was responsible for the rig. However, it appears that a short time after the applicant commenced his employment with the respondent, the earlier rig manager was replaced by Mr Hill. Mr Hill was the relevant rig manager and supervisor of the rig at all material times to this application. Much of what followed from this point is in dispute. The applicant does not accept much of that which was alleged against him by Mr Hill, upon whose advice those further up the chain acted to terminate the applicant.
Their evidence cannot be reconciled by reference to misunderstanding or interpretation. In this case, one version is simply wrong. For reasons which follow, I prefer the version provided by Mr Hill. He impressed me as a calm and measured man. He had no material interest in the proceeding. From his evidence, I formed the view that he was a capable and honest supervisor. He was conscious of his responsibilities to ensure his worksite was safe and the nature of the risks of the worksite were appropriately addressed by all employees on the site. I am satisfied he had no axe to grind concerning the applicant and I have no reason to conclude that this remained otherwise than the case, despite his patience being sorely tested by the applicant through the short period of the applicant’s employment.
Though the applicant says that Mr Hill’s action is merely a foil to distract both the employer and the court from the complaints of bullying made by the applicant against him, I do not accept there is any basis for those complaints. To that extent, it could be said that Mr Hill did have some motive to embellish his evidence, however I do not accept he did so and I reject the applicant’s complaints, which are detailed below. Mr Hill made appropriate concessions when challenged on relevant points of detail. For instance, when he was challenged about the issue concerning the applicant’s shoe size, Mr Hill readily conceded he may have been wrong with his recollection of the detail of the conversation he had with the applicant at the time. Though I am satisfied he was not mistaken to its effect, namely that the applicant was wearing a boot one size too large. Further, I do have no difficulty accepting his evidence that, notwithstanding a concession concerning the detail, his evidence was accurate in respect of the nature and circumstances of counselling which he afforded the applicant. As addressed below, I accept he made, realistically and drew objectively reasonable conclusions about the nature of the applicant’s personality and certain traits that the applicant demonstrated, which I, too, observed in his demeanour in the court. In particular, Mr Hill’s evidence that the applicant was aggressive, argumentative and unreceptive to advice.
If the tone and manner of the applicant, as evidenced before me, were replicated before Mr Hill, I accept that Mr Hill would properly have been offended by the applicant’s conduct and concluded his conduct was generally insubordinate and/or demonstrated an inability for the applicant to work cohesively and harmoniously with others and not be a risk to both himself and others on the worksite. In contrast, the applicant himself has much interest in the application. He claims a sizeable amount by way of penalties and compensation. However, the more telling quality which informs my view of him is his plain lack of insight.
That matter was best objectively evidenced by his question and answer to the question about his prior mental condition in the health declaration and also other matters related to him in his termination interview, exhibit 13, which I have listened to and which forms part of the proceeding. Concerning the mental health issue, there was evidence that the applicant had been a party to two proceedings in the five years preceding these events where his mental health had been squarely in issue.
In the first case, the applicant was seeking a review of a Q-COMP decision concerning the review unit’s decision to exclude his claim for WorkCover, pursuant to the WorkCover Queensland Act 1996 (Cth) (“WC Act”), by determining various stressors complained of by the applicant as productive of a psychiatric/psychological disorder, then evident, were excluded from the description of injury by operation of s.34(5) of the WC Act on the basis that the relevant management action was both reasonable and taken in a reasonable way.
I should note at this point that in those proceedings and the subsequent proceedings that I will refer to, the applicant is noted as Rohan James Wyllie. It’s not in contest that he changed his name by deed poll from Rohan James Wyllie to Rohan James Titan – the title that now appears in this application. The relevant condition in the WorkCover claim had been diagnosed as paranoid psychosis. I note the following from the judgment, because they have parallels with behaviour observed by others in this case. In particular, these observations were made at page 12:
“In this respect Dr Ziukelis said he believed it was highly likely that the series of stressful events, described to him by the Appellant, ultimately led to the onset of paranoid psychosis. Dr Ziukelis said "the paranoid element, essentially, is one where the preoccupation is with - of matters of a persecutory kind. Psychosis means severe symptoms in keeping with loss … of touch with reality." (transcript day 2, pgs 21-22).”
Subsequently, at page 17, the judgment proceeded:
“The evidence of Ms Dodds, Ms Christie, Mr Tesovic and Mr Turner, respectively, was that Stellar [the relevant employer] takes the RESPECT policy [a policy of the employer] very seriously. That policy records "Swearing and foul language will not be tolerated. It is unprofessional and offensive. Any occurrences of this behaviour will be addressed by the manager. Repeated occurrences will be managed through Corrective Action.".
The record of the formal counselling issued to the Appellant on 6 April 2005 discloses that at least two other consultants complained to management that the Appellant used inappropriate language towards them and that the argument he was engaged in became aggressive. They complained that during the argument the Appellant had used the "F" word and told people they were stupid and naïve. The record of the Appellant's "responses and concerns" in the formal counselling document (Exhibit 8) shows the Appellant admitted using the "F" word. It also records that whilst he acknowledged the language used was inappropriate he nonetheless attempted to defend it on the basis it was commonly used on the floor by others.
Further, it observed:
“It is not relevant that the Appellant believed the incident only warranted a one-on-one discussion between he and the manager and that a formal counselling was not warranted. "It is the reality of the employer's conduct and not the employee's perception of it which must be taken into account" (Prizeman v Q-COMP 180 QGIG 481) in deciding whether the relevant management action was reasonable.”
An appeal against this decision was dismissed. Observations in the appeal judgment were not relevant to the material facts and findings made at first instance.
In the second case, troubling aspects of his personality, which were evident in this case, were also apparent. Whatever the aetiology of his condition. There he was appealing to the Queensland Court of Appeal against a conviction and sentence for an offence against the Criminal Code (Qld) concerning a breach of privacy. The facts are best summarised in the judgment of Holmes JA, commencing at [5].
“The applicant shared his house with two women and a man who had responded to his advertisement for tenants. On the facts as alleged against the applicant at sentence, the tenants became suspicious that he was doing something untoward when they heard noises from the garage and sounds as if the applicant were moving about in the roof cavity. Exploring the house one day in his absence, they found pin holes in the walls and roof, and a camera mounted in the roof cavity above one of the women’s bedrooms. There were signs of someone having spent time in the roof cavity: there were carpet tiles put down and cigarette butts lying about.”
After some negotiations, the applicant pleaded not guilty to a number of charges and guilty to one remaining charge. Originally, he had pleaded not guilty to all charges, but after a conference with his legal representatives on the day set for trial, the plea was changed to one of guilty on that count. On appeal, the applicant complained that he was pressured into a change of plea by his defence counsel. Holmes JA, with whom the others on the court agreed, noted at [9]:
“At the conference which took place on the day set for trial, the applicant confirmed to his lawyers certain instructions as to matters of fact: he installed the camera and the camera mounts, with associated pin holes in the walls, and put in a wire for an externally mounted camera which was not connected to his computer. What appeared to be a wire connected to the ceiling camera was, he claimed, a fly lead. He had not laid the other wires. He set up this surveillance system because he believed that there was a conspiracy against him. He did not do anything further, because his male tenant had told him that he had served a gaol sentence for grievous bodily harm, which frightened him out of proceeding with any filming. That meant, he told his barrister, that he had desisted, as was proved by the fact that the camera had no power cord.
The court noted at [11] that:
“The applicant’s thesis was that the commission of the crime of recording in breach of privacy began with the recording or viewing of film illicitly taken, and since he had not got that far, having desisted through fear of the male tenant, he could not have committed an attempt.”
That was the point the appellant ran himself before the Court of Appeal.
The Court of Appeal noted at [11] that Mr Byrne, who then represented him before the District Court at first instance, “disagreed with that view and declined to argue it before the Full Court.” It was noted:
“The applicant makes particular complaint of the fact that, in the conference, Mr Byrne told him that if he wanted to run the case, he could run it; he, Mr Byrne, would not run it in the way the applicant proposed. He told the applicant he did not know what he was doing and should talk to his parents; for that purpose he left the applicant alone with his parents for a period. The applicant’s parents urged him to continue to retain Mr Byrne.”
The court continued at [12]:
“On his return to the conference, Mr Byrne reiterated that he would not be bound by the applicant’s ideas of how the case should be run. He advised him that the positioning of the camera was sufficient to amount to an attempt and that if the applicant gave evidence according to his instructions he would be found guilty. The alternative was to put the Crown to proof; Mr Byrne thought the prospects of success, taking that course, were five per cent or less. The chances were that if the trial were to run for the proposed three days it would attract media attention.
[13] Mr Byrne told the applicant that on a plea of guilty he could explain to the court that the applicant was under psychiatric care and suffered from a delusional belief in a conspiracy which had led him to set up the surveillance system.”
It should be noted that the applicant did not seek, in the proceedings before either the District Court or the Court of Appeal to ascribe his plea of guilty to any mental illness.
Of particular note, are the remarks of her Honour, commencing at [16], where she noted:
“The conduct of the applicant’s counsel in this case was entirely proper. He did not threaten the applicant with withdrawal from the case if he did not plead guilty; instead, he refused to advance unmeritorious submissions, while making it clear that he was prepared to run the trial on arguments he thought tenable, although with little hope of success. He gave his client strong advice as to his poor prospects of acquittal, which seems, in the light of what was discovered on the property and the lack of any viable defence in the matters raised by the applicant, to have been well founded. The applicant may regret accepting that advice, but there is nothing to suggest that he was not fully aware of what he was doing or what would result when he entered a plea of guilty.”
This case is of relevant note because he was convicted and a special condition of his probation order was that he submit to medical and/or psychiatric and/or psychological treatment. Furthermore, as Holmes JA noted at [16], “his interchanges with his legal representatives suggest that he was quite capable of asserting himself and standing his ground; there is no hint of intimidation on his part in his repeated challenges to his lawyers.” A matter, I might note, is, to my mind, reinforced by the fact that he ran that appeal himself.
He seeks to distinguish his psychiatric condition on the basis that it was substance-induced; that is, he never had a mental condition, which appears unlikely given both those cases. Notwithstanding his submissions, such either constitutes self-denial on his own part or a lack of insight in to his own behaviours. If it were not enough that the observations of his personality referred to in those cases were evident to Mr Hill in this instance, or to those on the exit interview identified in exhibit 13, they were also evident in the applicant’s manner before this court. His conduct before this court was aggressive, querulous, argumentative and disrespectful. The applicant simply can’t see this or, if and when he does, he dismisses it as being appropriate in each instance.
I do not for a moment make any finding about the current state of his mental health, nor, for that matter, any finding about the state of his mental health at the time of these events, that is in August and September 2013. However, in my view, the facts demonstrate a lack of insight by the applicant into his behaviours. The causative basis of such lack of insight – that is, personality or psychiatric – is not material. It leaves me to conclude that I ought to adopt a particularly cautious approach to any evidence he gave which is in contest and, accordingly, I do so.
The applicant also sought to put the credit of the respondent’s other witness, namely Mr Heidrich, into issue. Mr Heidrich was the respondent’s operations manager. There was nothing about his testimony that ought to have given rise to controversy. He was simply the officer authorised to give effect to a termination. The matter of the applicant’s termination was put up to him for decision. He considered the material on its face and he made his decision. There was nothing about the manner in which he approached that task to suggest that he was informed or motivated by any mala fides or other improper motive.
I have no reason to believe that he was not a wholly truthful and reliable witness. I accept his evidence that he terminated the applicant because of reports up the chain to him that the applicant’s performance was inadequate. Further, I accept his positive deposition that he did not terminate the applicant either wholly or in part because the applicant made a complaint about Mr Hill or was going to make a complaint about Mr Hill or to stop him from doing so. Further, I accept his evidence that he did not dismiss him because he had taken personal leave or proposed to take personal leave to allow time for his blisters to heal.
Beyond the earlier facts noted, the relevant chronology proceeded as follows. The applicant was assigned to a rig. Initially, he was supervised by Mr Danny Tanic for a couple of days before commencing to work under the supervision of Mr Hill. Mr Hill and the applicant first met on 17 September when Mr Hill and the applicant shared a couple of hours together in a vehicle driving from Chinchilla to the rig. Mr Hill states that following the prestart check on the vehicle, the applicant explained that he had an idea to reduce heat stress. The applicant told him the idea consisted of a battery pack and cooling fans and Mr Hill says he indicated to him that while it was an interesting idea it was not intrinsically safe or spark-proof and that he would not be allowed such a device within certain zones on the lease site.
Mr Hill says that, upon being told this, the applicant became almost immediately aggressive and would not concede that his idea may need to be modified. At the time Mr Hill thought that his aggressive and frustrated tone was unusual and disproportionate in the context of the conversation, but, in any event, put it to one side. Mr Hill noted that he found the applicant was very ambitious and wanted to advance quickly to the level of driller. He says that after the incident on 17 September, he spoke with the applicant and concluded that he was more interested in a driller’s position than training and learning the basics in normal duties as a leasehand – the position for which he had been employed.
He says he particularly recalled an incident on or about 21 September 2013, when the applicant approached him in his office and, during the course of the conversation, the applicant expressed to him frustrations he had about his job and became quite demonstrative, throwing his arms around, emphasising his words as he spoke. Mr Hill thought that the applicant was trying to be intimidating and indicated to him that he should not come to his office and be so aggressive. He also indicated words to the effect that “he should not abuse [him].”
During the same conversation, he said the applicant indicated that he was having difficulty getting others to assist him. Mr Hill says that he indicated to the applicant that he had received four verbal comments from others complaining that when he had sought assistance from others, he had either abused them – that is, the applicant had either abused them or told them that they were wrong or told them that he knew better or some combination of the three. Mr Hill says that he indicated that while he accepted that this may have occurred, the applicant may have been unconscious of his behaviour.
He informed the applicant of the persons from whom the complaints came, namely Messrs Holden, Fitzgerald, Martin and Connor. Mr Hill also stated he had received a number of informal complaints where others expressed similar frustrations and experiences concerning his argumentative attitude. Mr Hill says that on 22 September, he indicated to Mr John Bromage, the field superintendent, his frustrations in dealing with the applicant’s incidents of poor performance and rudeness and provided a memo to him detailing the complaints. He stated that each of the complaints contained common complaints about the applicant’s conduct.
He noted one complaint contained a list from a QGC representative who complained that the applicant started arguing with him and badmouthing the driller for making him disturb a meeting in order to retrieve a task risk analysis. Mr Hill says that he was dumbfounded by the conduct and so, subsequently, spoke to the applicant about his poor attitude. Mr Hill’s observations were illustrated by a task that the applicant was directed to undertake, which was a precipitant to the applicant’s complaint against the respondent.
That task concerned an event on 19 September 2013 when the decommissioning of the rig at the lease was being undertaken. At that time, there was a necessity, as part of the decommissioning process, for the immediate adjoining land to be left in a clean and tidy condition and that all the litter from the respondent’s operations be removed. Mr Hill noted that the removal of litter is generally one of the responsibilities assigned to a leasehand, that is somebody in the applicant’s position. He says he also recalled on that occasion that a representative of QGC had asked, during an early morning safety meeting, to check immediately outside the lease as often rubbish blows off the lease on to the neighbouring property. That instruction was significant, given that QGC was the respondent’s client.
Mr Hill says that he directed the applicant, who also attended that safety meeting, to check the perimeter of the lease to ensure that the lease was in a clean and tidy condition. He says he directed the applicant to walk around the lease and to collect any litter, as part of the decommissioning process. He subsequently went away, but when he returned shortly after to inspect progress on the work being conducted by the mechanic and the applicant, he said the applicant approached him and indicated that he had completed his task of collecting rubbish.
He says that upon the applicant telling him that, he had a cursory look around the lease and noted there was visible rubbish remaining on the site. He says he indicated this to the applicant and asked that he complete the task of removing rubbish. He says he walked around the lease with the applicant to demonstrate how to scan and find possible litter. He says that during this walk around he confirmed there remained quite a quantity of rubbish on the lease and its surrounds. He says at this point the applicant asked him how many times he had to walk around the lease to ensure the rubbish had been removed. He says that he can recall indicating to the applicant words to the effect that there was no set number of times, nor was there any strict policy. Rather, it was a question of ensuring that there was no rubbish remaining. He says he told the applicant he should use his own judgment.
Mr Hill say he recalls that he thought the applicant was upset at having to do this task, particularly as he queried why he was being assigned it. He says he also recalled that as the applicant was insistent on him telling how many times he should walk around the site to ensure that the rubbish was removed. Mr Hill says he said in answer to the request words to the effect that “around five times should be more than enough to ensure that the boundary and the areas just outside the boundary were free from rubbish.” Coming to that view, he was conscious of the perimeter of the lease being something in the order of three to 400 metres. Much of this evidence is in dispute.
In his evidence, the applicant said this: Mr Hill overstepped his authority. He failed to follow policy and process and prematurely punished rather than verbally counselled him and he did so by punishing him physically by ordering him to immediate walk around the outside of the perimeter of the drilling lease five times. The applicant says the circumstances in which the five laps were walked by him, where it was in direct sunlight and at a temperature of approximately 32 degrees and that the terrain was such that it was difficult to navigate his footing due to the proliferation of grassy tufts approximately six inches high.
The applicant contended that there was no legitimate work-related reason for him to be walking the extra five laps of the lease. He says that, additionally, Mr Hill physically departed the lease while he was about halfway through the walking and did not return to the lease. In other words, he says, Mr Hill failed in his duty of care to ensure that he was not placed in a dangerous situation as a result of his complying with his order, a matter which the applicant took to be punishment.
I simply do not accept the applicant’s evidence on this matter. The nature of the task assigned was both appropriate and reasonable. The applicant clearly misconstrued a relatively straightforward direction. I accept Mr Hill’s evidence that the direction was in the nature of a request and that it posed no risk to the applicant and that he would have expected the applicant to stop and take appropriate, remedial action had any OHS risk been evidenced, as OH&S is an ongoing consideration in the workplace. I also accept that Mr Hill mentioned walking the perimeter five times in the nature of a suggestion, expressed quantitatively out of frustration because the applicant couldn’t or refused to exercise some judgment in respect of what, on its face, appears to have been a very straightforward task and direction.
I am satisfied that he was not directed, in a positive sense, to walk the perimeter five times and most certainly do not accept any suggestion that the request or instruction was one meant as punishment. Not only can no reasonable motive for punishment be identified, but, in any event, such capricious conduct did not appear consistent with the very impression I formed of Mr Hill’s character. He did not impress me as a bully or to have an overbearing or vindictive character. He impressed me as a thoughtful and pensive man and not given to vindictive behaviour. He was conscious of this responsibilities and, as I have said, would not expect any member of his team to do any task he would not do himself and, particularly, not to expose himself or any member of his team to expose themselves to any risk of injury or harm.
Further, that he reasonably expected every team member, including the applicant, would have known, from their induction training, the workplace health and safety rights duties and responsibilities and that had the applicant considered himself to be at risk at any time, he ought to have taken appropriate action in accordance with that training. In this case, that would have included taking water and appropriate breaks.
It is not in issue that the applicant appears to have suffered from blisters because of this activity. He complained that over the following two days his blisters became worse and intolerable, yet he continued working on and avoided seeking the necessary medical attention. Ultimately, he did seek medical attention and brought the matter to Mr Hill’s attention. He recalled the applicant bringing the blisters to his attention, stating in his evidence that he recalled it happening on 20 September 2013. He said the applicant informed him that he had sustained blisters on his feet. He says he indicated to him that he should attend the medical centre for treatment of the blisters and he recalled making a diary entry in his diary on that day.
He says he further recalls that the applicant informed him that he was wearing size 11 boots, despite having a size 10 foot size. He says he recalls him indicating to him that there were no size 10 boots available to him at the time of issue and, accordingly, he took the larger size. Mr Hill says that he thought this was strange, because he believed that the respondent routinely kept a relevant supply and stock of all boots from sizes 7 to 13 at all times. He says he also recalls the applicant showing him socks that he was wearing at the time and that these socks were similar to sport socks or business socks, which were inappropriate for wearing with boots.
He says he informed the applicant he should be wearing thick work socks and, given that he had the wrong size boots, he should perhaps wear two pairs of those socks to compensate for the size of the boots until he could get a correct size or stop the job and report the issue as had been made clear to him during the training process, as well as during daily meetings and task safety meetings. He says accordingly he made arrangements for the applicant to be driven to the medical centre. He understands that the applicant did attend the medical centre and received subsequent information from the nurse practitioner, which fortified his belief in that regard.
By reason of the report to him from the nurse practitioner, Mr Hill says that he subsequently took issue with the applicant about his behaviour because of a complaint received from the nurse practitioner. He said that from his observation, the applicant was unrepentant and unapologetic for his behaviour. He says he explained to the applicant that the behaviour was inappropriate, as he was representing the defendant company when he was present before the nurse practitioner, who I take to have been associated with a third party.
Mr Hill says that on or about 22 September, he confirmed that he received contact from the applicant indicating to him that his blisters had burst and become raw and, accordingly, he indicated to the applicant he should return home till his blisters had healed to the point where it was safe for him to return to work. He subsequently made arrangements for the applicant to return home. The applicant disagreed with this evidence, denying he had been disagreeable towards the nurse and, by inference, required counselling by Mr Hill and that the blisters were caused by the wrong sized boots and inappropriate socks.
I prefer Mr Hill’s evidence on these matters. As he stated, his recollection was impressed by his knowledge of the general availability of boots through the logistics chain. In respect of the precise boot sizing issue, he recalled the applicant having a boot which he admitted was one size too big. Undoubtedly, this would have caused blisters when coupled with a lengthy walking over rough terrain and perhaps exacerbated by inappropriate sock wear. I have no reason not to accept Mr Hill’s evidence that he sought to counsel the applicant about his behaviour towards the nurse. His denial, in my view, is consistent with my view that he simply lacks insight into his poor social skills. I have no doubt he engaged in a socially inappropriate exchange, which gave rise to the need for Mr Hill to counsel him as he did. I do not accept the basis for counselling was an invention by Mr Hill.
It is not in dispute that he was subsequently sent home and his next dealings with the respondent occurred on 30 September and a meeting between the applicant and the human resources of the respondent at which time his employment was terminated. The applicant secretly recorded that meeting and a copy of that recording is exhibit 13. The behaviours complained of by others and which were evidenced before the court, such as talking over people, being unnecessarily argumentative, querulous and refusing to accept advice rather than take it as constructive criticism and endlessly revisiting matters are all evidenced in that 40 minute exchange. It is apparent from the recording that the respondent’s officers sought to deal professionally with the applicant.
It is from those circumstances that the applicant contends the respondent contravened the Fair Work Act 2009 (Cth) (“the FW Act”). In the introduction, I broadly detailed the complaints. There are two. The first concerned the taking of adverse action (a matter conceded by the respondent) because the applicant took personal leave. The respondent denies the causative allegation. The complaint is actually framed on the basis that he took, “Paid personal leave”. s.97(a) FW Act relevantly provides:
“An employee may take paid personal/carer’s leave if the leave is taken:
a)because the employee is not fit for work because of a personal illness of personal injury affecting the employee.”
The applicant also contended that, in this context, he had suffered an injury prescribed under r.6.04(3) FW Regulations. s.79(a) FW Act provides an employee may take paid personal leave if the leave is taken because the employee is not fit for work because of a personal injury affecting him. FW regulation 6.04(3) deals with injuries of a kind that an employee is required to notify and substantiate in the context of termination: see s.77(2) FW Act. It has no relevance in this instance.
Although the applicant complains he was unlawfully terminated, the adverse action has been taken in the context concerning personal leave. I’m uncertain why the applicant makes the allegation concerning the consequences of alleged breach of a workplace right, namely unlawful termination as assertive of that breach. I proceed on the basis that this complaint is simply founded in the applicant’s complaint that the adverse action was taken because the applicant took personal leave and not otherwise.
The applicant’s contention was, in summary, that the court must find for him because of the presumption of s.361 FW Act. Significantly, for the applicant, that requires a consideration of the causal factors required by s.340(1)(b) FW Act that the adverse action is taken because the applicant had sought to exercise a workplace right. In The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32, the Chief Justice and Crennan J stated at [44] and [45]:
“ [44] The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.23Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker24 or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
Similar observations can be found per Gummow and Hayne JJ at [127] and Heydon J at [149]. The effect of that authority is to place clearly upon the employer the onus to place direct evidence of the reasons why the decision maker took adverse action. The evidence of the employer on this matter was essentially that of Mr Hill. Given the respondent’s difficulties with Mr Titan, reported by Mr Hill up the chain to the appropriate authorities, it is clear that when Mr Heidrich came to make his decision, he considered the applicant to be an unsuitable employee, based upon the reports to him by Mr Hill.
If that were not enough, Mr Hill, in an email forwarded to management at the time, observed:
·“Rowan [sic] does not have the ability to follow the most basic instruction without argumentative comments or willingness [sic].
·While explaining how to conduct a task, Rowan [sic] will question your knowledge and suggests like he knows better in an unacceptable manor [sic].
·Rowan [sic] is not able to conduct the most basic hazard identification or follows the TOFS program [sic].
·Other staff members have highlighted his rudeness and insubordination when he is assigned a task. I have also experienced this myself.
·I have noticed a significant drop in moral [sic] from our current crew members while working with Rowan [sic].
·I have had multiple complaints from our client about his poor attitude and rudeness.
·I have, on two occasions, had to council Rowan [sic] about being a team player, not abusing, insulting or being argumentative towards others while being instructed or supervised. Even then he was disagreeing and arguing with me on how I am inaccurate. After much persistence and mentoring, he could start to understand. He responded in a positive and willing manner and then reverted to his previous behaviours.
·Rowan [sic] struggles with conforming to the required tasks of his position. From my observations all the manual labour tasks he attempts push him to the limits of his capabilities.
·Rowan [sic] walked in on a weekly safety meeting to find a TRA (which was ok) Rowan [sic] spoke negatively about his driller in front of a crew, a company man, myself, Geo and senior field safety advisor.
·As a Rig manager I have observed that for his and other peer’s [sic] safety, Rowan [sic] is not suitable working on a drilling rig.
Rowan [sic] has failed to comply with the following job description requirements:
·Has to maintain good relations with rig crew and make sure understanding or bad communications not develop within the people working on the rig.
…
·Ability to communicate effectively at all levels and assist in the effective management of personnel and operations.
…
·Good, clear communication skills.
…
·Personable and approachable person.”
As noted, Mr Hill considered that the applicant was not suitable for working on a rig. The applicant did not accept these criticisms and others, which were included in that note and which I have not, for the sake brevity and unnecessary argument, restated. Simply put, the applicant was considered to lack the sufficient basic social skills, such as a capacity to communicate and work cohesively in a team environment in a remote location. From my assessment of him, I have no difficulty in concluding that this was indeed the sole and operative reason for his termination. There was, in my view, no other reason at least reported up the chain.
The ultimate decision-maker was Mr Heidrich. Mr Heidrich acted upon the advice he received from Mr Hill, which advice I accept as not only reasonable, but accurate. Mr Heidrich, in exercising his judgment, of course, did more than simply perform a rubber-stamping function. He considered the advice and acted upon the advice of his subordinate. It is important to note that in doing so, as he observed in his evidence, his only reason for terminating the applicant was due to the applicant’s inadequate performance, a conclusion he reached on the basis of those who reported to him. He did not do so because of the prospect of a complaint about David Hill or others, and/or to stop the applicant making such a complaint, nor did he do so because he, either wholly or in part, was concerned that the applicant took leave to allow blisters on his feet.
In that regard, two things need to be remembered. First, the decision to terminate the employment was not a decision for Mr Hill. It was a decision for those further up the chain. Accordingly, the negative factors, that is the question of the complaint and/or the taking of leave, were matters not for Mr Hill, but rather for Mr Heidrich to depose to and he has deposed to those matters. It follows in light of that evidence the respondent has discharged the onus placed upon it to demonstrate that there was no causal link between the adverse action and the applicant’s right to take leave.
I should note in passing and in respect of this matter, one further matter requires addressing. It will be relevant later on to the issue of costs. The term, “workplace right”, is defined in s.341 of the Fair Work Act (supra) in the following terms:
A person has a workplace right if the person is entitled to the benefit of or has a responsibility under a workplace law, workplace instrument or order made by an industrial body…
In this instance, the alleged workplace right in respect of s.96 FW Act provides that for each year of service with an employer, and employee’s entitled to 10 days of paid personal carer’s leave. At the time of these events, the applicant had not accrued even one day’s entitlement to paid personal leave. s.97 FW Act addresses only the question of paid personal leave, not personal leave generally, which, of course, is not addressed by the legislation or any relevant industrial instrument. Accordingly, unpaid personal leave does not fall within the definition of a workplace right. I have made those observations for completeness, as the matter will be relevant to the issue of costs.
The first ground had a second part and that is that the applicant also contended that the adverse action was taken to prevent him from exercising a workplace right of taking in the future personal leave. For reasons that have been provided earlier, I am satisfied that the respondent had discharged its onus in establishing that that was not a reasonable part of the reason for the adverse action. I’m satisfied that the sole and operative reason was the reason that I have identified earlier.
The second substantive allegation was that the respondent took adverse action to prevent the applicant from exercising his workplace right, that was by stopping the applicant from making a complaint about his employment and the complaint about bullying and/or physical punishment, allegedly meted out to him by Mr Hill. I have earlier addressed this matter. It concerns the applicant being requested to undertake a clean-up around the site perimeter. First, if necessary, I restate that I accept Mr Hill’s evidence that the task set was a proper and reasonable task and that the task properly fell within the job description of the tasks to be undertaken by the applicant.
The request by Mr Hill, directed to the applicant, to undertake the task was not bullying and nor did it constitute punishment. There was no direction to walk five times around the site. It was stated, by way of guidance, to the applicant, who appeared to display an inability to judge the matter for himself of what was reasonably required to execute the task, that a figure of five circumnavigations would be probably be sufficient. I might note that the suggestion was made at a point when he had already not properly completed the task.
I note that at all times the applicant was able to avail himself of any number of breaks reasonably required to enable him to execute the task safely. Insight into the applicant’s view of these events can be found in his own statutory declaration where he says:
My intuition now has me leaning towards believing that some of the possible attitudes adopted by David in respect of myself may have been along the lines of –
· Seeing myself as somewhat of an adversary and as a result and need to exercise dominance over myself [sic].
· A general desire to oppose my goals of career progression due to his non approval of my not having done the hard yards.
Those views of myself [sic] appear to have manifested itself in his conduct in the morning of the day on or around Thursday the 19th September [sic] whereby he engaged in conduct that can only be described as using his senior position to blatantly and deliberately bully myself [sic] in the workplace.
In simple terms, what occurred is that while in the presence of Matthew Cooper (HSE officer) and Daniel Goodsen (mechanic), David overstepped his authority, failed to follow policy and process and prematurely punished, rather than verbally counseled [sic] me and did so punish me ‘physically’ by ordering me to immediately walk around the outside perimeter of the lease 5 times.
The circumstances in which the five laps were walked by myself [sic] were that it was in direct sunlight and a temperature of approximately 32 degrees. The terrain was such that it was difficult to navigate my footing due to the proliferation of grassy tufts, approximately 6 inches high.
Bacause [sic] I had to in fact walk a total of six laps due to reasons explained later within this statement I walked approximately 4.8KM without a rest.
During the walking of the six laps of the lease, I developed large blisters on both my feets [sic] heels and at the base of both feets [sic] big toes where they join the foot.
I also became extremely overheated and dehydrated…
I accept Mr Hill’s evidence that he did not draw up this minute and make his recommendation – that is, in respect of the applicant’s suitability – because he was fearful of a complaint or because he wanted to prevent the applicant making a complaint. As he stated, he had no basis to believe a complaint would be made. However, even if I were wrong on the matter, I do not find that the basis for his recommendation was motivated by any reason outside those expressed in his minute of 22 September and he was certainly not motivated by any of the matters which the applicant believes motivated him, as indicated in the applicant’s own statutory declaration.
For completeness, I note the applicant’s complaints about some practical jokes that were played upon him, principally involving requests by his co-workers requiring the applicant to fetch and bring fictional tools, such as a, “heavy weight (wait) for the long reamer”, and the, “one hour weight (wait)”, and the, “two hour weight (wait)”. Mr Hill dealt with the issue appropriately by advising the applicant to ignore the jokes and informing him that he would speak with those who were seeking to play the practical jokes about such behaviours, which, in fact, he subsequently did.
Likewise, I do not accept as credible complaints by the applicant that staff at the respondent have engaged in some form of conspiracy to suppress any complaint by the applicant of bullying on its worksite, which he contends were directed to him. Not only am I satisfied that the respondent didn’t take adverse action against the applicant in contravention of the Fair Work Act, but the respondent was within its rights in terminating the applicant. The applicant was employed six weeks earlier. He was just into his six month probationary period of employment. The respondent didn’t have to give him a reason for termination. They were well within their rights to terminate him, which they did in accordance with s.117(2) FW Act by paying him out his one week’s notice. The termination was lawful.
I make those remarks particularly because of submissions that are made by the applicant. He focused particularly upon an absence of counselling, which, I might note, I also reject, given that evidence of Mr Hill about the manner in which he sought to counsel the applicant about his inappropriate behaviours.
I should, for completeness, also make the following remarks about other evidence and submissions made by the respondent. Generally, throughout the course of the trial, the applicant complained about the respondent’s failure to assist him by refusing to provide personal details of persons the applicant wanted to have available at the trial. There is no need to pass further observation as to this complaint other than to note the obvious privacy concerns and respondent’s privacy obligations. It could be contended, but it wasn’t, that the respondent ought to have followed up the applicant’s request and done more, for instance to seek privacy releases, however, that ignores the adversarial nature of litigation.
If the applicant had identified the persons as being relevant to the prosecution of his application, the onus was upon him to make such inquiries or conduct such investigations as permissible to identify and, in due course, by using the appropriate means to secure those witnesses for trial. I note in that regard that he sought to have 13 subpoenas issued from the registry and the Registrar declined to issue the subpoenas on the basis of relevance.
That complaint leads into the next and most persistent complaint by the applicant and a source of submissions by him concerning those persons. In summary, he contends that an adverse inference ought be drawn against the respondent for its failure to produce those witnesses. He relied upon the principle in Jones v Dunkel (1959) 101 CLR 298. Respectfully, he misunderstands the principle for which that authority is commonly cited and the basis upon which a foundation for such a submission is made.
The submission was addressed in respect to the following witnesses: Messrs Woodford, Bradley, Holden, Fitzgerald and Martin, they being employees of the respondent who were appointed as his workplace mentors and workmates. Mr Danny Tanic, who was the first supervisor, and all the other witnesses to the events in forming Mr Hill’s opinion, that is Messrs Cooper and Goodsen and Connor. There was also the QGC employee at the meeting of 22 September, who remains unidentified, and Mr Hayden, the nurse.
The general principle of the rule in Jones v Dunkel (supra) is summarised at [1215] of Cross on Evidence[1] in the following terms:
“[The rule in Jones v Dunkel] can be summarised thus: First, unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case. The rule can operate against parties not bearing the burden of proof and parties which do bear it as well.9 The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered: the details of this condition, so far as elucidated by the cases, are considered below.
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.”
[1]J D Heydon, LexisNexis, Cross on Evidence (at 28 October 2014) [1215].
The author continues:
“Secondly, the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken
But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule does not create any admission… And if the case of a party who fails to call a witness is otherwise proved, the inference that the absent witness would not assist the party's case does not detract from the proof.”
And that, of course, is the point in this case.
“Fifthly, the rule does not operate to require a party to give merely cumulative evidence. If five people attended a relevant meeting and some are called, no Jones v Dunkel inference can normally arise in respect of those who are not: the rule does not compel time to be wasted by calling unnecessary witnesses.”
Again, another point in this instance.
“…the rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness.”
Those matters are further illustrated and explained by the Full Court of the Supreme Court of New South Wales in Manly Council v Byrne [2004] NSWCA 227 and by the Full Court of the Federal Court in Morley v ASIC (2010) 274 ALR 205 at page 322, [634].
Here, the evidence of Mr Hill was that he considered the applicant an unsuitable employee based upon his own assessment. No doubt, his care to make that assessment was informed by others who made complaints to him and who the applicant now complains were not called by the respondent. However, each of those persons were low-level employees. There was nothing to suggest that they would not have been available to the applicant if he had correctly subpoenaed them. The respondent, for its part, didn’t need to call them to prove its claim and to do so would have been repetitive. In my view, there was no basis for a Jones v Dunkel (supra) inference and, in any event, certainly not of the type of inference advanced by the applicant, mainly that the evidence would have been adverse to the respondent’s case.
The other submission made was that the court was bound to accept the applicant’s evidence where it was uncontradicted and that is with respect to the respondent’s failure to call the evidence of the other third party witness such as the nurse, fellow employees and others, who the applicant says he got on famously with, contrary to the reports to Mr Hill. As explained to the applicant at trial, the hearsay complaints received by Mr Hill and/or considered by Mr Heidrich were not accepted for their truth. The evidence was accepted only as evidence of complaints. What was acted upon was the evidence of Mr Hill, which concerned his own impressions and observations. I note that the applicant challenges the substance of these complaints, however the fact that the respondent did not call witnesses to counter every evidentiary contest does not leave the court in a position where it must accept the unchallenged evidence of a witness, in this case the applicant.
In Re Hope; Ex parte Carter (1985) 59 ALR 609, the court, considering uncontested evidence, made this observation at page 611:
“Counsel for the applicant contends that her uncontradicted evidence of the common intention that existed between herself and the bankrupt as to the transfer must be accepted by the court as conclusive.
Uncontradicted evidence was sometimes given this operation in the older cases but the position is that a court in an appropriate case is not obliged to accept such evidence.”
A number of authorities are cited in that context, in particular Re Gear (Deceased) [1964] Qd R 528. In that case, Hart J said at [525]:
“Whether uncontradicted testimony should be accepted or not, in my opinion, must depend on all the circumstances of the case, including its inherent probability and the possibility of calling evidence in denial.”
The effect of the applicant’s uncontradicted evidence is that he was not disagreeable, querulous, argumentative, rude, et cetera. The applicant’s conduct in this proceeding proved these not to be the fact. I do not accept his uncontradicted evidence.
Finally, in terms of damages, in view of my finding, the respondent lawfully terminated the applicant and the applicant has not entitlement to damages or other compensation under the Fair Work Act (supra). That also follows from my view that the principal application brought by the applicant ought be dismissed.
That leads me to the matter of costs. I should note, just for completeness, notwithstanding the fact that there was an expectation that the applicant was going to appear today, he has not appeared. He knows the matter is on. He has provided written submissions, which have been considered. At the hearing, I informed the parties that I would defer hearing on the matter of costs until I delivered my reasons.
I will start by observing s.570 of the Fair Work Act (supra). Relevantly, it provides that:
“570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (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”
As I have noted, the proceeding is in two parts. The first part concerns an application for contravention based upon adverse action following the exercise of a workplace right. In this instance, the relevant workplace right alleged was a right to paid carer’s and/or personal leave. The applicant was wholly unsuccessful in respect of that right, for reasons that I have earlier outlined. It follows that in respect of that right, it can be properly said that I am satisfied that the court can order costs against the applicant, because I am satisfied that it’s the applicant’s unreasonable act or omission that caused the other party, that is the respondent, to incur costs: s.570(2)(a) FW Act. Those costs being the costs relevant to that part of the proceeding.
In coming to that view, I am conscious of the observations of Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, where at pages 264-265 his Honour made this observation in respect of an identical predecessor measure:
It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. 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 proceeding lacks a reasonable cause.
As in that case, I, too, have come to the view that I see no discretionary reason to withhold such an order, at least in respect of that part of the proceeding. It simply had no prospects on the agreed facts. So far as the second limb of the applicant’s application is concerned, that is the adverse action alleged in the context of the bullying complaint, that is a matter which did have at least a foundation in its allegation, but was determined against the applicant on the basis of a contest of facts. However, I note that in this case on 21 February 2014, that is some six months before the trial, the solicitors for the respondent forwarded to the applicant an offer on a without prejudice save as to costs basis. That offer is now exhibit 17.
The offer was clearly bettered by the judgment, which has now been delivered, and it follows that in that context, consideration must be given to whether or not, an order will be made pursuant to s.570(2)(b) FW Act, that is, because the court is satisfied the applicant’s unreasonable act or omission caused the other party to incur costs.
In making that observation, I’m conscious of the Full Court’s observations in Stratton Finance Pty Ltd v Webb (2014) FCAFC 110. The effect of that decision is that a Calderbank offer, while relevant, requires some caution, as the Full Court observed:
[80] Caution should be exercised as to how a Calderbank offer, even a generous one, is viewed in such circumstances. Calderbank letters presuppose what might be called a “costs jurisdiction“, in contrast to the usual rule in FW Act claims. To group together contractual and FW Act claims in an offer may permit the conclusion that the refusal of the offer was unwise, even unreasonable, but it does not follow that such is an unreasonable act or omission, for the purposes of s.570(2).
In that case, the Full Court’s decision was that the conduct of the applicant, leaving to one side the Calderbank letter, was unreasonable in the sense intended by s.570(2) of the Fair Work Act (supra). It noted there was no attempt to explain the failure to pay what the statute required; the agreement on its face was for a relationship of employment; the failure to keep records exacerbated the costs and difficulties of proof; the position of the respondent there was recalcitrant to the last minute and contrary to the views of the Fair Work Ombudsman. In that instance, the applicant was put to significant cost to enforce basic rights and so, accordingly, the court there was prepared to endorse the decision of the primary Judge to award indemnity costs.
While I’m mindful that these proceedings are always expensive on the part of respondents, particularly when you have difficult employees and even though the employee in this instance plainly lacked insight into his own behaviours, I don’t think it’s necessarily appropriate to consider awarding indemnity costs. I’m conscious of the principles that inform the award of indemnity costs, such as are expressed in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. I’m conscious that this is, indeed, a generous offer and which only demonstrates the foolhardiness of the applicant in his refusal to accept it, but still, ultimately, as the Full Court notes, costs in this jurisdiction ought to be considered principally from the perspective of it being a non-costs jurisdiction.
It follows that while I will award costs, I will not award costs on the indemnity basis.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 25 November 2014
Key Legal Topics
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Employment Law
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Civil Procedure
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Breach
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Costs
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