United Voice v Brisbane Executive Security Teams Pty Ltd and Anor (No.2)

[2019] FCCA 1386

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE v BRISBANE EXECUTIVE SECURITY TEAMS PTY LTD & ANOR (No.2) [2019] FCCA 1386

Catchwords:
COSTS – Where Applicant unsuccessful – where costs follow the event – are indemnity costs justified – fixed costs order made.

Legislation:

Fair Work Act 2009 (Cth), s.570(2)

Applicant: UNITED VOICE

First Respondent:

Second Respondent:

BRISBANE EXECUTIVE SECURITY TEAMS PTY LTD

ANTHONY JAMES THOMAS

File Number: BRG 80 of 2017

Judgment of: Judge Vasta

Hearing date: 19 February 2019

Date of Last Submission: 19 February 2019

Delivered at: Brisbane

Delivered on: 19 February 2019

REPRESENTATION

Counsel for the Applicant: Mr R.E. Reed

Solicitors for the Applicant: United Voice

Counsel for the Respondents: Mr S.A. Mackie

Solicitors for the Respondents: HR Law

ORDERS

1. That the Applicant pay the cost of the First and Second Respondents’ on an indemnity basis from 6, 7 and 8 of November 2018 fixed in the sum of $16,130.00 (+ GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 80 of 2017

UNITED VOICE

Applicant

And

BRISBANE EXECUTIVE SECURITY TEAMS PTY LTD

First Respondent

ANTHONY JAMES THOMAS

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 8 November 2018, after a three-day trial, I dismissed the applications made by the Applicant for declarations, pecuniary penalties and compensation. 

2. By application in a case, filed on 6 December 2018, the Respondents have asked this Court to make an order for costs.

3. Section 570(2) of the Fair Work Act 2009 (Cth) (“the Act”) allows a Court to order costs against a party if:

   (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;…

   Those are the only relevant sub-subsections to s.570(2) of the Act for this matter.

4. The Respondent in the substantive matter argues, having regard to the evidence that the main witness, Mr Laidley, gave in this matter, that there was never going to be a successful prosecution of this matter,.  Counsel for the Respondent submits that if there had been proper and rigorous questioning by the Applicant of its own witness, such fact would have been easily discovered.

5. I am not so sure that that would have occurred.  It seems to me that Mr Laidley was the sort of witness who would say things that seem to benefit him, and it is only when the proverbial blowtorch was applied to the belly in the rigour of a courtroom by Mr Mackie, that he conceded that he did understand such meanings such as “code green” and he did make the admissions to Ms Donna Dunne.

6. I am also mindful that, if one put oneself into the shoes of the Applicant at that time, that the dismissal or (I will put it a different way) the disciplinary action taken against the Applicant was too coincidental with his launching proceedings in the Fair Work Commission to review the enterprise bargaining agreement. 

7. If one is solely looking at it from what the Applicant knew at the time, it would be quite easy to come to the conclusion that the two were interrelated. 

8. It was through looking at all of the evidence that was subsequently filed in this Court that one could actually see that there was just plain coincidence at work in this matter.

9. Therefore, I am not satisfied that at the time of the instigation of these proceedings, that the Applicants did so vexatiously or without reasonable cause.

10. I then turn to s.570(2)(b) of the Act and ask “were there unreasonable acts?” There are a number of unreasonable acts alleged by the Respondents in the substantive matter. These include:

    a)failing to agree to conciliation before a Registrar of the Court;

    b)rejecting a settlement offer sent on 18 December 2017;

    c)refusing an offer for private conciliation before a silk, with the full cost to be borne by the Respondents;

    d)refusing an offer of settlement for $15,000, paid in three monthly instalments, sent on 12 October 2018;

    e)then sending a counter-offer of $12,000 in compensation, but with the first respondent to admit contravening the Act, with any pecuniary penalties to be paid to the Applicant; and

    f)then refusing a counter-offer of settlement of $15,000, paid in three monthly instalments.

11. That was prior to the case being heard.  I have gone through the history of those settlement offers, and have taken them all into account.

12. Whilst the Respondents in the substantive position says that there does not seem to be any rhyme or reason as to why the Applicant would reject a $15,000 offer but then come back with a $12,000 offer, it seems to me that such a mentality is borne from a conviction by the Applicant that the Respondents were engaging in activities that were distinctly anti-union:  that is, keeping an enterprise bargaining agreement which, because of time, was now out of date and behind industry standards and behind the award, and, in effect, keeping the union out of any industrial discussions held around the operation of the business of the First Respondent.

13. Whilst that may have been an attitude of the Applicant, the question is whether that was reasonable.  It could well have been seen as reasonable up until the time that the main witness, Mr Laidley, stepped into the witness box.  This was very early on in the trial, certainly within the first hour of the trial. 

14. By then, the central plank of the arguments of the Applicant had really disappeared, but it seemed that there was still a determination that somehow the Respondents were anti-union, and that they needed to be brought to task. 

15. That attitude could not be justified if one were looking simply at the Respondents’ material, but, given that the main witness for the Applicant had actually just confirmed the central tenet of the Respondents’ defence, it seems to me that after that, for the Applicant not to have engaged in proper negotiations, given the history of the matter, was then unreasonable.

16. Therefore I am of the view that s.570(2)(b) has been met. The question is, “how should I exercise my discretion? “

17. I have come to the conclusion that I should order that the applicant pay the costs of the respondent for the three days of trial, and to pay them on an indemnity basis.

18. I make that conclusion for this reason:  that once Mr Laidley had made his concessions, it was totally unreasonable for this trial to have continued.  By continuing, it meant that the respondents were put to the cost of the next two days of trial, as well as all of the attendant worries, stress and other associated pressures that go with a trial, which occurred for the rest of day one.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 June 2019