FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vallette v Meneghello Law Pty Ltd [2024] FedCFamC2G 571
File number(s): BRG 134 of 2023 Judgment of: JUDGE EGAN Date of judgment: 27 June 2024 Catchwords: FAIR WORK – COSTS – Where the applicant filed an interlocutory application for summary judgement – where the hearing of the application was adjourned for a second time on the same basis as for the adjournment of the hearing on the first occasion, namely by reason of the unpreparedness of the respondents to present their arguments at the interlocutory hearing – where the failure of the respondents to again properly prepare for the hearing warranted an indemnity costs order. Legislation: Fair Work Act2009 (Cth) ss. 44, 45, 323, 545(2), 550(1) and 570(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 190 and 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r. 22.02 Superannuation Guarantee (Administration) Act 1992 (Cth) s. 31
Cases cited: Gray v Richards (No. 2) (2014) 89 ALJR 113
Re McJannett; Ex parte Australian Workers Union of Employees, Queensland (No. 2) (1997) 189 CLR 654
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Sabapathy v Jetstar Airways (No. 2) [2021] FCAFC 68
Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 26 June 2024 Date of hearing: 26 June 2024 Place: Brisbane Counsel for the Applicant: Mr S. Mackie Solicitor for the Applicant: Recover Legal Solicitor for the Respondents: Mr D. Meneghello ORDERS
BRG 134 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAYLEY MARIE VALLETTE
Applicant
AND: MENEGHELLO LAW PTY LTD
First Respondent
DANIEL OSVALDO MENEGHELLO
Second Respondent
CHARLENE MENEGHELLO
Third Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.The respondents pay the applicant’s costs of and incidental to the adjournment of the hearing on 26 June 2024, and the costs of today, on the indemnity basis, as agreed, or failing agreement, as assessed pursuant to the provisions of Rule 22.02(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 EGAN
INTRODUCTION
On 19 December 2023, the applicant filed an Amended Application in a proceeding seeking, inter alia, summary judgment in respect of the applicants claims for relief.
The hearing of that application was first listed on 4…
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- Case
- [2024] FedCFamC2G 571
- Decision Date
CaseChat Overview and Summary
The Court examined the legislative framework governing costs in civil proceedings, particularly the overarching purpose of the Federal Circuit and Family Court of Australia Act 2021, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The Court also referred to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, which provide that costs may be awarded at the discretion of the Court. In particular, Rule 22.02(1) states that the Court may award costs to a party if it considers it just to do so, taking into account all the circumstances of the case.
The Court held that the respondents' failure to prepare adequately for the hearing of the interlocutory application warranted an indemnity costs order. The Court noted that the respondents had been given multiple opportunities to prepare for the hearing, but had failed to do so on each occasion. The Court also noted that the respondents' conduct had unduly extended the time and expense of the litigation, which was inconsistent with the overarching purpose of the governing legislation. Accordingly, the Court exercised its discretion under Rule 22.02(1) to award indemnity costs to the applicant.
The Court made an order that Meneghello Law Pty Ltd pay the applicant's costs of and incidental to the interlocutory application on an indemnity basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
The Court has a wide discretion to make an order for costs pursuant to Rule 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The Court respectfully adopts what was said by the High Court in Gray v Richards (No. 2) (2014) 89 ALJR 113 at [2], which was as follows:‘[2] The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.’ In Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 at [46], it was said:‘[46] The interests of justice include considerations of the cost-effectiveness of litigation. Thus a court may conclude that a departure from the general rule is warranted where substantial issues are raised by the successful party which unduly extend the time and expense of litigation: A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27 at [6]-[11] (the Court). As counsel for Ms Walsh pointed out, the relevance of such considerations is highlighted by the obligation imposed upon a party and a party’s lawyer by subss 37N(1) and (2) respectively of the FCA Act to conduct proceedings in a way that is consistent with the overarching purpose in s 37M, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.’ As to the conduct of proceedings in this Court consistent with the overarching purpose of the governing legislation, ss. 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’) relevantly provide as follows:FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA ACT 2021 - SECT 190Overarching purpose of civil practice and procedure provisions(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes: according to law; and as quickly, inexpensively and efficiently as possibleNote 1: For civil practice and procedure provisions , in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.(1)Without limiting subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2); (b) the efficient use of the judicial and administrative resources available for the purposes of the Court(c) the efficient disposal of the Court's overall caseload;(d) the disposal of all proceedings in a timely manner;(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.(2)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.(3)The civil practice and procedure provisions , in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:(a) the Rules of Court;(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA ACT 2021 - SECT 191Parties to act consistently with the overarching purpose(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.(2)A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:(a) take account of the duty imposed on the party by subsection (1); and(b) assist the party to comply with the duty.(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:(a) the likely duration of the proceeding or part of the proceeding; and(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:(i) the costs that the lawyer will charge to the party; and(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.Note: Paragraph (b)--in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.(6)If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.