Wang v Sceats

[2019] FCCA 487

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v SCEATS & ANOR [2019] FCCA 487

Catchwords:
PRACTICE & PROCEDURE – No order as to costs.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.13, 75

Fair Work Act 2009 (Cth), ss.340, 351, 361, 556, 570

Applicant: JINGDA WANG

First Respondent: JEANETTE SCEATS

Second Respondent: INSTYLE WATCHES PTY LTD

File Number: SYG 2481 of 2017

Judgment of: Judge Street

Hearing date: On the papers

Delivered at: Sydney

Delivered on: 8 March 2019

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. No order as to costs if made as to between the parties.

NOTES

1. The Court has considered the submissions and evidence pursuant to the orders made on 7 December 2018 and is not satisfied that an oral hearing is required.

2. The Court will deliver oral reasons for the above order made in chambers if a written request to do so is received within 14 days.

DATE OF ORDER: 20 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2481 of 2017

JINGDA WANG

Applicant

And

JEANETTE SCEATS

First Respondent

INSTYLE WATCHES PTY LTD

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings that were commenced within the Court’s jurisdiction under s 556 of the Fair Work Act 2009 (Cth) (“the Act”) on 3 August 2017, alleging adverse action contrary to s 340 of the Act, as well as discrimination in contravention of s 351 of the Act and wrongful dismissal.

2. On 30 November 2018, Smith J following a substantive hearing dismissed the application and made an order listing the matter for hearing on the question of costs under s 570 of the Act on 5 February 2019. These orders also permitted the parties to file written outlines of submissions prior to the hearing.

3. On 7 December 2018, Smith J made further orders vacating the hearing date and ordering that the question of costs be determined on the papers, and made an order that the parties serve on each other written submissions and the evidence on the question of costs by 21 January 2019.

4. An affidavit was filed on behalf of the respondents by Julie Kneebone on 21 January 2019, that identified correspondence between the parties, which included a without prejudice except as to costs letter of 5 September 2017, effectively offering the applicant the sum of $15,000 to compromise the matter, and a without prejudice letter dated 3 December 2017, effectively offering the applicant the sum of $50,000. The correspondence included the competing position maintained by the applicant that was sent by email on 5 December 2017, reflecting little willingness to compromise.

5. The correspondence included a letter dated 12 March 2018, in which the respondents effectively offered to compromise for the sum of $75,000. A further letter was sent on 11 April 2018 effectively offering to compromise in the sum of $100,000.  An email from the applicant dated 25 April 2018, indicated that the applicant’s compromise position had shifted and increased, reflecting little compromise. A further communication on behalf of the respondent to the applicant took issue with the position adopted by the applicant, and reopened the offer that was made on 12 March 2018 until close of business on 4 May 2018. The applicant’s response of 2 May identified a lack of willingness to compromise.

6. The respondents filed submissions dated 21 January 2019, which summarised the communications and contended that the applicant did not act reasonably and contended that the respondents were entitled to costs under s 570 of the Act because the applicant had no reasonable basis to bring the claim against the first respondent, and allegedly had no reasonable basis to bring the claim against the second respondent. The respondents contended that the applicant had no reasonable cause to institute the proceedings and it was unreasonable for the applicants to continue the proceedings once the respondents had served their evidence, and it was clear that the applicant would fail. The respondents also sought to rely upon an unreasonable refusal to accept settlement offers, by reason of which the respondents sought costs.

7. The applicant also filed submissions in which the applicant contended that the applicant did not institute the proceedings vexatiously or without reasonable cause, and that there was not any unreasonable act or omission by the applicant to cause the other party costs.

8. The scheme behind s 570 of the Act is one that, subject to the power identified in subsection (2), entrenches the principle that there should be no order for costs unless the requirements of s 570(2) of the Act are satisfied. The fact that the respondents succeeded in the proceedings does not establish that the proceedings were instituted vexatiously or without reasonable cause. Nor in the present case is the Court satisfied that the applicant’s refusal to accept what can be seen as generous settlement offers in hindsight should be characterised as an unreasonable act or omission that caused the respondents to incur the costs. While the making of the settlement offers are relevant and may give rise to grounds upon which a costs order can be made. The Court must be satisfied as to the requirements of s 570(2) of the Act before making a costs order.

9. The Court is not satisfied that the requirements of s 570(2) of the Act are met in the circumstances of present case. The Court has taken into account the reasons for judgment delivered by Smith J on 30 November 2018. Those reasons make clear that the Court accepted the evidence of the respondent over that of the applicant. There was a finding of the taking of adverse action and the Court took into account the presumption under s 361 of the Act in determining what was ultimately a credit issue. The Court is not in a position to conclude that if the applicant had succeeded the applicant may not have obtained relief in excess of the amount offered by the respondents. The Court is not satisfied that the proceedings were instituted against the respondent’s vexatiously or without reasonable cause. Further as the applicant may have obtained relief in excess of the amount offered if successful in all the circumstances of this case, the Court is not satisfied that the applicant engaged in an unreasonable act or omission that caused the other party incur costs.

10. On 20 February 2019, this Court made orders determining the matter as to costs on the papers, and consistent with s 75 of the Federal Circuit Court of Australia Act1999 (Cth), the Court made an order that there be no order as to costs as between the parties and noted that the Court would deliver oral reasons in support of the order made in chambers pursuant to s 13 of the Federal Circuit Court of Australia Act1999 (Cth), if a request to do so is received within 14 days. A request to deliver the oral reasons was received within the 14 day period and these are the reasons in support of the orders made in chambers on 20 February 2019.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019