WILCZAK v ALPINE REFRIGERATION and Air Conditioning Pty Ltd (No 3)
[2006] FMCA 554
•8 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILCZAK v ALPINE REFRIGERATION & AIR CONDITIONING PTY LTD & ANOR (No 3) | [2006] FMCA 554 |
| TRADE PRACTICES – Indemnity costs. |
| Trade Practices Act 1974 (Cth), ss.51AC, 52, 53, 53B, 82, 87 Federal Magistrates Act 1999 (Cth), s.79 Federal Magistrates Court Rules 2001, r 21.02(2)(b) |
| Colgate Palmolive v Cussons (1993) 46 FCR 225 Trade Practices Commission v Nicholas Enterprises (1979) 42 FLR 213 Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 Preston v Preston [1982] All ER 41 John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1989) 81 ALR 397 Andrew v Barnes (1887) Ch D 133 J-Corp Pty Ltd v Australian Builders’ Labourers Federation Union of Workers Western Australian Branch (2) (1993) 46 IR Thors v Weekes (1989) 92 ALR 131 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991) Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) Messiter v Hutchinson (1987) 10 NSWLR 525 |
| Applicant: | ANNA WILCZAK |
| First Named Respondent: | ALPINE REFRIGERATION & AIR CONDITIONING PTY LTD |
| Second Named Respondent: | HARRY SISSANES |
| File number: | SYG 586 of 2003 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 23 February 2006 |
| Date of last submission: | 11 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Bahlmann Burke Lawyers |
ORDERS
(1)That pursuant to Rule 21.02(2)(b) of the Federal Magistrates Court Rules 2001 the applicant pay the respondent’s costs on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 586 of 2003
| ANNA WILCZAK |
Applicant
And
| ALPINE REFRIGERATION & AIR CONDITIONING PTY LTD |
First Respondent
| HARRY SISSANES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The respondent’s seek costs on an indemnity basis. I note that both parties were given an opportunity to file written submissions on that question. Only the respondent provided submissions.
The principal application was commenced in the Federal Court of Australia by application filed 10 March 2003 and subsequently transferred to this Court by Madgwick J. The application alleged that the respondent’s engaged in conduct in contravention of ss.51AC, 52, 53 and 53B of the Trade Practices Act 1974 (Cth). The applicant sought damages and declaratory relief under ss.82 and 87 of the Trade Practices Act and also sought relief under the accrued jurisdiction of the Court for negligence, breach of contract and also sought equitable compensation. Further, she sought punitive, exemplary damages and costs and interests.
The application was heard by Federal Magistrate Driver on 17 and 18 November 2003. The applicant appeared before his Honour unrepresented with the assistance of her partner, Philip Hardcastle. The respondents were represented. His Honour dismissed the application on 12 February 2004. The applicant appealed that decision and on 4 February 2005 her Honour Justice Branson dismissed the appeal other than the question of the applicant’s unpaid leave entitlements which was remitted back before this Court and heard by me. Branson J also ordered that the costs of the application including the hearing before Driver FM and the further hearing in relation to the leave entitlements issue be determined by this Court.
On 23 February 2006 I heard the claim in relation to unpaid leave entitlements and on 21 March 2006 I dismissed that claim and made no order as to costs arising from the leave entitlement proceedings as both parties were unrepresented. In doing so, I noted that the orders of Branson J still stood.
On 2 March 2005 the applicant sought special leave from the High Court to appeal the decision of Branson J which was dismissed by McHugh and Heydon JJ on 27 April 2005.
Costs
The Court’s power to award costs in non-family law proceedings arise from s.79 of the Federal Magistrates Act 1999 (Cth). Section 79 provides:
(1) This section does not apply to family law or child support proceedings.
(2) The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.
Section 79 invests a wide discretionary power to award costs. The Court’s discretion is unfettered but must be exercised judicially (Colgate Palmolive v Cussons (1993) 46 FCR 225 at [230], per Sheppard J; Trade Practices Commission v Nicholas Enterprises (1979) 42 FLR 213 at [219], per Fisher J; Re: Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at [152], per Black CJ).
The general rule as to costs is that the unsuccessful party pays the successful party’s costs on a party/party basis. However, there are circumstances where it is appropriate to depart from the rule.
In particular where there is some special or unusual feature in the case (Preston v Preston [1982] All ER 41 at [58], per Brandon LJ; Re: Wilcox at [152]; John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at [203], per Hill J; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1989) 81 ALR 397 at [400], per Woodward J); when justice in the case might so require (Andrew v Barnes (1887) Ch D 133 at [141], per Fry LJ); where the action or claim was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law (J-Corp Pty Ltd v Australian Builders’ Labourers Federation Union of Workers Western Australian Branch (2) (1993) 46 IR at [301-3], per French J; Fountain Selected Meats at [401]); irrelevant allegations of fraud (Thors v Weekes (1989) 92 ALR 131 at [152], per Gummow J); evidence of particular misconduct which causes loss of time for the Court and to other parties (Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991) at [8], per French J); the making of allegations which ought not to have been made or the undue prolongation of a case by groundless contentions (Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 54 March 1993) at [6], per Davies J) and finally an imprudent refusal of an offer to compromise (Messiter v Hutchinson (1987) 10 NSWLR 525, per Rogers J). Overall, the authorities make it clear that the question of whether indemnity costs should be awarded against a party is for the Court to assess in light of the particular facts of the case.
Having considered the authorities above and the findings reached by Federal Magistrate Driver I am satisfied that this is a case where an order for indemnity costs should be made. The applicant was wholly unsuccessful in her application before Driver FM. I accept that in part she was successful on appeal but only in relation to the claim for unpaid leave entitlements which was the subject of a re-hearing. I note however, a number of allegations and claims were made against the respondents which were not proven. The application involved extensive proceedings including discovery, subpoena of documents and hearings as well as appeals. I am further satisfied that the applicant has put the respondent to considerable expense and consumed a lot of the Court’s time and resources. I note the comments of his Honour, Driver FM at para [61] of his judgment:
In the pursuit of [her] claim the applicant has resisted the reasonable attempts by the respondents and the workers’ compensation insurer to get her back to the workplace. However not content with that claim, the applicant has brought this proceeding. It should never have been brought. The application had very poor prospects of success. It was pursued with venom, probably to put pressure on the respondents in relation to the workers’ compensation claim. The respondents have been put to completely unnecessary expense in responding to it. The Court’s process has been abused. The application should be dismissed with costs, to be assessed on an indemnity basis.
In all the circumstances I am of the view that it is appropriate to make an order for costs on an indemnity basis.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date:
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