WILLIAMS v Australasian Meat Industry Employee's Union (NSW Branch)

[2018] FCCA 553

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIAMS v AUSTRALASIAN MEAT INDUSTRY EMPLOYEE'S UNION (NSW BRANCH) [2018] FCCA 553

Catchwords:
INDUSTRIAL LAW – Fair Work Act2009 (Cth) – application for costs after Applicant filed a Notice of Discontinuance – s.570 of Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth), s.570

Applicant: DEIDRE WILLIAMS

Respondent : AUSTRALASIAN MEAT INDUSTRY EMPLOYEE'S UNION (NSW BRANCH)

File Number: SYG 3429 of 2016

Judgment of: Judge Dowdy

Hearing date: 2 March 2018

Delivered at: Sydney

Delivered on: 2 March 2018

REPRESENTATION

No appearance by or for the Applicant.

Counsel for the Respondent: Mr D. Mahendra of Counsel

Solicitors for the Respondent: Carroll & O'Dea Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Affidavit of Michael James Barnes sworn 14 February 2018 is marked Exhibit A.

2. The Affidavit of Michael James Barnes sworn 1 March 2018 is marked Exhibit B.

3. The Applicant is to pay to the Respondent costs in the amount of $14,476.50 (inclusive of the costs of the present application).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3429 of 2016

DEIDRE WILLIAMS

Applicant

And

AUSTRALASIAN MEAT INDUSTRY EMPLOYEE'S UNION (NSW BRANCH)

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. Before me this morning is an application by the Respondent for costs in relation to various aspects of the case since its inception.  The claim was brought in December 2016 and was before the Court on various occasions during 2017.  In the result, on 1 February 2018 the Applicant discontinued the proceeding.  It is in these circumstances that the Respondent appears today, through Mr Mahendra of Counsel, to seek various amounts for costs in relation to certain aspects of the proceeding.

2. I further record that yesterday afternoon my Deputy Associate rang the Applicant on her mobile number and spoke to her and the Applicant advised that she would not appear this morning in Court. The matter was called outside Court three times before the hearing commenced and she did not appear. Mr Mahendra relies upon the Affidavit of Mr Barnes sworn 1 March 2018, which will be marked Exhibit B, to prove that the Applicant was well aware of the application for costs today.

Application for Costs

1. On the application for costs itself Mr Mahendra relies on the Affidavit of Mr Barnes sworn 14 February 2018, which will be marked Exhibit A, and his Written Submissions filed in this Court on 14 February 2018.  I am of the view that, in a general sense, Ms Williams as Applicant has acted unreasonably throughout the litigation in a number of respects and has caused the Respondent to incur costs unnecessarily and unreasonably. In itself there is unreasonableness about commencing a proceeding with solicitors, as was the case here, proceeding for over a year to propound the case, and then suddenly abandoning it without any explanation.

2. I now turn to deal with the various aspects of the matter with respect to the costs that are sought by the Respondent, bearing in mind and having regard to s.570 of the Fair Work Act 2009 (Cth).

Calderbank Letter

1. First, there is a request for indemnity costs in the sum of $2,670 for the costs following the expiry of a Calderbank letter dated 4 August 2017 which offered to settle the proceeding for $25,000.  No response by the Applicant to that reasonable offer was ever made.  It could not be said to be an offer that was meaningless or was merely made to seek to justify an order for indemnity costs. It was not responded to and expired at 5pm on 13 September 2017.

2. In my view, the continuation of the proceeding after the expiry of the Calderbank letter on that date created additional costs for the Respondent, and I consider that the Applicant was imprudent and unreasonable in not accepting the offer, particularly in the light of the fact that now, having discontinued the case, she obtains nothing at all from bringing the proceeding. I am going to order that the sum of $2,670 be paid as claimed by the Respondent.

Political Opinion Discrimination

1. Then there is the matter of the vexatious and unreasonable reliance by the Applicant on a claim for political opinion discrimination, which I am satisfied, based on [27] – [30] of Mr Barnes’ main affidavit of 14 February 2018 and the submissions of Mr Mahendra, was never able to be legally and properly brought and maintained. And so by putting forward this issue and continuing to allow it to be put forward without withdrawing it, even though Carroll & O’Dea Lawyers who were acting for the Respondent had pointed out on a number of occasions that the claim should be withdrawn as not reasonably maintainable, the Applicant should pay the costs claimed in relation to this issue of $1,800.

Application Made Out of Time

1. Then comes the issue relating to the Application being brought in this Court out of time by one day.  It is clear from the authorities referred to by Mr Mahendra that the Applicant needed an extension of time of one day and the authorities show that the onus is on the Applicant in that situation to seek an extension of time, rather than for the Respondent to put on a motion to strike out the proceeding. There is a body of correspondence where it was pointed out to the Applicant by Carroll & O’Dea Lawyers that she was out of time in commencing the proceeding and inviting, in my view in reasonable terms, that the matter should be dealt with in a certain way and holding out the prospect that the Respondent would consent to the extension as long as an application for extension was made in proper form.

2. However, it was not.  There was a body of correspondence between the parties on this issue but in the end I ordered by consent on 17 May 2017 that the time for the filing of the Application be extended to 5 December 2016, and this issue then went away. The Respondent, through Mr Mahendra, referred to the body of correspondence on this issue. It is not, in my view, an extensive body of correspondence. The amount that is sought for the correspondence, including the amount for Counsel, seems to me to be unreasonable and I indicated to Mr Mahendra that he had the option of either making a further application based on proper evidence, because at the moment the evidence was very rolled up, general, unhelpful and uninformative, or alternatively that I would make an assessment based on my own knowledge of legal costs and what is reasonable, which I think I am entitled to do and in a position to do. And he has taken that course.  In my view the reasonable amount for costs going to this issue is the sum of $4,500.

Inadequate Pleadings

1. That leaves the final aspect, being in relation to whether or not the Applicant should have filed a statement of claim or points of claim and in relation to inadequate particulars. Again, there is a body of correspondence between the parties. It seems to me that the Applicant, in conjunction with her then solicitors, adopted unreasonable stances in relation to this issue, which caused an increase of costs and I consider that the Applicant and her lawyers were acting unreasonably in causing the Respondent to incur those costs.  The amount sought in relation to that issue is the sum of $2,805.  I regard that amount as reasonable in these circumstances.

Today’s Application for Costs

1. That leaves the costs of today’s application for costs and Mr Mahendra is happy to take the scale amount for an application of this nature, being an interlocutory application, in the sum of $2,701.50.

Conclusion

1. In relation to the Respondent’s application for costs made today, and an order for which will finally conclude this proceeding, I order that, inclusive of the scale amount for costs of the present application for costs, the Applicant do pay to the Respondent costs in the amount of $14,476.50.

2. I note that this costs order is additional to the order that I have already made on 2 February 2018 that the Applicant pay costs in the amount of $6,852.70 in connection with the Respondent’s Application in a Case filed on 23 November 2017.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  8 May 2018