Woolston v Aurous Ltd (Nundah Activity Centre)
[2019] FCCA 1847
•3 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOOLSTON v AUROUS LTD (NUNDAH ACTIVITY CENTRE) | [2019] FCCA 1847 |
| Catchwords: EMPLOYMENT LAW – Employment relationship – ascertaining existence and nature of relationship – intention of parties. EMPLOYMENT LAW – Employment relationship – ascertaining existence and nature of relationship – consideration. EMPLOYMENT LAW – Employment relationship – ascertaining existence and nature of relationship – particular relationships – other cases – volunteer. INDUSTRIAL LAW – Commonwealth – workplace relationships – employment status – whether employee. HIGH COURT AND FEDERAL COURT – Federal Circuit Court – Procedure – costs. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342(1), 351, 548(1), 548(1A), 548(5), 570, 772 Australian Human Rights Commission Act 1986 (Cth), ss.46P, 46PO |
| Cases cited: Ashby v Slipper (No.2) [2014] FCAFC 67 Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 Ryan v Primesafe [2015] FCA 8 |
| Applicant: | LORETTA WOOLSTON |
| Respondent: | AUROUS LTD (NUNDAH ACTIVITY CENTRE) |
| File Number: | BRG 1324 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 June 2019 |
| Date of Last Submission: | 10 June 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 3 July 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Barnes |
| Solicitors for the Respondent: | Kennedys (Australasia) Pty Ltd |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 the initiating application filed on 27 December, 2018 be dismissed;
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1324 of 2018
| LORETTA WOOLSTON |
Applicant
And
| AUROUS LTD (NUNDAH ACTIVITY CENTRE) |
Respondent
REASONS FOR JUDGMENT
The respondent applies to summarily dismiss the applicant’s claim pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules2001. The determinative issue for the present application is whether the obligations arising from the Fair Work Act 2009 (Cth) identified by the applicant and which she claims have been breached by the respondent were owed by the respondent to her in her capacity as a voluntary worker for the respondent.
For the reasons that follow, I have concluded that the applicant has no reasonable prospects of successfully prosecuting her application in respect of any of the grounds upon which she relies. Her application must be dismissed.
The approach to this application
The Court may give judgment for the respondent against the applicant in relation to the whole of the applicant’s proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding: s.17A of the Act and FCCR 13.10(a).
Six principles are said to guide the exercise of the power to grant summary judgment pursuant to the s.31A of the Federal Court of Australia Act 1976: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 a [124] – [132]. The principles applicable to that section are equally applicable to s.17A of the Federal Circuit Court Act: Prior v Wood [2017] FCA 193 at [16] – [24]. Adopting those principles to the present case, they may be stated as follows:
a)First, a less stringent test for the grant of summary judgment is prescribed by the statutory formula in s.17A than those applicable under earlier regimes. Parliament’s purpose, in enacting the section, was to strengthen the Court’s power to dispose of unmeritorious matters and to strengthen the Court’s power to manage proceedings, thus assisting in reducing cost and delay: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [45]; Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] and PZ Cussons (International) Limited v Rosa Dora Imports Pty Ltd [2007] FCA 1642 at [13].
b)Second, the assessment of reasonable prospects involves the following steps:
i)identification of the cause of action pleaded;
ii)identification of the pleaded facts said to give rise to that cause of action;
iii)a review of the evidence (if any) tendered in support of the claim for judgment;
iv)identification of the defence pleaded;
v)identification of any facts pleaded which are said to give rise to the defence; and
vi)a review of the evidence (if any) tendered in defence of the claim.
c)Third, the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success. However, once the moving party has established a prima facie case to that effect, the opposing party must respond by pointing to specific factual or evidentiary disputes which make a trial necessary. General denials will not be a sufficient basis for resisting summary judgment.
d)Fourth, the decision to grant summary judgment is made as a question of law and reviewed as such by an appellate court. The word “may” is used in an “empowering” sense rather than as denoting the exercise of a discretion.
e)Fifthly, where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that the proceedings will have no prospect of success.
f)Sixth, in discerning whether a real issue of fact exists, the Court must draw all reasonable inferences in favour of the non-moving party.
The applicant’s proceeding
In her initiating application entitled “Application – Fair Work Division”, the applicant expresses her case to be one commenced in the Court’s jurisdiction under the Fair Work Act 2009 (Cth). She also elected for the proceedings to be dealt with under the Court’s small claims procedures. The orders she seeks are set out in the claim filed with her application. I will come to those shortly. The grounds of her application are expressed in the following terms:
1. Discrimination on the grounds of social origin – (adverse action) section 351 Fairwork Act 2009 & Australian Human Rights Commission Act 1986 section 3 & section 772 (unfair dismissal) FW Act
In her Form 2 “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” filed with her Application – Fair Work Division, the applicant specifies in “Part G – Contravention(s) alleged”, the following:
Fair Work Act 2009
Section 351 (Adverse Action)
Section 772 (Unfair dismissal)
Australian Human Rights Commission Act 1986
Section 3
Discriminated Against because of ‘Social origin’ –Newstart volunteer deemed unprotected by law
–treated differently to 2 paid workers–may have had volunteer insurance claim cancelled?
The applicant’s claims are centred on an allegation that she was dismissed from her volunteer position with the respondent in September, 2018. In the affidavits filed by her in the proceedings (on 13 May and 5 June, 2019) it seems that she might also be suggesting that the adverse action taken against her took the form of bullying and discrimination because of her “social origin” arising from her status as a “mandatory Centrelink volunteer”.
In Part H of her Form 2 Claim, the applicant specifies the relief that she seeks against the respondent for the contraventions she alleges. The only relief that she claims is the imposition of a pecuniary penalty on the respondent and an order that the penalty be paid to her.
The respondent opposes the principal application and argues for its summary dismissal. Apart from taking issue with the applicant’s characterisation of her treatment by the respondent’s employees, the respondent argues that the applicant’s case must fail because on her own case, and as a matter of incontrovertible fact, she was a volunteer and never an employee of the respondent. The duties that the applicant claims were contravened by the respondent were not owed to her because she was not an employee. The respondent argues that such duties are only owed to employees.
Jurisdiction
A statutory court such as the Federal Circuit Court must always satisfy itself that it has jurisdiction to deal with the proceedings brought before it and that the jurisdiction has been regularly invoked.
Prima facie, the application is one which is within the Court’s Fair Work jurisdiction. Filed with the applicant’s form 2 is a certificate issued by a Fair Work Commissioner on 19 December, 2018 pursuant to s.368 of the Fair Work Act. The certificate records that:
An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Loretta Woolston alleging she was dismissed by Nundah Activity Centre in contravention of Part 3-1 of the Act.
The Court’s Fair Work jurisdiction has been regularly invoked. Arguably however, the applicant also appears to make a claim pursuant to Australian Human Rights Commission Act 1986. That claim appears to be in addition to her claim arising from an alleged contravention of s.351 of the Fair Work Act. To the extent that she makes such a claim (and it is not at all clear that she does), that claim cannot succeed because this Court’s jurisdiction under the Human Rights Commission Act has not been regularly invoked. The applicant does not appear to have made a complaint to the Australian Human Rights Commission as provided for in that Act (see s.46P of the Act). Nor does she appear to have a certificate issued under s.46PO of that Act – a necessary prerequisite before commencement of proceedings in this Court seeking relief under that Act. Moreover, the relief that she claims in the proceedings is not relief which is available in respect of contraventions of the Human Rights Commission Act.
I have determined this application on the basis that the applicant’s claim is for relief pursuant to the Fair Work Act only.
Small claims procedures
By s.548 of the Fair Work Act, proceedings are to be dealt with as small claims proceedings under that section if the applicant applies “for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court”, the order relates to an amount referred to in s.548(1A) and the applicant elects to have the small claims procedure to apply to the proceedings. The type of amounts referred to in s.548(1A) are:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
One of the consequences of having the claim determined using the small claims procedures is that a party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the Court: s.548(5) of the Fair Work Act. The respondent appeared by lawyers and did not seek the leave of the Court to do so.
However, leave was not required. Here, the only relief sought by the applicant is the imposition of a pecuniary penalty on the respondent for the contraventions alleged by the applicant. Leaving aside for the moment the availability of that relief to the applicant for some of the contraventions alleged, the pursuit of a pecuniary penalty removes the proceedings from the grasp of s.548 of the Fair Work Act. That would be so even if she also sought orders that related to an amount referred to in s.548(1A) of the Act in addition to the pecuniary penalty orders.
The evidence
The respondent relied upon an affidavit by Ms Sarah Xu the executive officer of the respondent. According to her affidavit, the respondent operates the Nundah Activity Centre. The NAC is a “community-based centre” that provides a wide range of recreational, social, community care, meal delivery, transport, allied health and other services to “seniors”. The respondent employs four full-time employees and 17 part-time employees. In addition, the respondent has approximately 150 volunteers who donate their services to NAC.
On 19 September 2017, the applicant submitted a “Volunteer Sign Up Form” to the NAC. That form had a number of parts to it. It required the applicant to provide certain particulars and amongst other things, required the applicant to give her consent to a “police check”. The form enabled the applicant to indicate a preference for the type of work she undertook for NAC. In that part of the application form headed with the instruction “Briefly explain why you want to work for us” the applicant wrote in:
NEWSTART VOLUNTEER COMPLIANCE FOR OVER 55’S
On page 8 of the application form appeared the following:
VOLUNTEER RIGHTS AND RESPONSIBILITIES
As a NAC volunteer you have the right to: • Be linked to others undertaking similar roles and valued as a team members • Be provided with information about the Volunteer role you have been engaged to undertake • Be offered the opportunity to attend information sessions • Receive a Position Description (PD) for the role • Not be exploited • know to whom you are accountable • Be Informed of any change of circumstances as required • Receive clear and concise written instructions • Have complaints and concerns addressed • Receive information on the duty of care requirements where applicable • Be reimbursed for out of pocket expenses, if requested • Be respected and supported • Work in a safe and healthy environment • Say no to unacceptable tasks • Be covered by insurance
The applicant’s case is that she was a volunteer who performed work for the respondent between 19 September, 2017 and 21 September, 2018. She described herself as a “mandatory volunteer”. She says that she was required by Centrelink to carry out work for the purposes of being able to access certain social security entitlements. Thus, she suggested that she had no choice but to engage in the relevant work that she did for the respondent. She did, however, have a choice about the organisation with which she performed any voluntary work. The applicant does not suggest that she was engaged as an employee by the respondent or that she was to be remunerated in any way by the respondent for the work that she did for it.
On 14 September, 2018 there was an incident between the applicant and an employee of the respondent. The incident was investigated by the respondent and a workplace incident and accident report was prepared. According to the applicant’s evidence, the outcome of the investigation was that the applicant was reminded to follow directions of employees and both the applicant and the employee involved were reminded to communicate respectfully with all personnel. The respondent says that no action was taken against the applicant.
On 21 September, 2018 there was an incident between the applicant and another employee of the respondent. That incident too was investigated and the outcome of the investigation was that all personnel were directed to engage in remedial training with respect of workplace interactions.
The applicant asserts she was dismissed by the respondent on 21 September, 2018. She also asserts that throughout her engagement at the respondent’s workplace she was treated differently to other employees. The respondent asserts that the applicant was not dismissed from her position. It is noteworthy that the applicant deposes that she attended the respondent’s premises on 2 October and 19 October, 2018 at which time she says that reinstatement of her to her previous position was discussed.
The applicant annexes to her affidavit, an email from Mr Don Rudd the respondent’s general manager. The email relevantly provided, “if you wish to continue to volunteer with Aurous, please indicate your availability to attend an induction centre”. The respondent says that the email was in relation to an induction procedure necessitated by the change of name and business structure of the respondent’s business dated 10 October, 2018.
Reasonable prospects
The fundamental issue upon which this summary dismissal application stands or falls is whether the applicant, as a matter of law, was owed the duties and obligations that she identifies the respondent having breached and thereby giving her a right to relief under the Fair Work Act. There is a factual dispute between the parties about whether the applicant’s engagement was terminated as she alleges, but that matter is not amenable to resolution on this application. It should more properly be resolved following a trial of the proceedings, if the proceedings otherwise withstands the present summary dismissal application.
The applicant’s claims arise under ss.340, 351 and 772 of the Fair Work Act. Relevantly, s.340 proscribes a person from taking adverse action against another person because that other person has a workplace right or has or has not exercised a workplace right. For the purposes of this section, adverse action is said to be taken by a person against another person if the first person takes one of the forms of conduct identified in column 2 in the table set out in s.342(1) of the Act. To attract the description of adverse action the relevant conduct must be carried out by a person of a particular character, that is to say the person must be an employer, a prospective employer or a person who has entered or who proposes to enter into a contract for services with an independent contractor, an employee, an independent contractor or an officer or member of an industrial association. Further, the relevant conduct must be carried out in respect of or against a person who also possesses a particular character, namely an employee, a prospective employee, an independent contractor or a prospective independent contractor.
Similarly, the proscription in s.351 of the Fair Work Act applies between an employer and employee. Relevantly, s.351 provides:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
So too, s.772(1) of the Fair Work Act. That section subsection proscribes the termination of an employee’s employment because of the social origin of the employee. Subsection 772(1) relevantly provides:
772 Employment not to be terminated on certain grounds
(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
…
(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
The first two identified claims arise under Part 3-1 of the Fair Work Act. Her unlawful termination claim arises under Part 6-4 of the Fair Work Act. The obligations and duties that the applicant alleges were breached by the respondent are, by the terms of the Act as I have just set out, obligations owed by an employer or in the case of s.340 a prospective employer, to an employee (and again, in respect of s.340 a prospective employee).
The argument pressed with most vigour by the respondent on this application is that the applicant was not ever an employee of the respondent for the purposes of the Fair Work Act.
For the purposes of both Part 3-1 and Part 6-4 of the Fair Work, the terms employer and employee have their ordinary meanings: ss.335 and 770 of the Act. According to the Full Federal Court in C v Commonwealth (2015) 234 FCR 81 at 87:
The “ordinary meanings” of “employee” and “employer” are rooted in the common law. The ordinary meaning referred to must be the ordinary legal meaning as distinct from one of more colloquial context. The terms refer to parties to a contract of service or employment: see, for example, Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
…
While other formulations (such as “unwritten law” or “ordinary meaning at common law”) might have been employed, it is clear, in the context of the FW Act, that “the ordinary meaning” is that comprehended by the common law.
In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 the High Court observed that the common law requires at least two separate elements to be present for there to be a contract of employment. The first is that the person agree to perform work pursuant to a contract, the second that the contract be characterised as one of employment rather than some other relationship such as a contract for services.
As to the first of these requirements, it is essential to show that the parties intended to create a relationship which gave rise to obligations enforceable by law, that is to say, they intended to enter into a binding legal relationship. In Ermogenous the issue of intention to create contractual relations was considered in the following way:
24. It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty. “To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts”.
25. Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties”.
The evidence does not show that the parties intended to enter into a legally binding relationship. The use of the word “volunteer” to describe the applicant’s role is inconsistent with the notion that the parties were bound to each other under a contract of service. There was no written contract of employment. The terms of the Volunteer application are inconsistent with the notion that the applicant was applying to become an employee of the respondent.
Consideration is also necessary. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515 MacKenna J opined that three conditions were required for there to be a contract of service, or in other words an employment contract, namely:
(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with it being one of service.
I need say little about (i) and (ii).
As to (i). There must be a wage or other remuneration. Otherwise there would be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill.
That passage has been adopted and applied in many English authorities, for example, Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 and has been described as the “classic exposition of the ingredients of a contract of service”: Pimlico Plumbers Ltd and another (Appellants) v Smith (Respondent) [2018] 4 All ER 641 at [22]. It also represents the law in Australia and has been applied many times, although usually in connection with an inquiry about whether a putative employee is in fact an employee or an independent contractor. The question of consideration for the contract being, I would suggest, as so trite as to rate barely a mention. See for example Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104, Forstaff & Ors v The Chief Commissioner of State Revenue (2004) 144 IR 1, Australian Air Express Pty Limited v Langford (2005) 147 IR 240; Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201.
There was no consideration for any promise by the applicant to perform work for the respondent. There was no provision for remuneration. There is no dispute that the applicant was providing her work gratis.
Moreover, neither party suggested that there was a binding contract between the applicant and the respondent whereby either was bound to the other to do anything. There may have been an agreement in place between the applicant and the respondent that she would provide work for the respondent evidenced perhaps by the application form completed by the applicant when she commenced with the respondent, but there is nothing to suggest that the agreement was an enforceable contract, let alone a contract of employment.
Having regard to those matters, I have concluded that the applicant does not have reasonable prospects of successfully prosecuting her application. She cannot establish that she was an employee of the respondent for the purposes of the Fair Work Act and in particular those sections that she claims the respondent has contravened. Her application should be dismissed on that basis. It is unnecessary to address the other arguments raised by the respondent that the applicant has misapprehended the meaning of “social origin” in s.351 of the Fair Work Act and that her engagement with the respondent was not, in any event, terminated.
Costs
The respondent seeks an order for costs. The application for costs falls to be determined by reference to the provisions of s.570 of the Fair Work Act which provides:
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(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; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
As Judge O’Sullivan recently recorded in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd [2018] FCCA 508, in Ryan v Primesafe [2015] FCA 8, Mortimer J dealt with an application for costs arising from proceedings under the Fair Work Act. In relation to the provisions in s.570 of the Fair Work Act generally her Honour said:
[64] I accept the general import of the authorities relied on by the applicant and Mr McDonald in their written submissions about the significance of the threshold set by s 570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s 570, there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s 611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s 570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2)(2012) 203 FCR 430;[2012] FCAFC 103 at [3]–[4] per Jessup and Tracey JJ.
[65] None of those propositions deny the court’s ability to find that one or both of the two preconditions expressed in ss 570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s 570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the court responsibly.
Further, in Tsilibakis v Transfield Services (Australia) Pty Ltd (No.2) [2015] FCA 1048, White J said:
[7] It is not necessary to canvass in detail the authorities bearing upon the application of s 570. The relevant principles are well established. Section 570 and its predecessors are to be understood as reflecting a legislative policy of protecting parties to proceedings under the FW Act from orders for costs so that parties with a genuine grievance will not be discouraged from pursuing a remedy to which they may be entitled, or from pursuing litigation in the manner which they deem best, for fear of an adverse costs order: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574, at [29]; Ashby v Slipper (No 2) [2014] FCAFC 67; (2014) 314 ALR 84 at [35]. The occasions upon which costs will be awarded under s 570 are likely to be exceptional: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; (2006) 156 FCR 275 at [60].
[8] The questions of whether a party’s act or omission was unreasonable and whether such an act or omission has caused the other party to incur costs are to be determined having regard to the particular circumstances of each case: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 at [27]–[28]. The fact that a party has conducted the litigation inefficiently, has made concessions relatively late, may have acted in a different or more timely fashion, or has adopted a genuine but misguided approach will be relevant to, but are not conclusive of, the party having acted unreasonably in the relevant sense: Clarke at [29]–[30]. A party’s failure to comply with the duties imposed by s 37N of the Federal Court Act is also a relevant consideration: Specsavers Pty Ltd v Optical Superstore Pty Ltd [2012] FCAFC 183; (2012) 208 FCR 78 at [57]–[58].
Thus, before I can make an order for costs, I need to be satisfied and find that one of the conditions to the Court’s power to order costs is met. Moreover, even if I am satisfied one or more of the conditions are fulfilled, the order for any costs remains within the discretion of the Court: Ashby v Slipper (No.2) [2014] FCAFC 67.
The respondent did not address the question of costs in any detail, perhaps assuming that costs would follow the event. Having regard to the facts of this case, I am not satisfied that any of the matters that need to be established so as to engage the Court’s power to order costs as provided for by s.570 of the Fair Work Act are met. In any event, as a matter of discretion I would refuse costs in the circumstances of this case.
Conclusion
The applicant, I find, has no reasonable prospects of successfully prosecuting her proceedings. The applicant should be dismissed pursuant to s.17A of the Federal Circuit Court Act and FCCR 13.10(a) with no order as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 3 July 2019
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