Wu v United Overseas Bank Ltd, Sydney Branch (No 5)
[2023] FedCFamC2G 126
Federal Circuit and Family Court of Australia
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch (No 5) [2023] FedCFamC2G 126
File number(s): SYG 1844 of 2021
SYG 206 of 2022Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 February 2023 Catchwords: INDUSTRIAL LAW – Costs – applications for costs under s 570(2) of the Fair Work Act 2009 (Cth) (FW Act) in relation to two proceedings, one in which the applicant claimed relief under the FW Act and under other statutes of the Commonwealth and which the applicant discontinued, and the other in which the applicant claimed relief under the FW Act including an application for an interim injunction for reinstatement – whether applicant commenced the proceedings without reasonable cause or for improper purposes – applicant ordered to pay the costs of the first proceeding and the costs of and incidental to the application for an interim injunction for reinstatement made in the second proceeding. Legislation: Fair Work Act 2009 (Cth) ss 340, 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Federal Court Rules 2011 (Cth) Pt 40
Cases cited: Bahonko v Sterjov [2008] FCAFC 30
Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) (No 2) [2013] FCAFC 25
Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 3) [2021] FCA 1117
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1
Wu v United Overseas Bank Ltd, Sydney Branch (No 4) [2022] FedCFamC2G 228
Division: Fair Work Number of paragraphs: 31 Date of hearing: 26 July 2022 Place: Sydney Counsel for the Applicant: Mr A Britt Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondent: Ms K Nomchong SC Solicitor for the Respondent: Allens ORDERS
SYG 1844 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAOXIAN WU
Applicant
AND: UNITED OVERSEAS BANK LTD, SYDNEY BRANCH
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 February 2023
THE COURT ORDERS THAT:
1.Pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) the applicant pay the respondent’s costs of and incidental to the applicant’s application for an interim injunction for reinstatement.
2.The respondent’s costs be referred for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
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).
ORDERS
SYG 206 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAOXIAN WU
Applicant
AND: UNITED OVERSEAS BANK LTD, SYDNEY BRANCH
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 february 2023
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of the proceeding.
2.The respondent’s costs be referred for taxation under Part 40 of the Federal Court Rules 2011 (Cth).
THE COURT NOTES THAT:
3.Order 1 is made pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) to the extent the order relates to costs the respondent incurred in relation to claims the applicant made under the FW Act.
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
introduction
In these reasons for judgment I consider two applications for costs. The first is an application United Overseas Bank Ltd, Sydney Branch (UOB) makes in a proceeding the applicant, Ms Wu, commenced against UOB in this Court on 30 September 2021 (FCFC proceeding). The second is an application for costs UOB also makes, but in a proceeding Ms Wu commenced against UOB in the Federal Court of Australia (Federal Court) on 7 December 2021 (FC proceeding), which, as a result of the orders made by Katzmann J on 14 February 2022, has been transferred to this Court.
To be in a position to determine the applications for costs, it will be necessary to set out the history of both the FCFC and the FC proceeding. I will begin with the FCFC proceeding. It will also be convenient to set out the relevant principles by reference to which I must consider UOB’s applications for costs.
FCFC proceeding
In the FCFC proceeding Ms Wu claims that UOB had terminated Ms Wu’s employment in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act). Ms Wu applied for, among other things, an interim injunction for reinstatement. I have set out the circumstances in which Ms Wu commenced the proceeding in reasons for judgment I published on 17 November 2021 (Injunction judgment).[1]
[1] Wu v United Overseas Bank Ltd, Sydney Branch (No 2) [2021] FedCFamC2G 264
The matter came before me on a first court date on 28 October 2021. I ordered that Ms Wu make available to UOB for collection a laptop that she had used while employed by UOB. I also ordered that:
(a)up to and including 5:00 pm on 2 November 2021 Ms Wu be restrained from using certain information in her possession that directly or indirectly concerns the business of UOB;
(b)by 10:00 am on 1 November 2021 UOB file and serve an application seeking orders in relation to documents and information UOB contends are confidential to it;
(c)the application that was to be filed pursuant to (b) be made returnable for hearing at 2:00 pm on 2 November 2021; and
(d)Ms Wu’s application for an interim injunction for reinstatement be made returnable before me at 2:00 pm on 2 November 2021.
On 2 November 2021 I adjourned the hearing of UOB’s and Ms Wu’s interim applications to 8 November 2021, and continued the injunction I had granted on 28 October 2021 up to and including 8 November 2021. On 8 November 2021 I again adjourned the hearing of the interim applications, this time to 12 November 2021, and continued the injunction up to that day. On 12 November 2021 I heard UOB’s application for orders in relation to documents and information UOB contended are confidential to it. I reserved judgment to be delivered at 2:00 pm on 17 November 2021, listed for directions at that time Ms Wu’s application for an interim injunction for reinstatement, and continued the injunction I had granted on 28 October 2021.
On 17 November 2021 I published the Injunction judgment and made orders. On 24 November 2021 I discharged orders I made on 17 November 2021, and I ordered that, until further order, and subject to a number of exceptions it is unnecessary to set out, Ms Wu be restrained from passing on, publishing, communicating, using, or otherwise disclosing to any person or entity outside UOB’s organisation, any confidential information of UOB, whether in documents or otherwise, which is in the possession of Ms Wu that directly or indirectly concerns UOB’s business, operations, management or employees. I also ordered that Ms Wu’s application for an interim injunction for reinstatement be listed for directions on 16 December 2021 (later changed to 14 December 2021). On 14 December 2021 I set down for hearing on 22 March 2022 Ms Wu’s application for an interim injunction for reinstatement, and made directions for the hearing of that application. On 22 March 2022 I heard Ms Wu’s application, after which I reserved judgment to be delivered on 1 April 2022.
On 1 April 2022 I dismissed Ms Wu’s application for an interim injunction for reinstatement on the basis of reasons for judgment I published on that day (Reinstatement judgment).[2] By that time Ms Wu had secured legal representation. On 1 April 2022 I directed that Ms Wu file and serve a statement of claim by 29 April 2022, and listed the matter for further directions on 6 May 2022. Ms Wu did not comply with the order that she file and serve a statement of claim.
[2] Wu v United Overseas Bank Ltd, Sydney Branch (No 4) [2022] FedCFamC2G 228
On 6 May 2022 I directed Ms Wu file and serve a statement of claim by 27 May 2022, and I listed the matter for directions and for the hearing of any interlocutory application on 3 June 2022. That order was intended to accommodate UOB’s intention to apply for costs which, at the directions hearing on 6 May 2022, counsel for UOB foreshadowed UOB would make. Ms Wu filed a statement of claim on 27 May 2022. The listing of 3 June 2022 was rescheduled for 26 July 2022, on which day I heard UOB’s application for costs.
FC proceeding
Ms Wu filed an application with the Federal Court on 7 December 2021. In that application Ms Wu alleges that UOB had contravened provisions of, among other statutes, the Corporations Act 2001 (Cth), the FW Act, the Work Health and Safety Act 2011 (NSW), the Banking, Finance and Insurance Award 2020, Prudential Standards CPS510, CPS220, and CPS520, the Banking Act 1959 (Cth), and the Australian Consumer Law. Ms Wu also claimed interlocutory relief that included an order that UOB not be permitted to access documents stored on the laptop Ms Wu was ordered to return to UOB, and an order that, unless this Court ordered the reinstatement of Ms Wu, UOB pay to Ms Wu unpaid personal leave.
At the directions hearing in the FCFC proceeding on 14 December 2021, Ms Wu informed me she had commenced the FC proceeding. Counsel for UOB said UOB were aware that Ms Wu had commenced the FC proceeding, but Ms Wu had not served UOB with the documents by which she had commenced the FC proceeding. I suggested to Ms Wu that when the FC proceeding comes before a Judge of the Federal Court the parties should inform the Judge there are concurrent proceedings in this Court, and I noted that the Federal Court might either order that the FCFC proceeding be transferred to the Federal Court or that the FC proceeding be transferred to this Court. In any event, and as I have already noted, on 14 February 2022 Katzmann J ordered that the FC proceeding be transferred to this Court.
On 28 March 2022 UOB filed an application in a proceeding seeking an order to strike out a number of the claims Ms Wu made in the FC proceeding. UOB’s application was made returnable before me for directions at 9:30 am on 1 April 2022, at which time the FCFC proceeding had been listed for directions before me. On that day I ordered that Ms Wu file and serve a statement of claim by 29 April 2022, and listed the matter for directions to 9:30 am on 6 May 2022. Ms Wu did not comply with the order that she file and serve a statement of claim. On 6 May 2022 I directed Ms Wu file and serve a statement of claim by 27 May 2022, and I stood over the proceeding for directions to 3 June 2022. On 27 May 2022 Ms Wu filed a statement of claim which was identical to the statement of claim Ms Wu filed in the FCFC proceeding.
On 21 July 2022 UOB filed an application in a proceeding seeking an order that the FC proceeding be dismissed generally pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), and an order that Ms Wu pay UOB’s costs of the FC proceeding. At the hearing on 26 July 2022, counsel for Ms Wu informed the Court that Ms Wu would be discontinuing the proceeding.
On 1 September 2022 I formally noted that Ms Wu had discontinued the FC proceeding.
statutory provisions and principles
The Court’s power to award costs in relation to a matter arising under the FW Act is regulated by s 570 of the FW Act, which relevantly provides as follows:
(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.
In Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) Judge Given summarised some of the principles governing the exercise of the power conferred by s 570 of the FW Act:[3]
Section 570 operates as an express limitation on the broad discretion to award costs which is conferred on this Court by s 214 of the Court Act: see Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [140] per Tracey, Gilmour, Jagot, White and Beach JJ. Section 214 of the Court Act includes a discretion to order costs on an indemnity basis: see Naudi v Baig [2022] FedCFamC2G 14 per Judge Brown at [121] to [122] and Owners - Strata Plan No 77992 v Arouchanov [2021] FedCFamC2G 20 per Judge Baird at [16].
Even if the Court is satisfied of a s 570(2) precondition, it retains a discretion not to order costs: Construction, Forestry, Mining and Energy Union v Corinthian Industries (Aust) Pty Ltd (No 2) [2014] FCA 351 per Pagone J at [12].
The Court’s power to make cost orders pursuant to s 570(2) of the Act must be exercised cautiously for public interest reasons: see Australian Workers Union vLeighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 per Dowsett, McKerracher and Katzmann JJ at [8]. The question of whether a party has acted unreasonably for the purposes of s 570 turns on the facts and circumstances of the case at hand: see Sivwright v St Ives Group [2022] FCA 136 per Jackson J at [9].
. . . .
Costs orders made pursuant to s 570(2) of the Act do not arise to punish litigants for undertaking an unreasonable course of action, but rather are made on the basis that a measure of reimbursement should be conferred upon another party for the costs incurred in the conduct of, or need to respond to, unreasonably instituted proceedings: Kanan (supra) at 265. However, as Gilmour J observed in R v Patrick Projects Pty Ltd (No 2) [2017] FCA 388 at [10]:
That a party has a “self-evidently weak case” is not enough to warrant a costs order. There must be “a higher level of criticism or disapprobation”: Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 at [14]. Indeed, costs were not awarded against the FWO in Fair Work Ombudsman v Valuair Limited (No 3) [2014] FCA 1182 even though elements of the FWO’s case were “artificial and unsatisfactory” and “potentially bizarre”: at [12]–[17] cross-referencing to the liability decision - Fair Work Ombudsman v Valuair Ltd (No 2) [2014] FCA 759; (2014) 224 FCR 415.
[3] Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1, at [174]-[177], [182]
An order for costs may be made in relation to an interlocutory application, assuming the preconditions under s 570(2) of the FW Act are met.[4]
[4] Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 3) [2021] FCA 1117, at [29]
These principles apply to where there is before the Court one “matter” under s 570 of the FW Act. Where, however, there is before this Court or the Federal Court two or more matters arising under two or more Commonwealth statutes, and only one of which (such as the FW Act) restricts the power to award costs, the Court may need to consider whether the costs of the proceeding should be allocated, in part to the matter in relation to which there is a restriction on the power to award costs, and in part to the matter or matters where no such restriction applies; and the Court may need to so allocate those costs to determine, on the basis of the different powers the Court has to order costs, what costs orders should be made.[5] Thus, in Bahonko v Sterjov the Full Federal Court said in relation to the original jurisdiction of the Federal Court:[6]
The question whether costs with respect to separate federal claims within the original jurisdiction of the Court are affected by the restrictions on the award of costs appearing in the WR Act has not received prior attention by a Full Court. In Seven Network it was held that separate federal proceedings are not shielded from costs by s 347 of the WR Act (now s 824) notwithstanding earlier decisions of the Court to the effect that common law causes of action heard together with claims under the WR Act were so protected (see e.g. Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [61]-[70] and the cases there referred to). Seven Network was followed by the primary judge in the decision under appeal and in McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086.
A separate federal claim does not come before the Court in its “accrued” or “associated” jurisdiction. It stands on its own, even if for convenience it is consolidated with other claims within the Court's jurisdiction for the purpose of hearing. The ordinary principles concerning costs apply in the absence of a statutory restriction applying to those proceedings. Such a restriction does not, in our view, arise from the administrative act of consolidating separate federal proceedings for hearing.
[5] See Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) (No 2) [2013] FCAFC 25
[6] Bahonko v Sterjov [2008] FCAFC 30, at [30], [31]
parties’ submissions
In relation to the FCFC proceeding UOB submits that the Reinstatement judgment contains findings on the basis of which it is sufficient to find that Ms Wu instituted the FCFC proceeding without reasonable cause. UOB particularly relies on the following findings:[7]
Nowhere in this exchange, and on no other occasion during the hearing before me, did Ms Wu identify the work she would resume if UOB were to be ordered to reinstate her; or the managers and other employees with whom Ms Wu would be working, if reinstated; or whether, in undertaking any such work, it would be possible for Ms Wu to establish and maintain a proper working relationship between her and the managers and other employees with whom she would be working if reinstated and, if so, how such working relationship would be established and maintained. Ms Wu instead submitted that, if UOB were ordered to reinstate her employment, Ms Wu would use her reinstated position as an employee to escalate to regulators her allegations of serious wrongdoing by UOB – allegations UOB denies.
In these circumstances I cannot be satisfied there is a serious question to be tried about whether Ms Wu will be entitled to an order for reinstatement, assuming she were to establish at trial that UOB terminated her employment in contravention of s 340(1) of the FW Act; and that is because there is no evidence or allegations of fact on the basis of which, if accepted, it could reasonably be argued that on Ms Wu’s being reinstated there will be a sufficient level of cooperation between her and the managers and other employees of UOB with whom she would be working for a proper working relationship to resume. For this reason alone Ms Wu’s application for an interim injunction for reinstatement must fail.
[7] Wu v United Overseas Bank Ltd, Sydney Branch (No 4) [2022] FedCFamC2G 228, at [16], [17]
UOB also submits that it is apparent from the manner in which Ms Wu conducted the FCFC proceeding, and the reasons she gave for applying for her reinstatement, that she had brought and pursued the FCFC proceeding for an improper and collateral purpose of gaining access to UOB’s records to make complaints about UOB to third parties.
As for the FC proceeding, UOB submits the claims Ms Wu made under the FW Act largely overlapped with the claims Ms Wu makes in the FCFC proceeding; and the claims Ms Wu made under the other statutes are manifestly untenable, including Ms Wu’s not having standing to bring many of the claims she made. For these reasons, UOB submits, Ms Wu instituted the FC proceeding vexatiously, and without reasonable cause. UOB further submits that Ms Wu commenced the proceeding to harass, annoy, and embarrass UOB. UOB relies on statements Ms Wu made at a number of hearings in which she stated she intended to bring what she alleged to be various activities to the attention of regulators. UOB submits that Ms Wu’s conduct is such that not only should she be ordered to pay costs, but those costs should be ordered to be assessed on an indemnity basis.
Ms Wu, on the other hand, submits the Court cannot be satisfied that at the time Ms Wu commenced the FCFC proceeding and the FC proceeding they were doomed to fail. The fact Ms Wu failed on her application for an interim injunction for reinstatement does not necessarily mean her claim was doomed to fail. Ms Wu points to my having found there was a serious question to be tried whether UOB dismissed Ms Wu in contravention of the FW Act. Ms Wu also submits that the unreasonable acts UOB submits she engaged in were not unreasonable, viewed objectively.
determination
FC proceeding
Ms Wu had no reasonable cause for claiming in the FC proceeding relief under the FW Act (FW claims). By commencing the FCFC proceeding Ms Wu had invoked the jurisdiction of this Court to determine all claims for relief Ms Wu wished to bring under the FW Act. I am therefore satisfied that an order should be made under s 570(2)(b) of the FW Act that Ms Wu pay so much of the costs UOB incurred in relation to the FW claims.
The other claims Ms Wu makes in the FC proceeding (non FW claims) are not made under the FW Act; but they are matters that arise under other statutes of the Commonwealth. That means that the question whether Ms Wu should pay the costs (non FW costs) UOB incurred in relation to the non FW claims is to be determined by applying the ordinary principles as to costs.
Ms Wu has discontinued the proceeding. A party who discontinues a proceeding ordinarily must pay the costs of the party against whom the proceeding has been discontinued. I am satisfied that this is what Ms Wu should be ordered to do so in relation to UOB’s non FW costs. Quite apart from the principle that a party who discontinues a proceeding must ordinarily pay the costs of the party against whom the proceeding has been discontinued, I am also satisfied, for the reasons UOB submits, that Ms Wu’s non FW claims were untenable, and therefore had no prospects of success.
I am not satisfied that Ms Wu’s conduct merits an indemnity costs order. I am not prepared to find that Ms Wu believed or understood she had no right to commence the FC proceeding; or that she commenced the proceeding for the purpose of harming, embarrassing, or harassing UOB, as opposed to Ms Wu doing so to pursue what she considered to be her rights.
I am satisfied that the appropriate order for costs in the FC proceeding is that Ms Wu be ordered to pay UOB’s costs. Although UOB invites me to fix UOB’s costs, I do not propose to do so. UOB’s costs should be referred for taxation under Part 40 of the Federal Court Rules 2011 (Cth) (FC Rules).
FCFC proceeding
I am not satisfied that Ms Wu commenced the FCFC proceeding for any improper purpose, or for the purpose of harassing or otherwise harming UOB. In the Reinstatement judgment I found there is a serious question to be tried about whether UOB terminated Ms Wu’s employment in contravention of s 340(1) of the FW Act.
Ms Wu’s application for an interim injunction for reinstatement, however, calls for a different consideration. As I found in the Reinstatement judgment, Ms Wu’s stated purpose in pursuing reinstatement was to “use her reinstated position as an employee to escalate to regulators her allegations of serious wrongdoing by UOB – allegations UOB denies”.[8] Ms Wu’s purpose - to use her position of a reinstated employee to maintain a campaign against her employer - is antithetical to the relationship of employer and employee, and is wholly foreign to the purpose for which the FW Act confers the remedy of an interim injunction for reinstatement. Given her purpose for doing so, it was unreasonable for Ms Wu to apply for an interim injunction for reinstatement; she was bound to lose such application.
[8] Wu v United Overseas Bank Ltd, Sydney Branch (No 4) [2022] FedCFamC2G 228, at [16]
I am satisfied that Ms Wu should be ordered to pay the costs UOB incurred in relation to Ms Wu’s application for an interim injunction for reinstatement. UOB invited me to assess its costs, but I propose to refer UOB’s costs for taxation under Part 40 of the FC Rules.
disposition
In relation to the FC proceeding, I propose to order that Ms Wu pay UOB’s costs, noting that the order is made under s 570(2)(b) of the FW Act to the extent it applies to the costs UOB incurred in relation to the claims Ms Wu made under the FW Act. I will also order that UOB’s costs be referred for taxation under Part 40 of the FC Rules
In relation to the FCFC proceeding, I propose to order, pursuant to s 570(2)(b) of the FW Act, that Ms Wu pay UOB’s costs of and incidental to Ms Wu’s application for an interim injunction for reinstatement, and that those costs be referred for taxation under Part 40 of the FC Rules.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 22 February 2023
0
18
0