Altintas v O'Dea Lawyers

1. The Appellant's application for costs is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 27 September 2018, the Court delivered judgment on a question reserved for its consideration by the South Australian Employment Tribunal (the SAET). The Court declined to answer the reserved question on the basis that it lacked jurisdiction to do so. 2 When the judgment was delivered, counsel for the Appellant made an application that the Respondent pay some of her costs in relation to the proceedings in this Court. Counsel submitted that such an order was appropriate even taking into account the terms of s 570 of the Fair Work Act 2009 (Cth) (the FW Act). 3 The Respondent, who is a legal practitioner, represented himself in the proceedings. He opposed the making of the costs order sought by the Appellant but did not, at that time, make any application for an order for costs in his favour. 4 The Court then made orders with respect to the Appellant's application for costs which required an exchange of written submissions. The Court indicated that it would determine the application on the papers. Subsequently, each of the Appellant and the Respondent provided both submissions and a supporting affidavit. We have had regard to all these documents. 5 It was common ground that s 570 of the FW Act is applicable to the Appellant's application for costs. Section 570 provides: 570 Costs only if proceedings instituted vexatiously etc. (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. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 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. 6 As is evident, s 570 has the effect of curtailing, in proceedings in relation to matters arising under the FW Act, the discretion which the Court would otherwise have with respect to costs. Subsection (2)(b), which is pertinent presently, has the effect that the Court may order the Respondent to pay costs to the Appellant only if it is satisfied that his "unreasonable act or omission" caused the Appellant to incur costs. 7 The Appellant submits that acts or omissions of the Respondent in relation to the hearing of the question reserved were unreasonable. She relies on the conduct of the Respondent following the case management hearing on 8 March 2018. At that hearing, a Judge of this Court made orders requiring action from the Respondent (relevantly) as follows: [6] In accordance with the Practice Note APP2, not later than 4pm 15 business days before the hearing, the Respondent must file and serve on the Appellant its outline of submissions, a chronology of the relevant events and a list of materials [he] requires to be included in Part C of the Case Book. … [10] Each party file and serve a list of authorities and legislation in accordance with the List of Authorities and Citations Practice Note (GPN-AUTH), not later than 4pm five business days before the hearing. 8 The Respondent did not comply with either of these orders. He did not ask to be excused from compliance with them, or to have them varied. Nor did the Respondent attend the hearing before the Court on the Question Reserved on 31 May 2018. He did not provide any explanation to the Court at that time for his failure to do so. 9 The consequence was that the Court had to address the issues on the Question Reserved and the issues concerning its own jurisdiction without any assistance from the Respondent. Likewise, the Appellant had to attempt to deal with the various responses which she could anticipate were available to the Respondent in the circumstances. She was not able to confine her submissions to the issues which had been joined between the parties, as identified in the respective outlines of submissions contemplated by the Court's orders of 8 March 2018. 10 When the Appellant made her application for costs on 27 September 2018, the Respondent proffered the following explanation: We saw no need to challenge the material, therefore there's nothing to put up, and that doesn't mean to say that we're not intending to oppose the application … So we maintain the position that we're simply passive. … I apologise to the Court for not appearing, but the - in respect of the written submissions, we didn't see the need to respond to those submissions. 11 In his written submission on the issue of costs, the Respondent said: [17] The Respondent reduced rather than burdened both the resources of the Appellant's solicitors and the Court by not filing response submissions or taking part in the cases list. The Respondent did not burden the Appellant's solicitor by having to prepare a response submissions to the Respondent as is his entitlement. … [19] The Respondent whilst in hindsight and with regret did not appear at the hearing, but the intention was to reduce the burden on judicial resources in appearing and giving submissions which would add no benefit to the question referred proceedings. (Footnote omitted) 12 Plainly, these are inadequate explanations. If the Respondent had wished to indicate that he did not intend to dispute any of the submissions advanced by the Appellant, then he should have indicated that that was so by filing a short written outline. As the Respondent was representing himself in the proceedings, he was subject to the usual expectation that he would attend in Court when the proceedings were called on for hearing. Given that the Respondent is a legal practitioner, he can be taken to have been aware of that expectation and, indeed, his obligations in that respect. It should not be necessary for him to have to be reminded of his obligation to give assistance to the Court in administering justice in a timely and efficient manner: A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208, (2009) 25 VR 189 at [15]; Virgtel Ltd v Zabusky (No 2) [2009] QCA 349. Further, and in any event, the Respondent's conduct was not consistent with the overarching purpose to which ss 37M and 37N(1) of the Federal Court of Australia Act 1976 (Cth) refer. 13 In the circumstances, we are satisfied that the Respondent's conduct should be characterised as "unreasonable" for the purposes of s 570(2)(b) of the FW Act. 14 This requires consideration of whether the Respondent's unreasonable conduct caused the Appellant to incur costs, as is also required by s 570(2)(b). It is only the unreasonable conduct identified above which is to be considered for this purpose: not the whole of the Respondent's conduct in relation to the Question Reserved. 15 The Appellant relied upon the affidavit of her solicitor and counsel in which he deposed (relevantly): Normally communication between lawyers about the issues in dispute helps to narrow the focus of submissions and thus reduces the work required. On behalf of the Appellant it was reasonably necessary to submit relatively extensive submissions (albeit unsuccessful) without knowing the arguments which would be put by the Respondent. Accordingly, I can say that a substantial amount of extra legal work was required due to the Respondent's lack of participation leading up to the oral hearing. It is impossible to be precise about the amount of additional work required. 16 In relation to this contention, we note first of all that the work required of the Appellant in preparing and filing an outline of submissions cannot be attributed to the unreasonable conduct of the Respondent identified above. That is because the Appellant was required to provide her outline of submissions before the Respondent. This means that the content of the Appellant's submissions cannot be regarded as attributable to the identified conduct of the Respondent. In addition, the Appellant was spared the expense of preparing an outline of submissions in reply. 17 The Appellant has not shown that the costs of the Appellant's attendance before the Full Court on 31 May 2018 were greater than would have been the case had the Respondent not engaged in his unreasonable conduct. The hearing occupied half a day and that is likely to have been the case even had the Respondent complied with the Court's orders and participated in the hearing. 18 The Appellant also pointed to the costs incurred by her solicitor sending emails to the Respondent pursuing service of his outline and raising the issue of the materials to be included in the Court Book. However, there appears to have been only two or three emails of this kind and the costs involved were negligible. We do not consider it appropriate for account to be taken of them presently. 19 In short, we are not satisfied that the Appellant has shown that additional costs were caused by the identified unreasonable conduct of the Respondent so as to engage s 570(2)(b). 20 For these reasons, we consider that the Appellant's application for costs fails. This makes it unnecessary to address the remaining submissions advanced by the Respondent in answer to the Appellant's application. 21 We add that the Respondent's written submissions included a claim by him for his own costs. However, no such application for costs had been made by him at the time judgment was delivered. The Court's orders with respect to the exchange of written outlines concerned only the Appellant's claim for costs. The Respondent did not seek any variation of the Court's orders so as to allow him to pursue a claim for costs. In these circumstances, it is unnecessary for the Court to address the application for costs contained in the Respondent's written submission (to which, we note, the Appellant has not had an opportunity to respond). I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices White, Perry and Charlesworth.