Barrick v Qantas Flight Catering Limited

REASONS FOR JUDGMENT 1 These reasons concern the question of costs in the principal proceedings. 2 Any consideration of the question of costs in the present proceedings has to be based on and have regard to the provisions of s 43 of the Federal Court of Australia Act 1976 (Cth) which provides: (1) … the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. 3 The principal proceedings were, in many respects, bizarre. On 31 May 2007, I gave judgment in this matter dismissing the application: Barrick v Qantas Flight Catering Limited [2007] FCA 835. 4 In those reasons, I said, at [2]-[6]: 2 … the Federal Court proceedings, which were commenced by an application filed on 17 June 2002, involve an extraordinary collocation of alleged causes of action, many of which are misconceived or assert a cause of action not known to the law. It is a sad but true observation that the applicant's case has been conducted on the basis essentially of assertion, and the absence of probative evidence. 3 The relief claimed by Mrs Barrick in these proceedings is for: (i) the recovery of fines and penalties for alleged breaches of a number of provisions of the Award by Qantas Catering; (ii) recovery of wages and superannuation alleged to have been unpaid by Qantas Catering; (iii) damages under s 82 of the Trade Practices Act 1976 (Cth) (the TP Act) for breaches of s 51AA and s 52; (iv) and further and alternatively, for damages for breach of contract and or statutory duty; (v) and further and alternatively, damages and or equitable compensation for harsh and unconscionable conduct; (vi) and further and alternatively, for declaratory relief in reliance on s 80 of the TP Act, or alternatively, on reliance on the rules of natural justice and the principles of equity and good conscience and the common law of the Commonwealth; (vii) and further and alternatively, for a mandatory injunction in reliance on s 80 of the TP Act, and or alternatively in reliance on the inherent jurisdiction of the Court to uphold the statutory and common law of the Commonwealth, including the rules of natural justice and the principles of equity and good conscience; (viii) and further and alternatively damages and or equitable compensation as the Court deems fit and appropriate including exemplary damages in consequence of the respondent's compliance or non-compliance with the proposed orders for declaratory and mandatory injunction; (ix) such further or other orders as the Court deems fit in all the circumstances of the case as set out herein; (x) an order for costs on an indemnity basis; (xi) interest on all monies and damages found to be payable. 4 It was pleaded in Mrs Barrick's case in [45] of the Further Amended Statement of Claim, filed 28 April 2005: 45. …, the conduct of the Respondent [Qantas Flight Catering Limited]in:- (i) reversing its previous positions; (ii) and failing to take appropriate steps to correct its treatment of the Applicant on the strength of its original allegations and accusations (including its dismissal of the Applicant, her prosecution for fraud and refusal to pay superannuation on the grounds of ill health); (iii) and putting forward evidence, claims and defences in these proceedings which it could and should have put forward in the previous proceedings is unreasonable and contrary to equity and good conscience. 5 Further, in [46], it was pleaded: In the premises and in the absence of proper and reasonable explanations from the Respondent [Qantas Flight Catering Limited] to justify or excuse the conduct on its part … the Respondent should be held as the Applicant reasonably apprehends to have committed an abuse of the process of the AIRC and the Magistrates Court to the detriment of the Applicant. 6 This is, quite simply, an extraordinary assumption of what the Federal Court is empowered to do. 5 There was no cause of action available to the applicant by which she could revisit the the issues which were the subject of findings in the Australian Industrial Relations Commission (AIRC) to the effect that the applicant was complicit in a fraudulent scheme. The applicant asserted that in the AIRC proceedings, the conduct by the respondent in resisting her application for unlawful termination or reinstatement was false, and was a representation in trade or commerce entitling the applicant, pursuant to the Trade Practices Act 1976 (Cth) to recovery of legal expenses. 6 As my reasons for judgment in the principal proceedings demonstrate, I was and am of the view that the proceedings in the Federal Court were brought for the dominant purpose of having the Federal Court revisit the determinations of other courts and tribunals (including the proceedings in the AIRC) and the findings concerning the conduct of the respondent, or its officers, in such proceedings, which were determined adversely to the applicant. In particular, it was said that the proceedings in the Federal Court were brought to obtain findings from the Federal Court contrary to those of the AIRC, "to clear the applicant's name". 7 The nature and purpose of the applicant's case was made plain by the solicitor for the applicant on the first day of the trial: … these proceedings do involve, and quite clearly involve, a re-run of everything that happened to the … Applicant, on the basis of the Respondent's conduct, and it's clearly set out in the statement of claim that various things - there were various court proceedings, there was the AIRC - all of these things are set out in the statement of claim. And we are asking the Court - we have come to the Court and said these things could not have happened unless something untoward was done, and we say something untoward was done and we say that - we are asking the Court to assist us, by the process of discovery and disclosure and so on, to actually quite precisely revisit all the things which have happened and how they happened and how they could possibly have happened. 8 On that day, the solicitor for the applicant said that a declaration was sought in order to found an application for malicious prosecution, defamation and misrepresentation. The stated purpose in seeking a declaration was to sustain proceedings in another court at some later time. 9 The causes of action pleaded by the applicant, the nature and purpose of the principal proceedings, and the evidence sought to be relied on by the applicant are such that, in the ordinary course, it would be appropriate to make an order for costs on an indemnity basis against the applicant. 10 In my judgment, the proceedings were commenced without reasonable cause and were, from first to last, untenable: Bagshaw v Scott [2005] FCA 104 at [46] and [102]. 11 From the outset, the proceedings had no substantial or any prospects of success, and it is clear, in my judgment, that the proceedings were commenced, maintained, and conducted vexatiously. 12 Notwithstanding all of the above, for the reasons which follow, I think it right, in all the circumstances of this case, simply to order that, except where specific costs orders have been made with the opposite effect, the applicant pay the costs of the respondent of and incidental to the proceedings. 13 I note that the dates that had been first set down for the hearing of the trial had to be vacated because of the inadequacy of the respondent's preparation for trial. In respect of that matter, I ordered the respondent to pay the costs of the applicant thrown away by the need to adjourn the trial of the proceedings. 14 On 31 May 2007, I dismissed the application and set a timeframe in respect of the making of submissions as to costs. 15 On 14 June 2007, I received from Mr Cusask of Cusack Galvin & James, solicitors for the applicant, submissions on behalf of the applicant. Those submissions did not address the question of costs, and appeared instead to seek to re-litigate issues in respect of which judgment had been delivered. 16 On 21 June 2007, a Notice of Motion and costs submissions were received from Blake Dawson, as solicitors for the respondent. That Notice of Motion, as amended, sought: 1. The Applicant pay the Respondent's costs of the proceedings, including all reserved costs and costs of this Notice of Motion, on an indemnity basis. 2. The Applicant's solicitor, Cusack Galvin & James (a firm) (also known as Cusack, Galvin & James Solicitors and Advocate) being constituted by the members Mr Michael Damian James and Mr William Patrick Cusack or in the alternative Mr Michael Damian James and Mr William Patrick Cusack, members of the firm Cusack Galvin & James (a firm) (also known as Cusack Galvin & James Solicitors and Advocate) or in the alternative Mr William Patrick Cusack ('Applicant's Solicitor'), pay the Respondent's costs of the proceedings, including all reserved costs on an indemnity basis. 3. The Applicant and the Applicant's Solicitor, be jointly and severally liable for such costs. 4. … 5. In the alternative, to the relief sought in paragraph 2 hereof that the Applicant's Solicitor pay the Respondent's costs of the proceedings, including all reserved costs on a party and party basis. … (Emphasis added) 17 On 19 July 2007, I held a directions hearing in respect of the Notice of Motion filed by the solicitors of the respondent, at which time I issued programming directions and scheduled a hearing date for 26 October 2007. 18 On 24 October 2007, the solicitors for the respondent requested a further directions hearing, because, with the concurrence of the solicitors for the "Applicant's Solicitor" (a generic term for the various alternative third parties referred to in the Notice of Motion as set out above), the respondent sought to split its case as between Mrs Barrick and the other parties, on the basis that any claim against Mrs Barrick could be determined first, and the remaining issues deferred to a later date, pending mediation between the affected parties. That request was rejected by me. 19 I indicated, and the parties were advised, that the questions raised in the request could be agitated at the projected hearing on 26 October 2007 if required. 20 On 26 October 2007, the solicitors for the respondent indicated that they were unable to proceed on the hearing, in particular, because they had been served with further material in the form of a lengthy affidavit, only on the morning on 26 October 2007. On that day, I heard the matter of the costs application as against Mrs Barrick personally, and directed that the question of costs as between the other parties would be adjourned. 21 I reserved judgment on the matter of any costs against Mrs Barrick, in the light of the amounts of material that had been relied upon and the lateness of filing of some of those documents, in particular, new material filed by Mrs Barrick on the morning of 26 October 2007. 22 I then made further orders in relation to the hearing of the Notice of Motion filed by the solicitors for the respondent, and made a programming series of directions for the hearing of the balance of the matter. 23 On 5 February 2008, the further hearing of the Notice of Motion commenced. At the conclusion of the hearing on that day, the respondent indicated it wished further to amend the Amended Notice of Motion, and widen the relief sought in the alternative for orders for indemnity costs. The relevant amendments were made to paragraphs 6 to 12 of the Notice of Motion. 24 Following argument, on the following day, 6 February 2008, on whether the further amendments should be allowed, I granted leave to the respondent to file a Further Amended Notice of Motion. I ordered the respondent to pay the costs of the third party respondents to the Notice of Motion thrown away by the amendments, and the need to adjourn, and I ordered that those costs be paid on an indemnity basis. 25 On 8 February 2008, the respondent filed a Further Amended Notice of Motion. 26 Before that Further Amended Notice of Motion could be heard, the parties to the Notice of Motion filed consent orders in the following terms: 1. The further amended notice of motion filed 8 February 2008, insofar as it seeks relief against Cusack Galvin & James (a firm) (also known as Cusack, Galvin & James Solicitors and Advocate), Mr Michael Damian James, and Mr William Patrick Cusack, be dismissed. 2. No order as to costs. 27 In a letter which accompanied the request for those consent orders, the solicitors for the respondent said: Our client notes that it maintains its claim for the relief sought in paragraph 1 (on the basis set out in paragraph 4) of that notice of motion against the Applicant, Mrs Barrick. 28 I made the orders sought by the parties to the Notice of Motion (other than Mrs Barrick). The only matter remaining to be decided was the application in paragraph 1 of the Notice of Motion filed on behalf of the respondent, which seeks costs on an indemnity basis against Mrs Barrick. 29 In respect of that aspect of the matter there are a number of documents relevant to the propriety of making the orders sought against Mrs Barrick. Those documents include a transcript of the hearing on 26 October 2007, and submissions in reply on behalf of the respondent, and a series of submissions made by Mrs Barrick against any order for costs. 30 Where the basis for an order of indemnity costs against a party is, in truth, founded on the conduct of the applicant's solicitor, both in the pleading and prosecution of the applicant's case, and further, where there is a claim by a respondent against that third party solicitor seeking costs on an indemnity basis because of that solicitor's conduct, that has been settled as between the parties to that claim, it seems to me to be unfair to make an order that Mrs Barrick pay the costs of the respondent to the principal proceedings on an indemnity basis. It is probable that there is no practical difference between an order that Mrs Barrick pay the costs of the respondents on a party and party basis, and an order that she pay the costs of the respondent on a indemnity basis, having regard to the likely level of costs, and her financial position. 31 Given the particular litigation history in the present case, it would be in my judgment wrong to order that the applicant pay the respondent's costs on an indemnity basis, having regard to the nature of the proceedings which the respondent brought against the applicant's solicitors, and the resolution of the claims of the respondent in that regard. 32 I therefore order simply that the applicant in the principal proceedings pay the costs of the respondent to those proceedings, to be taxed if not otherwise agreed. That general order as to costs, is, of course, subject to any particular aspect of the proceedings in which a specific costs order has been made. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.