Bashour v Australian and New Zealand Banking Group Limited

TRACEY J 1 The applicant, Ms Katherine Bashour, commenced this proceeding on 21 February 2014. She now wishes to discontinue the proceeding. She does not, however, wish to pay the respondents' costs: cf r 26.12(7) of the Federal Court Rules 2011 (Cth) ("the Rules"). 2 Ms Bashour has filed an interlocutory application seeking orders that she be granted leave to discontinue the proceeding and that the first respondent ("the Bank") pay her costs on an indemnity basis. Alternatively, she has sought orders that indemnity costs be payable for part of the period during which the proceeding has been before the Court and "ordinary" costs for the balance, that there be an order for costs on the usual basis for the whole or part of the proceeding, or that there be no order as to costs: see rr 1.33 and 26.12(2)(c). 3 The respondents, for their part, seek their costs on the ordinary basis, either for the whole of the proceeding or for parts of it. 4 The parties filed written submissions in support of their applications and were agreed that the Court should determine the respective claims having regard to those submissions. 5 The costs applications come to be made in the following circumstances. 6 Ms Bashour alleged, in her amended statement of claim, that the respondents had contravened certain of the general protections provisions of the Fair Work Act 2009 (cth) ("the Act") and the Australian Consumer Law (Cth), and that there had been breaches, by the Bank, of her contract of employment. 7 On 1 October 2014 Ms Bashour's contract of employment was terminated. The respondents submitted that Ms Bashour resigned; Ms Bashour submitted that she had been constructively dismissed. It is not necessary to resolve this controversy. 8 On 20 October 2014 Ms Bashour commenced another proceeding in the Victorian Civil and Administrative Tribunal ("VCAT") against the Bank and certain of its employees. In that proceeding she alleged that she had been constructively dismissed and that the respondents had contravened provisions of the Equal Opportunity Act 2010 (Vic). 9 On 23 October 2014, I ordered that the present proceeding be listed for hearing commencing on 27 April 2015 on an estimate of five days. 10 On 9 December 2014 the Bank made an application to VCAT to strike out the proceeding in that Tribunal and refer the subject matter thereof to this Court. The application was made under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). That section empowers VCAT to strike out a proceeding if it considers that the subject matter of it would be more appropriately dealt with by another tribunal or court and to refer the matter to that tribunal or court. Following a hearing on 24 February 2015, at which Ms Bashour appeared in person and the Bank was represented by counsel, a Vice President of VCAT, Judge Harbison, granted the Bank's application and purported to refer the VCAT proceeding to this Court. In doing so she accepted a submission, from counsel for the Bank, that this Court had power to deal with the matters arising under the Victorian Equal Opportunity Act by reason of the Court's associated jurisdiction, provided for in s 32 of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). 11 While the Bank's application to transfer the Victorian proceeding to this Court stood reserved, on 17 March 2015, Ms Bashour filed an application for leave to discontinue the proceeding in this Court. That application was withdrawn on 31 March 2015. The Bank responded by applying for costs of the application for leave to discontinue. The costs application was heard (although not determined) on 2 April 2015 together with a case management conference which was intended to ensure that, if possible, the trial date of 27 April 2015 could be held. It quickly became apparent that, if the additional issues which arose in the VCAT proceeding and which had, purportedly, been transferred to this Court, fell to be determined, further procedural steps were necessary which could not be taken in the time available. As a result the hearing date was vacated. 12 In the course of the hearing on 2 April 2015 I raised with the parties the question of whether VCAT had power to refer matters to this Court and whether this Court had jurisdiction to entertain any such referral. This was a matter which I continued to raise in the course of subsequent directions hearings. 13 On 17 August 2015 Ms Bashour applied to the Victorian Supreme Court for an extension of time within which to commence judicial review proceedings impugning Judge Harbison's orders. That application was successful: see Bashour v VCAT [2016] VSC 527 (Mukhtar AsJ). 14 The judicial review proceeding was determined by McDonald J on 9 November 2016. His Honour quashed Judge Harbison's orders after being advised that all parties consented to this course: see Bashour v VCAT (No 2) [2016] VSC 666. In doing so his Honour said (at [20]): "State legislation cannot empower a state tribunal to refer a matter to a federal court. Whether Ms Bashour's claims under the Equal Opportunity Act are matters which enliven the Federal Court's accrued jurisdiction is a question which can only be determined by the Federal Court. Neither the Federal Court's accrued, nor its associated jurisdiction in conjunction with s 77(3) of the [VCAT] Act, confers power upon VCAT to refer a proceeding under the Equal Opportunity Act to the Federal Court of Australia." 15 His Honour also observed (at [22]) that Judge Harbison had been led into error by submissions made to her on behalf of the Bank and individual respondents.

The effect of s 570 of the Act 16 The Court's broad discretionary power to award costs, pursuant to s 43 of FCA Act, is expressly qualified by the provisions of s 570 of the Act. This qualification obtains, notwithstanding the fact that Ms Bashour pleaded causes of action both under and in addition to the Act: see Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at 252-254. 17 Relevantly, s 570 of the Act 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) … (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or …" 18 Ms Bashour accepted that no costs order could be made in her favour unless she was able to demonstrate that one or more of the exceptions, provided for in s 570(2), had been established. Even then the award of costs remains within the discretion of the Court: cf Ashby v Slipper (No 2) (2014) 314 ALR 84 at 88-90. 19 The same hurdle confronts the respondents. As Ms Bashour submitted, s 570 displaces the prima facie entitlement to costs, in favour of the respondent, that would otherwise have obtained pursuant to r 26.12(7) of the Rules: Australian Rail, Tram and Bus Industry Union v Railway Employment Company Pty Ltd (2015) 237 FCR 290 at [12]-[19] (Bromberg J); Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [106] (Mortimer J). Accordingly, an award of costs cannot be made unless it is established that there has been (relevantly) an "unreasonable act or omission" by one or another party and that discretionary considerations favour the award.

Ms Bashour's application for costs 20 Ms Bashour's application focused on the exception in s 570(2)(b) of the Act. Her complaint was encapsulated in a paragraph in her written submissions in which she said that: "The scheduled hearing of the VID107/2014 Proceedings was derailed by the application made by the [Bank] to VCAT on 9 December 2014 to have the VCAT Proceedings struck out and referred to the Federal Court. As a result of the [Bank's] actions, all the costs which had already been incurred up to that date were rendered futile. In addition, [Ms Bashour] had been forced to incur additional costs in seeking to rescue the VID107/2014 Proceedings from the train wreck created by the [Bank]." 21 She contended that the Bank's strike out and referral applications to VCAT were unreasonable and that, as a result, the Bank put her to unnecessary subsequent cost in resisting attempts by it to "derail" her proceedings, and have also meant that costs incurred by her, prior to the Bank's unreasonable act, were thrown away. 22 Once the Bank had secured the purported referral from VCAT to this Court it sought to persuade me that I should give leave to Ms Bashour to amend her statement of claim to incorporate in it the issues raised in the VCAT proceeding. Submissions to this effect were made by counsel then appearing for the Bank on 2 April 2015. They were persisted in as late as a hearing held on 1 June 2015. 23 These submissions confronted a number of difficulties which were referred to in the course of argument at successive directions hearings. The first was whether the purported referral from VCAT was legally efficacious and whether this Court could assume jurisdiction pursuant to it. A second was whether, assuming a valid referral, the issues could be pursued in this Court without antecedent procedural steps having been taken in the Fair Work Commission and the Australian Human Rights Commission. Yet another was whether a common substratum of facts underlay the issues of the proceeding in this Court and those raised in VCAT. This uncertainty existed because Ms Bashour's proceeding in this Court related to events which occurred before the termination of her employment and the VCAT proceeding related to the termination itself. 24 Further delay occurred whilst Ms Bashour sought the leave of the Supreme Court to commence her challenge to the VCAT's referral out of time. The Bank unsuccessfully resisted this application. It was only when the judicial review hearing was pending that the Bank finally conceded that the orders it sought and obtained from VCAT could not be supported and should be quashed. 25 The respondents opposed Ms Bashour's application for costs.

The respondents' application for costs 26 The respondents sought costs orders in their favour. They said that the "central question" on their costs application was why Ms Bashour now sought to discontinue this proceeding. If the reason was that Ms Bashour intended to re-agitate the same issues in the VCAT, said the respondents, then Ms Bashour had unreasonably put the respondents to the cost of defending this proceeding since February 2014. On the other hand, if the reason was that Ms Bashour saw this proceeding as no longer being necessary because most of the relief sought by her in it is now unavailable, the respondents contended that discontinuance should have occurred in October 2014, after the termination of Ms Bashour's employment. 27 The respondents relied on some passages in an affidavit which Ms Bashour filed in support of her first application for leave to discontinue this proceeding in which she deposed that she had resigned from the Bank on 1 October 2014 and that: "… Much of the relief I was seeking in this Proceeding turns upon my continued employment with the Bank and is now otiose. I make this application to discontinue this Proceeding on the grounds that most of the orders I seek in this Proceeding are no longer of any use to me now that I am no longer employed [at] the Bank." 28 The respondents also referred to two Calderbank offers which had been made to Ms Bashour in this proceeding in July 2014 and February 2015. Neither offer had been accepted by Ms Bashour. The respondents submitted that, as each of those Calderbank offers contemplated money passing into Ms Bashour's hands, and as discontinuance meant that she received nothing, this established the necessary comparative disadvantage. Alternatively, the respondents submitted that if, by reason of the proceeding in this Court having not progressed to judgment, the Court found it difficult to assess the reasonableness of the two Calderbank offers, the refusal of those offers was, in any case, evidence of Ms Bashour's "unreasonable conduct more generally". 29 Ms Bashour resisted the respondents' application.

Consideration - Ms Bashour's application 30 Ms Bashour seeks the following orders: "1. Leave to discontinue VID107/2014. 2. The [Bank] pay [Ms Bashour's] costs of the entire proceeding on an indemnity basis. 3. In the alternative to Order 2 above: (i) the [Bank] pay [Ms Bashour's] costs on an indemnity basis from 1 April 2015; and (ii) the [Bank] pay [Ms Bashour's] costs on an ordinary basis for the period prior to 1 April 2015. 4. In the alternative to Orders 2 and 3 above, the [Bank] pay [Ms Bashour's] costs of the entire proceeding on an ordinary basis. 5. In the alternative to Orders 2, 3, and 4 above: (i) the [Bank] pay [Ms Bashour's] costs on an ordinary basis from 1 April 2015; and (ii) there be no order as to costs in respect of the period prior to 1 April 2015. 6. In the alternative to Orders 2, 3, 4 and 5 above, there be no order as to costs. 7. Interest on costs. 8. Leave be granted to use the evidence filed by the parties in VID107/2014 in the VCAT proceeding H245/2014, and/or any related VCAT proceeding involving one or more of the Respondents in H245/2014 and/or VID107/2014" 31 It is convenient to commence by setting out (in very broad terms) the rationale underpinning Ms Bashour's application. It is this: while these Federal Court proceedings were on foot, Ms Bashour determined to bring a new proceeding in the VCAT. That VCAT proceeding, as she saw it, was unrelated to her existing Federal Court proceeding. The respondents saw things differently. Their view was that the two proceedings were interrelated and should be heard in the same place at the same time. With a view to procuring that outcome, they applied to the VCAT for an exercise of its s 77 power which (it was thought) would permit all aspects of the dispute to be resolved in this Court. 32 Ms Bashour resisted that application, which (it must be supposed) involved a desire on her part for the two proceedings to continue. At some point after the VCAT made the s 77 order, however, Ms Bashour determined to seek to have all issues determined in the same forum. This change in approach was detailed in her affidavit dated 28 October 2016, at [23(b)] and [23(f)]: "(b) … had the Strike Out Application and Strike Out Order not been pursued and made, I would have been prepared to proceed to final hearing in VID107/2014, with [it] being run as a damages case. In particular, I would have run VID107/2014 and then run the VCAT proceeding in respect of post-VID107/2014 conduct; … (f) since on or about 31 March 2015, in light of the derailment of both VID107/2014 and the VCAT proceeding, I have been willing to have the two proceedings proceed in the one forum, per the instigation and invitation of the Respondents … ." 33 As her representative sought to impress upon Mukhtar AsJ, of necessity (in light of the VCAT's order) that involved in the first place an investigation of whether that single forum could be this Court. Having come to the view, over time, that the issues the subject of the VCAT proceeding could not be replicated in the Federal Court, Ms Bashour embarked upon judicial review of the VCAT's order so as to re-enliven her proceeding in that forum. Heraim, as it was put to Mukhtar AsJ, was as follows: "HIS HONOUR: So reinstate means reinstate the pre-existing VCAT case and add to it a replication under State law of the Federal law case. Correct? MR HARMER: That's correct, Your Honour. …" 34 The final two subparagraphs of [23] of Ms Bashour's October affidavit complete the picture: "(f) … Accordingly, the parties to both VID107/2014 and the VCAT proceeding are in agreement that the two proceedings should proceed in one forum; and the amalgamation and transition of all of the controversies between the parties to VCAT, to be litigated through, at the very least, the constructive dismissal case, is being done in response to, and at the invitation of, the Respondents; and (g) as the constructive dismissal and victimisation aspects of the VCAT claim touch on the matters the subject of VID107/2014, on one interpretation of sections 725 and 734 of the [Act], a withdrawal or discontinuance of VID107/2014 is required to pursue the VCAT claim. Accordingly, there is a need to discontinue VID107/2014 to pursue all controversies in VCAT, per the preference of the Respondents to have all matters in the one forum." 35 In that context, says Ms Bashour, her costs in preparing this proceeding for hearing were wasted, and she was forced to incur additional costs to rectify what she says were problems created by the respondents' conduct. 36 There are three issues which have the potential to arise, the resolution of which bears on the question of whether costs can or should be awarded to Ms Bashour in respect of the period before 1 April 2015. It will be remembered that it was about 1 April 2015 (in fact, 20 March 2015, but little turns on this for present purposes) that the VCAT made the impugned order. The issues and the competing submissions relating to them are: (1) Ms Bashour's costs application is predicated in part on the assumption that costs incurred by her prior to 1 April 2015 have been thrown away. The respondents say that the costs were not thrown away; (2) It was on 1 April 2015 that Ms Bashour appointed solicitors. Before that date, she was self-represented and, so the respondents contend, was precluded from making any claim for costs; and (3) Relatedly, the conduct that Ms Bashour says is unreasonable - the making and maintaining of the respondents' submission in the VCAT that it ought to refer her claim in that Tribunal to this Court - crystallised with the VCAT making its 20 March 2015 order. The question which thus arises is whether these allegedly "unreasonable act[s] or omission[s]" can be said to have "caused [Ms Bashour] to incur" any costs prior to that date, within the meaning of s 570(2)(b). 37 For the reasons which follow I accept the respondents' submissions on the first point. As a result it is not necessary to resolve the other issues.

Were costs incurred by Ms Bashour prior to 1 April 2015 thrown away because of acts or omissions by the respondents? 38 The respondents submit as follows: "The steps taken by [Ms Bashour] in the Federal Court have not, by reason of the Respondents' VCAT strike out application, been transformed into wasted work. [Ms Bashour] could, and still may, run her Federal Court trial if she wishes to. The fact that she does not want to do so is telling - and is nothing to do with the Respondents' conduct. If, as [Ms Bashour] asserts now (contrary to her previous deposition), she was always willing to run the Federal Court trial, then she is not prevented from doing so now, and her preparation for that hearing is obviously not futile." 39 Ms Bashour now wishes to discontinue this proceeding. If work done in preparing it for trial cannot be utilised elsewhere, her costs will have been "wasted" in the sense that they will have been incurred for no useful purpose. The real question, which is implicitly raised in the respondents' submissions, is whether Ms Bashour seeks to discontinue because of the respondents' allegedly unreasonable act, or for reasons extraneous thereto. There is also an apparent but questionable assumption by Ms Bashour that nothing done by her in preparing for trial in this Court will be of benefit to her in the proposed VCAT litigation. 40 Nothing in Ms Bashour's submissions in reply, dated 9 December 2016, is directly responsive to this submission. At [38], Ms Bashour submits that "[c]ontrary to the Respondent's submissions [including at the relevant paragraph], the Respondents' conduct in relation to [Ms Bashour's] VCAT claim and subsequent Supreme Court proceedings had a very real and immediate effect on Proceedings VID 107/2014." But that was not the respondents' point. Rather, the point was that, if Ms Bashour is discontinuing the proceeding for reasons extraneous to the respondents' allegedly-unreasonable conduct, then the basis of her application - that the respondents' unreasonable act caused her to incur costs - cannot be sustained. 41 Ms Bashour's intention in respect of the subject matter of this proceeding is relevant in the context of the respondents' costs application and is considered below, at [131]-[134] in particular. As I record at [134], I find that Ms Bashour does not intend to seek in VCAT the relief that she sought in this proceeding, but rather intends to pursue the causes of action initially raised in her VCAT application, in part on the basis of facts asserted and relied upon in this proceeding. 42 What is less-squarely addressed is why Ms Bashour's previous intention - to pursue this proceeding and (if possible) her VCAT proceeding separately - has changed. Ms Bashour says (at [23] of her October affidavit) that her reasons for discontinuing include: that much of the relief sought in this proceeding is no longer available; that, had it not been for the respondents' application in the VCAT, she would have pursued both proceedings and this proceeding would likely have proceeded in April 2015; that the respondents have "pressed that [she] combine [her] … proceedings"; that (in short) the present proceeding cannot easily accommodate the claims that are presently in VCAT (due to jurisdictional issues); and, that (again, in short) Ms Bashour therefore formed a view, on 31 March 2015, that it was preferable that the two matters be pursued in one jurisdiction, "in light of the derailment of both VID107/2014 and the VCAT proceeding … per the instigation and invitation of the Respondents". 43 In response, Mr Michael Tamvakologos, the respondents' solicitor, deposed as follows: "[128] At paragraph 23(f) of [Ms Bashour's] affidavit, [Ms Bashour] says that the parties are in agreement that the Federal Court Proceeding and the VCAT Proceeding should proceed in one forum and that all of the controversies between the parties should be transitioned back to VCAT. This oversimplifies the current position. While the Respondents have always been cognisant of the efficiency to be derived from having all matters pertaining to [Ms Bashour's] complaints in relation to her employment with the [Bank] heard in one jurisdiction, it is in fact [Ms Bashour] who has resisted this course until recently. [129] By reason of the manner in which [Ms Bashour] has conducted the proceedings in all jurisdictions to date, it cannot be said that the Respondents are now in agreement with [Ms Bashour] that the matters the subject of the Federal Court Proceeding should now be re-agitated in VCAT. If the matters the subject of the Federal Court Proceeding are re-agitated in VCAT, the Respondents will incur additional expense defending these matters a second time. It is for this reason the Respondents' [sic] seek recompense for their wasted costs in the Federal Court." 44 In reply, Ms Bashour said only that Mr Tamvakologos was wrong to suggest her agreement to pursuing all matters in the same jurisdiction was a recent development. She re-iterated that that had been her position since 31 March 2015. But this, too, fails to address why Ms Bashour then altered her position. The submission that it was because of the respondents' invitation and instigation is not of assistance. Ms Bashour has pursued her own course in this litigation. I have no hesitation in finding that, if Ms Bashour has decided to pursue litigation in one forum rather than two, that is because she has formed the view (presumably on advice) that such a course is in her interests. 45 Further relevant submissions were made in the directions hearing of 2 April 2015 - not long after the VCAT's impugned order. Ms Bashour's solicitor made this submission: "In terms of the decision by VCAT, which your Honour has had the opportunity to read, your Honour will have observed that there are a number of observations made concerning the notion that the VCAT proceeding and the matter currently before this court do flow from an underlying substratum of facts, which is common, and we don't dispute that, your Honour, and that there seem to be significant deficiencies [sic; scilicet "efficiencies"] in the administration of justice if the VCAT matter was referred before this court - and, again, your Honour, we're not in a position to dispute that. Indeed, we agree to it." (Emphasis added.) 46 In the course of a directions hearing on 1 June 2015, Ms Bashour's solicitor made this further submission: "It appears the parties are at least agreed that it would be most efficient in the disposal of justice in this matter to have the matter originally initiated in VCAT and the current Federal Court proceeding dealt with as one controversy. Your Honour, where we have run into difficulty is getting agreement on how exactly we achieve that … ." (Emphasis added.) 47 Taking all of these explanations into account, the better view appears to me to be that, if Ms Bashour's costs incurred prior to 1 April 2015 were thrown away, they were not thrown away by reason of any unreasonable conduct on the part of the respondents. A significant reason why this proceeding diminished in importance was the termination of Ms Bashour's contract of employment, which rendered otiose much of the relief sought by her in this Court. Another important consideration appears to have been the admitted efficiency of pursuing matters in one jurisdiction rather than two, and Ms Bashour's preference that the VCAT be that jurisdiction. 48 The only link with the respondents' allegedly-unreasonable conduct is that the making of the application in VCAT evidently caused Ms Bashour to re-evaluate her approach to this proceeding. As at 17 March 2015, Ms Bashour decided to discontinue. By 31 March 2015, she had changed her mind and had appointed solicitors. That same day, on her evidence, she came to the view that it was preferable to pursue proceedings in one jurisdiction. Largely by reason of matters which came to her attention after she retained solicitors she determined to pursue all her claims in the VCAT. 49 I do not consider that an adequate causative relationship has been shown between the respondents' impugned conduct and Ms Bashour's decision to discontinue this proceeding. Accordingly, in my judgment, if costs incurred prior to 1 April 2015 have been thrown away, that was not caused by the conduct of the respondents, within the meaning of s 570(2)(b). For that reason, any award of costs in Ms Bashour's favour could not include costs incurred before that date. 50 The other relevant matter in this context is that, as I have said, Ms Bashour intends to rely in the VCAT upon facts asserted in this proceeding. To this end she seeks leave to use, in the VCAT, the affidavits filed in this proceeding. The work done in preparing those affidavits will, as a result, have been useful work. While I could not say that all work done for this proceeding will be of use in the VCAT proceeding, such that no costs are properly to be seen as having been thrown away, it seems to me that much of the work done in this proceeding does fall into that category. If, contrary to the conclusion I set out in the previous paragraph, it were considered appropriate to award costs to Ms Bashour in respect of the period prior to 1 April 2015, I would have ordered that account be taken of the extent to which work done prior to that date will not, in fact, be thrown away.

Causation and s 570(2)(b) - some further observations 51 The parties' submissions raised some additional issues relating to the causative link between the respondents' conduct and its alleged impact on Ms Bashour's costs. 52 Section 570(2)(b) of the Act, upon which Ms Bashour relied, requires that the "unreasonable act or omission" of a party have "caused the other party to incur the costs" (emphasis added). All parties' submissions, but in particular Ms Bashour's, raise this question: how can an event occurring after the incurring of costs have caused the incurring of those costs? 53 Sometimes, perhaps often, problems of this kind could be circumvented by reliance upon an alternative allegation. Instead of seeking to recover costs thrown away on an amendment application, it might be argued that the filing of the original pleading was unreasonable (as was done in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392). Abandonment of an untenable argument could be characterised as an unreasonable omission earlier to abandon the argument. It might also be claimed that it was unreasonable to advance the argument in the first place. 54 However, the criticism that Ms Bashour makes of the respondents' application in the VCAT is not that it should have been made earlier, but that it should not have been made at all. It is difficult to see how the act of making of a legally-flawed application, which occurred in December 2014 (and was determined in March 2015), can be characterised as a relevant act or omission. Thus, the question I have set out at [52] arises in respect of Ms Bashour's claim for costs incurred prior to April 2015. 55 Ms Bashour confronts this issue in her primary submissions. She submitted, at [3.11], that a second criterion for the operation of the predecessor to s 570(2)(b) was described in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 as being that the act or omission have "caused another party to the proceeding to incur costs in connection with the proceeding". Then, at [3.21]-[3.23], she submitted as follows: "[3.21] The circumstance in which costs incurred by one party subsequently became thrown away or wasted as a result of a later act by the other party was considered to be comprehended by the section in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 at [37] per Tracey J. In this case His Honour Justice Tracey focused on the unreasonable act of the applicant having the effect of causing the costs incurred by the respondent to be thrown away. [3.22] It is [Ms Bashour's] submission that the effect of the [Bank's] unreasonable conduct is such that the Court should exercise its discretion to award costs for the entirety of the VID 107/2014 Proceedings. [3.23] Even if a narrow reading of the second criteria [sic] set out in Clarke above is insisted upon such that only costs which are incurred subsequent to the unreasonable act or omission are reasonable, then costs incurred by [Ms Bashour] from 1 April 2015 clearly fit within that category." 56 I reject Ms Bashour's submission that, in Qantas (No 3), I considered this issue and resolved it in favour of the reading for which Ms Bashour now contends. The issue did not there arise, as is apparent from a reading of [37]: "There remains the issue of whether the applicant should pay the respondent's costs thrown away in relation to the hearing on 9 May 2007. In my view such an order should be made. The hearing did not proceed on that day because the applicant had failed to comply with the Court's directions as to the filing and service of submissions relating to the costs issue. This had occurred because of a unilateral decision by the applicant that it wished to pursue settlement discussions with the respondent. Had it wished to be relieved of the obligation to file submissions, the appropriate course was to apply to the Court to vary the directions which had earlier been made. Had it done so costs would not have been thrown away on 9 May 2007, although costs of any motion to vary the orders may have been payable. In failing to comply with the Court's directions and not seeking, in an appropriate manner, to be relieved of its obligation the applicant acted unreasonably." 57 The failure to comply with directions certainly preceded the costs of the hearing of 9 May 2007. It is possible that some of the costs thrown away "in relation to the hearing" - e.g., preparatory costs - preceded the failure to comply, but that is not apparent from the judgment, and in any event the point was not argued. Qantas (No 3) is not authority for the proposition for which Ms Bashour contends. 58 Ms Bashour's submissions were not directed specifically to how I might read s 570(2)(b) as dealing with costs incurred prior to the allegedly-causative act. It does not appear to me that the respondents addressed the issue at all. 59 This issue is potentially of general importance. It is arguably not an easy issue. On the one hand, the words of the section are tolerably clear, and if costs were incurred before the act or omission, it is difficult to say that their incurring was caused by the act or omission. On the other hand, that interpretation would arguably give rise to anomalies or lacunae in the operation of the section. 60 In the absence of detailed argument on the question, and as I have not found it necessary to resolve it, I do not propose to express a concluded view. It is a matter better left for a case in which it squarely and necessarily arises.

The Chorley exception 61 This issue, likewise, only arises in case I am wrong in reaching the conclusions recorded at [48]-[49]. Unlike the construction point relating to s 570(2)(b), this point was fully ventilated in the parties' submissions and so I think it appropriate to record that, in my judgment, Ms Bashour would not be barred from recovering costs prior to 1 April 2015 by reason of the rule that a litigant in person is not entitled to costs. That is because she falls within the exception to that rule established by London Scottish Benefit Society v Chorley (1884) 13 QBD 872. 62 The respondents correctly submit that Cachia v Hanes (1994) 179 CLR 403 stands generally for the proposition that a litigant in person is not entitled to costs (see at 410-111 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ). The respondents acknowledged the exception contemplated in Chorley, relating to legal practitioners appearing for themselves in litigation, but said that it could not apply because "there [was] no evidence … that [Ms Bashour] held at the relevant time an Australian practising certificate." In response, Ms Bashour exhibited to an affidavit her Victorian practising certificates covering the period 1 July 2013 to 30 June 2015. The respondents submitted in reply (on the bases that I will consider below) that the Chorley exception was nevertheless inapplicable. 63 The exception and its rationale were set out in the reasons of the majority in Cachia, at 411: "A somewhat anomalous exception was introduced by London Scottish Benefit Society v. Chorley in which a solicitor successfully acted for himself in litigation. It was held that he was entitled to the same costs as if he had employed a solicitor, except for items such as obtaining instructions or attendances, which were unnecessary because he was his own client. The justification given for the privileged position afforded to a solicitor acting for himself is somewhat dubious, but it serves to emphasize the general rule. Brett M.R. put it thus: 'I cannot think that any privilege of a solicitor exists. I am wholly unable to agree to any argument standing upon that footing. I should have thought that a person wrongfully brought into litigation ought to be indemnified against the expenses to which he is unjustly put; but there cannot be a perfect indemnity, because it is impossible to determine how much of the costs is incurred through his own over-anxiety. When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him. When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for himself, but also he can employ another solicitor to do them for him; and it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor.'" (Citations omitted.) 64 The Chorley exception was also considered in Guss v Veenhuizen (1976) 136 CLR 47. There, Gibbs ACJ, Jacobs and Aickin JJ said (at 51-52) as follows: "The appellant did not claim costs incurred by him in retaining the professional services of a solicitor in his litigation. He appeared in person. He sought taxation of costs on the basis that he was a solicitor who acted for himself and did so according to the well established rule of practice which entitles a person, being a solicitor, to certain professional costs in those circumstances. London Scottish Benefit Society v. Chorley, Crawford and Chester. See also H. Tolputt & Co. Ltd. v. Mole. Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers. … The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred. The answer depends on the true basis of the rule. Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the Court, should not have the benefit of the rule of practice." (Emphasis added; citations removed.) 65 The Chorley exception has been much criticised, but it has not been overturned. Its application in Australian courts subsequent to Guss was surveyed by Mortimer J in Beling v Sixty International SA (2015) 228 FCR 194 at [53]-[55]. Her Honour said that: "[56] Although recognised as anomalous, in circumstances where courts have power to award costs, it is well established that this power may be exercised in favour of a self-represented party where that party is a lawyer. I have no difficulty in adding to the many judicial voices who have said this exception is unjustified, especially in contemporary litigation where it ignores the other aspects of the relationship of lawyer and client and the contractual basis for a party being liable to her or his lawyer for the cost of work performed. Lawyers, like anyone else, are capable of retaining legal representation if they wish to, and should, like anyone else, incur liability for such representation. If a lawyer wishes to represent herself or himself, in my opinion she or he should be treated like any other self-represented party. [57] That is not, however, the law. Despite the persuasiveness of Dobree, and the fact that no such exception applies in Western Australia, so far as decisions of this Court are concerned the solicitor litigant exception continues to be recognised." 66 In Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, the New South Wales Court of Appeal (Beazley P, Meagher and Payne JJA) likewise considered that, notwithstanding sustained criticism of Chorley, it was bound by Guss to apply the principle (at [28]-[29]). 67 The respondents submitted that the Chorley principle was anomalous and confined in its application. The lawyer, it was submitted, must demonstrate that he or she has a current practising certificate and that his or her name appears on the roll of practitioners (citing George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 at [14]). The principle is applied strictly (citing Tyne v UBS AG (No 2) [2014] FCA 1228). The requirement is that the lawyer be capable of representing a private litigant, such as himself or herself, in the relevant court (citing Rambaldi v Woodward (No 2) [2013] FCA 104). But even if all of those submissions were accepted, that would not assist the respondents: Ms Bashour has provided Victorian practising certificates and a certificate confirming her entry, in 2003, in the Register of Practitioners kept at the Registry of the High Court of Australia. I have no reason for finding otherwise than that Ms Bashour would have been entitled to appear, at relevant times, as a solicitor, in this Court. 68 The respondents next submitted that the Chorley exception is "limited to costs in favour of litigants who are the solicitor on the record". A chart was provided setting out the occasions on which Ms Bashour had referred to herself as unemployed and self-represented, rather than as a "solicitor on the record". The respondents submitted: "In short, [Ms Bashour] … describes herself as unrepresented and disadvantaged, but simultaneously calls upon the Court to make an order of costs in her favour, premised upon her having supplied legal services to herself, as a professional lawyer. Ms Bashour ought not be permitted to have it both ways." 69 This seems to me to be a distinction without difference. The rationale for the Chorley rule does not turn on something so immaterial as whether a litigant in person describes himself or herself as "self-represented" or as "acting for himself or herself". "Unrepresented" is nothing more than a term of art meaning that the litigant represents himself or herself. And there is nothing necessarily illogical about a self-represented lawyer stating that he or she is disadvantaged by the need to the conduct litigation himself or herself rather than retaining a firm of solicitors. I think there is no basis, in the terms of the Chorley exception, for distinguishing between categories of self-representing lawyers in the way for which the respondents contend. 70 The respondents submitted that the Chorley exception "attaches to currently practising lawyers who count themselves among their clients". They continued: "The rationale for this is clear: a self-represented litigant who provides legal services to [himself or herself] (instead of to fee paying clients of [his or her] firm or practice) is providing a service of value to [himself or herself] in the proceedings, and at the same time is being 'taken away' from [his or her] other fee paying legal work in [his or her] usual practice." It is submitted that the Chorley exception could never have been intended to apply to circumstances in which an unrepresented litigant who happens to possess legal qualifications, but who is not providing legal services to clients, would enjoy the windfall of charging out [his or her] time devoted to the prosecution of [his or her] own litigation." 71 There are, in my view, three difficulties with the respondents' submissions. 72 The first is that its predicate - that the rationale for the Chorley exception is opportunity cost - is not, in my view, made out. In Guss, the High Court addressed directly the rationale for the Chorley exception, and said that it was that the costs of a solicitor can be quantified, whereas the costs of a non-solicitor litigant cannot. Similarly, in Worchild v Petersen [2008] QCA 26 at [4], MacKenzie JA (McMurdo P and Holmes JA agreeing) described the principle in Guss as being that "a solicitor who appears in person is entitled to costs for his professional time, not because he is a solicitor in the formal sense, but because, being a solicitor, his costs can be quantified" (emphasis added). If, as I think follows from Guss, the Chorley exception is not predicated on opportunity cost in a solicitor litigant, the absence of opportunity cost does not deny its application. That would be enough to reject the respondents' submissions. 73 There is, however, some support for the proposition that opportunity cost underpins Chorley. In Atlas v Kalyk [2001] NSWCA 10 at [9], Handley JA (Meagher and Sheller JJA agreeing) said as follows: "It is nevertheless clear that the majority did not overrule Guss v Veenhuizen [No 2] and their statements about the position in the case of solicitors acting for themselves in litigation were only dicta. It might be said, with respect, that although solicitors representing themselves in litigation have no need of any indemnity against professional costs paid or payable to another practitioner, there is still scope for the indemnity principle. Such solicitors will have spent time and trouble representing themselves and, to that extent, they will have lost the opportunity of using that time doing professional work for other clients and being remunerated accordingly. The indemnity in the case of solicitor litigants is, therefore, against the opportunity cost rather than the direct cost of their professional time spent on their own case." (Emphasis added.) 74 Inasmuch as an opportunity cost justification differs from a measurement justification, I would be bound to follow Guss and hold that the latter is the true basis for the Chorley exception. 75 In any case, I am not convinced that an opportunity cost rationale, standing by itself, adequately explains the Chorley exception. Anyone's time can be valued. Thus, in order for the measurement justification to withstand scrutiny, there must be some basis for distinguishing the measurement of the value of time spent or work done by self-represented lawyers from the measurement of the value of time spent or work done by other self-represented persons. That basis must be that the lawyer's time-cost is a relevant measure because it measures the value of legal work. An architect's time-cost would not be a relevant measure because that is the value of the architect's architectural work. The hypothesis underpinning the measurement justification must be that the value of the architect's legal work is not possible to measure. That explains why the lawyer is entitled to costs representing the value of legal work, but the architect is not. 76 An opportunity cost rationale does not provide a similar basis for distinguishing between self-represented lawyers and other self-represented persons. The rationale for awarding costs to a solicitor because he or she could have been doing other remunerative work (as it happens, as a solicitor) would provide no basis for refusing to award costs to an architect, who could also have been doing other remunerative work (as it happens, as an architect). 77 If one accepts, as I must (consistently with authority), that the general rule is that self-represented litigants are not to be awarded costs, but that solicitor self-represented litigants may be awarded costs, the internal logic of that rule and exception seems to me to exclude a purely opportunity cost rationale. Rather, consistently with Guss, the rationale must be that the value of legal work done by a lawyer can be quantified, whereas the value of legal work done by (say) an architect cannot. 78 Further, it seems to me that, even if one were to accept that opportunity cost was part of the justification for Chorley, that would not avail the respondents. That is because either rationale - a measurement justification or an opportunity cost justification - would be an explanation for why the Chorley rule exists, rather than a precondition to the application of the exception in particular cases or a basis for quantification. Put in another way, there does not seem to me to be any basis in the decided cases for denying costs where, for example, it is possible to prove that a solicitor litigant did not have any other billable work to do on a court day (so that there was no opportunity cost). Nor has an absence of evidence of the actual hourly rate charged by a solicitor to clients precluded an award of costs (cf Beling v Sixty International SA (No 2) [2015] FCA 355 at [51], [57]). 79 The final response to the respondents' submissions is that the application of the Chorley exception to the costs of an unemployed solicitor has been considered before and was resolved unfavourably to the respondents' contention. 80 A costs review panel was called upon to consider whether costs ought to be awarded in favour of an unemployed solicitor, who had given evidence that his practice, such as it was, consisted of the following (see Khera v Jones [2005] NSWSC 122 at [16]): "I was last employed as a senior solicitor until 26 April 2002. My charge out rate at that time was $300 per hour plus GST. I have been unemployed since that time but have been working 10 to 30 hours per week as a solicitor in acting for myself in a number of legal proceedings and disputes, in collecting debts from my old Avalon practice, in carrying out my duties as Receiver and Manager of Kheras The Law Firm, in seeking employment and following up practices for sale or partnership opportunities, and in other activities associated with being a solicitor. Much of the time spent in acting for myself has been in the current District Court proceedings with Mr Khera, or in other litigation or disputes involving Mr Khera or his wife." 81 As is expressly acknowledged in that quotation, although the solicitor - Mr Jones - was engaged in various kinds of work that might be described as solicitor's work, all of it was for himself and there was no evidence that he had clients. The costs assessor allowed Mr Jones's costs. Mr Khera appealed, unsuccessfully: Khera [2005] NSWSC 122. Mr Khera sought leave to further appeal. Leave was not granted: Khera v Jones [2006] NSWCA 85. The Court (Mason P and Ipp JA) said as follows at [6]: "Were the matter uncluttered by authority we would favour the approach in Dobree. But there is little reason to think that this Court would depart from its firm and comparatively recent decision in Atlas. Nor are the prospects of engrafting an exception on the Chorley exception, relating to "unemployed" solicitors, of sufficient weight to merit a grant of leave that would add a further costly chapter to this litigation. These matters could only be addressed by the High Court." 82 If it were necessary to resolve the issue, I would have held that Ms Bashour fell within the Chorley exception and was not barred, on account of being a self-representing litigant, from recovering costs prior to 1 April 2015. Were I to be wrong about this, I would, nevertheless, have held that Ms Bashour could theoretically recover the ad hoc costs of her barrister incurred from time to time prior to 1 April 2015.

Should Ms Bashour have her costs incurred after 1 April 2015? 83 The consequence of the conclusions I have set out at [48]-[49] above is that only the costs incurred by Ms Bashour post-1 April 2015 remain in issue. 84 The "unreasonable act" on which Ms Bashour relied in respect of this period is detailed from [4.1]-[4.50] of her principal submission on costs. At [4.6], Ms Bashour submitted that the respondents advanced to the VCAT three bases on which this Court had jurisdiction: "(a) the VID107/2014 Proceedings could be amended to include the subject matter of the VCAT proceeding under the FW Act; (b) the associated jurisdiction of the Federal Court under section 32 of the FCA Act enabled the Federal Court to exercise jurisdiction under the Equal Opportunity Act 2010 (Vic); and (c) the subject matter of the VCAT Proceedings could be heard by the Federal Court by means of a claim under the Disability Discrimination Act 1992 (Cth)." 85 This was described as having been a misconceived basis for referral. From [4.7] to [4.22], Ms Bashour set out exchanges between her solicitors and the respondents' solicitors and between various judicial officers (including me) and the parties. The purpose of this appeared to be to support a submission to the effect that the respondents ought to have known or realised that their submissions concerning jurisdiction were "misconceived" and that they ought not to have persisted in attempts to bring the entire controversy into this forum. From [4.23] to [4.27], Ms Bashour developed the submission that this Court does not have jurisdiction to deal with the matters the subject of the VCAT proceeding. At [4.28], she stated as follows: "Thus, the [Bank's] conduct in: (a) applying to have the VCAT Proceedings transferred to the Federal Court when the Federal Court did not have jurisdiction to entertain the VCAT Proceedings; and (b) continuing to maintain that the Federal Court had jurisdiction to entertain the VCAT Proceedings constituted unreasonable acts." 86 From [4.29] to [4.43], Ms Bashour submitted that, had it not been for the respondents' application in the VCAT, the hearing of the proceeding in this Court would have proceeded on 27 April 2015. Instead, that hearing was vacated, and Ms Bashour's preparation was "rendered futile". She concluded that it was "the unreasonable acts of the [Bank] that jettisoned the final hearing." 87 From [4.44] to [4.50], Ms Bashour sought to distinguish the acts of the respondents in this proceeding from a party's adoption of "a genuine but misguided approach" (cf Rentuza v Westside Auto Wholesale (2009) 190 IR 207 at [28] (Lucev FM). She submitted that the respondents' conduct went "far beyond a genuine but misguided approach", and caused a "train wreck" to occur. She continued: "[4.48] It was unreasonable conduct to seek the referral of the VCAT Proceedings to the Federal Court on the basis of submissions that the Federal Court had jurisdiction to hear the VCAT Proceedings when each of the avenues of apparent jurisdiction were [sic] fundamentally misconceived. This was compounded by the fact that the transfer of that proceeding would (in the [Bank's] own submission) probably result in the loss of the VID107/2014 Proceedings trial dates, which was listed just five weeks after the referral decision was made. The VID107/2014 Proceedings had been on foot for approximately 13 months by the date of Her Honour Judge Harbison's order. Further, as has been confirmed by Their Honours Justice Tracey, Associate Justice Mukhtar, and Justice McDonald, there was no substantive legal basis for these arguments to be put to VCAT. [4.49] By continuing to assert that the Federal Court had jurisdiction until at least June 2015 when it clearly did not, the [Bank] committed a further unreasonable act." (Emphasis supplied.) 88 Ms Bashour submitted as follows at [4.50]: "In these circumstances, it is appropriate for costs to be awarded against the [Bank]. These costs should include both costs thrown away as a result of the [Bank's] unreasonable acts and costs unnecessarily incurred in an attempt to contend with the [Bank's] unreasonable act." (Emphasis supplied.) 89 In response, and again I am here summarising, the respondents make the following points: (1) Ms Bashour already has an order for costs in the Victorian Supreme Court, and it is important to avoid double recovery - which is to say, the respondents' conduct has not caused the applicant to incur additional relevant costs in this jurisdiction; and (2) the submissions made by Ms Bashour concerning this Court's jurisdiction, the respondents' conduct, and her own conduct, ought not to be accepted - in other words, it ought not to be accepted that the respondents acted unreasonably.

Avoidance of double recovery - what costs are in issue? 90 As the respondents submit, an order has already been made in the Victorian Supreme Court that Ms Bashour have her costs of the proceeding in that Court: Bashour [2016] VSC 666 at [24]. I accept the respondents' submission that any award of costs in this Court must exclude costs that are already captured by that order. 91 For the same reason, costs incurred by Ms Bashour in respect of the VCAT proceeding are a matter for the VCAT (cf Bashour [2016] VSC 666 at [22]). 92 That seems to me to be likely to account for a large proportion of the costs incurred by Ms Bashour in connection with the respondents' allegedly-unreasonable conduct. This Court has not been called upon to make any determination of any issue in relation to the VCAT's jurisdiction to make an order under s 77, nor in relation to its own jurisdiction. Costs incurred by Ms Bashour in respect of those questions are more closely connected with the running of the judicial review application in the Victorian Supreme Court. 93 The avoidance of double-recovery is a matter for the agreement of the parties or, failing that, a taxing officer. It would be inappropriate for me to deny Ms Bashour any costs in order to avoid double recovery. There are at least some costs that are likely to have been incurred and that relate only to this proceeding, including the costs specifically related to preparation for and appearance at directions hearings subsequent to 1 April 2015. 94 Double recovery, therefore, is not a complete answer to Ms Bashour's application. The next question is whether there was an unreasonable act or omission on the part of the respondents so as to enliven the costs jurisdiction in the first place.

Did the respondents act unreasonably? 95 In order for the costs jurisdiction to be enlivened, it must relevantly be found that an "unreasonable act or omission [by one or more of the respondents] caused [Ms Bashour] to incur … costs." It is not necessary that the act or omission have occurred within the proceeding: Sydney Ferries Corporation v Australian Maritime Officers Union (2008) 178 IR 450 at [32] (Black CJ, North and Buchanan JJ). As already recorded, Ms Bashour alleged that the respondents' unreasonable act was "to seek the referral of the VCAT Proceedings to the Federal Court on the basis of submissions that the Federal Court had jurisdiction to hear the VCAT Proceedings when each of the avenues of apparent jurisdiction [was] fundamentally misconceived." 96 It is now not in contest that the VCAT's order was vitiated by error, and it was held by McDonald J in Bashour [2016] VSC 666, at [21]-[22], that the source of that error was submissions made by the respondents. 97 On 9 December 2014, the respondents applied to VCAT for (relevantly) the following orders: "1. pursuant to section 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the Act), the whole of proceeding No. H245/2014 (the proceeding) be struck out; 2. further to order 1 above, the proceeding be referred to the Federal Court of Australia pursuant to section 77(3) of the Act; …" 98 The orders ultimately made were similar: "1 The whole of the proceeding be struck out pursuant to section 77(1) of the Victorian Civil and Administrative Tribunal Act 1998. 2 The subject matter of the proceeding be referred to the Federal Court of Australia pursuant to section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998." 99 The respondents filed written submissions in the VCAT dated 16 January 2015. They submitted that "the VCAT proceeding is more appropriately dealt with in the Federal Court". It was submitted that there was a "single justiciable controversy" and a "common substratum of facts". Paragraphs [24] to [27] dealt with the question whether there was a common substratum. Reference was made to Fencott v Muller (1983) 152 CLR 570, a case concerning accrued jurisdiction. The submission at [27] was that "all the claims, federal and non-federal, should be regarded as arising in the one matter". This kind of terminology is directed at the Court's accrued jurisdiction. 100 At [34], the respondents submitted as follows: "A critical consideration in an application to have a second, related proceeding struck out is whether the court or tribunal in which the earlier proceeding was commenced has jurisdiction to deal with everything raised in the later proceeding. There is no reason why Ms Bashour cannot prosecute her claims under the EO Act in the Federal Court. It is submitted that in this case, the Court's accrued jurisdiction confers on it the power to settle all of the issues that arise out of the controversy between the parties, including Ms Bashour's non-federal claims." A footnote at the end of that extract referred to Fencott and said that it stood for the proposition that "a federal court has jurisdiction to hear and determine a non-federal claim under state law or common law provided it arises from the same transactions and facts, or 'single justiciable controversy'." That is a legally unobjectionable submission. 101 Ms Bashour's submissions also addressed the question of jurisdiction in language that recalled the Court's accrued jurisdiction (see, e.g., [11] and [12]). Her citations were of accrued-jurisdiction cases, such as Re Wakim; Ex parte McNally (1999) 198 CLR 511. The term "accrued jurisdiction" was used at [14]. 102 In reply, the respondents likewise referred to accrued jurisdiction (see, e.g., at [23]), and used the language of "single justiciable controversy" arising from accrued jurisdiction cases. The submissions went into some detail (from [23] to [35]) concerning the commonalities in the facts alleged in the two proceedings. 103 In oral submissions to the VCAT on 24 February 2015, matters became confused. The following submissions were made by the respondents' counsel: "Now, your Honour, the fact that the Equal Opportunity Act might give rise to certain courses of action, or certain remedies that this tribunal can grant is not the answer because the Federal Court can exercise non-federal jurisdiction. So it's - there is - it is no answer to our application to say that the applicant is shut out of anything because the Federal Court clearly has the ability in its associated jurisdiction to exercise non-federal jurisdiction, whether it be common law in relation to breaches of contract or whether it be jurisdiction in relation to State legislation. … And what Parliament has provided is the discretion for the tribunal to refer matters elsewhere, in circumstances where it is more convenient for that to occur, and that is what we rely on. If there be any doubt about the jurisdiction of the Federal Court to deal with an equal opportunity matter it's ….. by section 32 of the Federal Court Act. … I've got a copy of that if that might assist. … And your Honour will see that the Federal Court has power - has jurisdiction in associated matters. So they are matters that are not otherwise within its jurisdiction but are associated with matters in its jurisdiction. [HER HONOUR]: It says to the extent that the Constitution permits. Is that a bar? MR FORBES: That's not a bar here. … [HER HONOUR]: … [I]f , for instance, the Equal Opportunity Act allowed as a remedy to put an advertisement in the newspaper but the Federal Court didn't, the Federal Court thought that it was appropriate to use that jurisdictional power under the Equal Opportunity Act, they could - the Federal Court could use section 32 in that way. MR FORBES: If - it would always have to come within the ambit of it being an associated matter. … What the authorities say is that you do read the associated matter widely so that it embraces the entire justiciable controversy between the parties. … MR FORBES: … So the Federal Court Act gives the Federal Court power in relation to associated matters but it doesn't say what an associated matter is. But an associated matter are really all those matters that come within the ambit of this concept of a single justiciable controversy. … And I have referred in our submissions to the High Court authority in Fencott & Others v Muller & Others." 104 Ms Bashour dealt with the respondents' submissions in the terms in which they were put, which is to say that she referred to s 32 of the FCA Act but by reference to a "single justiciable controversy" test and to cases such as Fencott. Written submissions filed by Ms Bashour after the hearing reverted to references to "accrued jurisdiction". Written submissions filed by the respondents maintained the reference to s 32 and to associated jurisdiction. It was said that "this authorises the Federal Court to hear matters under the common law or state legislation which are 'associated' in the sense of being 'closely related' or because they have 'common transactions and facts' with the federal matters. These concepts are dealt with in the Respondents' earlier submissions." 105 It is now accepted that reliance on s 32 of the FCA Act was in error. Further, Mukhtar AsJ observed (at [28] of Bashour [2016] VSC 527) that it can be "argued strongly" that in making a referral under s 77(3) the VCAT purported to confer State jurisdiction on the Federal Court (which it could not do: Re Wakim). That observation appears to have been picked up by McDonald J at [20] of Bashour [2016] VSC 666, where his Honour said that the referral power in s 77 cannot empower the VCAT to refer a matter to a federal court. If the respondents are understood to have submitted that the VCAT could confer State jurisdiction on the Federal Court, and if they submitted that s 32 of the FCA Act was somehow the vehicle for such a conferral, they were in error. 106 I do not, however, understand the respondents to have made such a submission. In their final written submissions, at [11], they expressly disowned the submission that s 77 enabled the conferring of State jurisdiction on a Federal court: "It is not to the point that the Victorian Parliament is not empowered to affect the jurisdiction of Commonwealth courts. The submission that the Federal Parliament retains exclusive power over the jurisdiction of federal courts is unremarkable. Respectfully, the Applicant misunderstands the operation and effect of section 77 of the VCAT Act as it does not purport to create jurisdiction in, nor intrude upon the jurisdiction of non-Victorian tribunals, courts or bodies." 107 Nor, at least in the VCAT's own mind, did it consider that it was conferring jurisdiction by exercising power under s 77(3). It said (at [73]) that it accepted the respondents' submission that s 77 "does not interfere with or purport to create a jurisdiction in the Federal Court". 108 At [12] of their final written submissions to the Tribunal, the respondents distinguished between a striking-out under s 77(1) and a referral under s 77(3): "Where the Tribunal considers that the subject-matter of a proceeding would be more appropriately dealt with by some other tribunal, court or any other person or body, it may strike out the whole or any part of the proceeding. Furthermore, it may refer the matter to the relevant tribunal, court, person or body if it considers it appropriate to do so." (Emphasis in original.) 109 In effect, the respondents appeared to be treating the question of strike out and referral as though it raised a forum non conveniens question. This approach is not unprecedented. In fact, it is consistent with what was said by Perry J in Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [106]: "First, the power to "strike out" under s 77(1) of the VCAT Act is conditional on the Tribunal reaching a particular view, namely that the subject-matter of the proceeding would be "more appropriately dealt with" by a court or other tribunal. If it so decides, the discretion to refer the matter to a court or other tribunal is then enlivened under subs (3). Importantly, the use of the words "more appropriately" in subs (1) do not suggest that the power to take the necessary preceding step to a referral of striking out the proceeding is enlivened when the Tribunal has no jurisdiction to entertain the subject-matter of the proceeding. Rather it suggests that the Tribunal has, in effect, a choice between fora in the exercise of discretion based upon an evaluative judgment of the factors for and against the proceedings being heard and determined by VCAT, as opposed to the other forum. This construction accords, in my view, with the ordinary meaning of the words used, and is broadly analogous to the discretion applied by a court in conflict of law situations in determining whether or not to decline to exercise jurisdiction on forum non conveniens grounds." 110 The respondents were in error in using the language of "associated jurisdiction" and in referring to s 32 of the FCA Act. The respondents should have said "accrued jurisdiction", and should not have purported to rely on s 32. But, had this substitution in terminology been made, the submissions of the parties would have been essentially ad idem, at least as to the principles that were to be applied. All cases referred to were accrued-jurisdiction cases; the language used ("common substratum"; "single justiciable controversy") was accrued-jurisdiction language. The VCAT was not misled into thinking that those concepts were somehow irrelevant because of the existence of s 32 and associated jurisdiction: it asked itself (between [51] and [52]) whether the claims in the VCAT "arise out of the same subject matter as the Federal Court claim", and it concluded (at [60]) that "all of the claims which [Ms Bashour] makes in both proceedings form part of one controversy between the parties." 111 The respondents' submissions were legally wrong. But I do not accept that they were "fundamentally misconceived." A submission could have been made that the Federal Court probably would have accrued jurisdiction over the subject matter of the VCAT proceeding, that it was the more-suitable forum (or, perhaps, that the VCAT was a plainly unsuitable forum), and therefore that the VCAT ought to exercise its s 77(1) discretion on a kind of forum non conveniens basis. I do not say that such a submission would or should have been accepted - in light of what I think is significant doubt concerning this Court's accrued jurisdiction, perhaps the VCAT ought to have declined to exercise that power in any case (cf Bashour [2016] VSC 527 at [65]). But the submission would not have been legally erroneous, or at least not obviously so. The differences between that submission and the one that the respondents in fact made were: (1) the respondents mistakenly referred to accrued jurisdiction as "associated jurisdiction"; and (2) the respondents mistakenly identified the source of that jurisdiction as being in s 32 of the FCA Act. 112 These were errors. But, I do not accept that to have made submissions containing these errors was to act "unreasonably". There is no basis for concluding that they were made in wilful disregard of the law. The fundamental proposition - that the Federal Court could exercise jurisdiction over the entire justiciable controversy, and that the VCAT should exercise a power under s 77(1) to strike out the proceeding in that forum - could fairly have put without reference to s 32 of the FCA Act and using the correct terminology of accrued jurisdiction. 113 Ms Bashour's criticism of the respondents was not only that they were wrong concerning associated jurisdiction, however; it was also that "each of the avenues of apparent jurisdiction [was] fundamentally misconceived." The best way of understanding this submission is by reference to [63]-[66] of the VCAT's reasons: "[63] The respondents asserted that the transfer could be effected in one of three ways. [64] Firstly the present claim under the Fair Work Act 2009 could be amended to include the attributes relied on by the applicant under the Equal Opportunity Act. [65] Secondly, the jurisdiction of the Federal Court could be invoked by the applicant under its statutory jurisdiction in associated matters. This jurisdiction arises under section 32 of the Federal Court of Australia Act 1976. This would enable the Federal Court to exercise jurisdiction under the Equal Opportunity Act 2010. [66] Thirdly the applicant could make her claim under the Disability Discrimination Act 1992." 114 I think it is now not controversial that it is not open to Ms Bashour to pursue remedies in this Court under the Disability Discrimination Act 1992 (Cth) (see s 13), or under the Sex Discrimination Act 1984 (Cth) (see s 10), and that, although it might be possible for additional claims under the Act to be added, there are at least difficulties, perhaps barriers, raised by ss 725-733 of the Act and by Ms Bashour requiring an extension of time in order to make an antecedent application to the Fair Work Commission for a remedy. 115 Again, however, I think that Ms Bashour's submission misses something of the context of the respondents' submissions to the VCAT. In written submissions prior to hearing, the respondents relied on no source of jurisdiction other than the accrued jurisdiction. In the hearing itself, counsel for the respondents had effectively completed his submissions when the VCAT raised the following series of issues: "MR FORBES: … Sorry, your Honour, just making sure I've dealt with everything. [HER HONOUR]: The one matter that I do want you to go over is the question of whether there are any differences of substance between the anti-discrimination legislation in the Equal Opportunity Act and the anti-discrimination provisions of the Fair Work Act or other legislation. … MR FORBES: Yes. All right. The applicant seeks to engage this case on the basis of disability, parental status, and pregnancy. Now disability clearly would be open for the applicant to bring, under the Federal Disability Discrimination Act and each of parental status and pregnancy … [y]es, certainly section 351 [of the Fair Work Act] prevents an employer from taking adverse action against any person who is an employee because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion etcetera. … [HER HONOUR]: So I just make sure that it's clear what you just said. So what you're saying is that the amendment to the Federal Court proceeding may be as easy as adding parental status, pregnancy and disability to those attributes which are relied upon under section 351 of the Fair Work Act. MR FORBES: Yes. I think - I'm not sure how the applicant would want to frame it but I think she could either make an amendment to the Federal Court proceeding by pleading the Equal Opportunity Act and seeking to invoke the associated jurisdiction … of the Federal Court … or, yes, it may be possible for her to abandon the Equal Opportunity Act and reframe these new allegations as allegations in breach as adverse action or breaches of section 351. But all of that is a matter for her … [HER HONOUR]: Yes, I'm just … trying to work out the logical possibilities here. The other option is perhaps a claim under the Federal Disability Discrimination Act. MR FORBES: Yes, there might be scope for that as well." 116 These submissions were not developed in the respondents' post-hearing written submissions. Instead, the respondents said: "Accordingly, without having to descend into a debate about whether there is federal legislation which is comparable to the EO Act, it is open to the Applicant to prosecute an EO Act claim within the associated jurisdiction of the Federal Court. The Respondents have already indicated that they would not stand in the way of the Applicant doing so." 117 Reliance on an amendment of the pleadings in this jurisdiction so as to replicate under Federal legislation what was alleged in the VCAT under State legislation does not appear to have been part of the primary case advanced by the respondents to the VCAT. The VCAT raised that issue, and the respondents' counsel did his best to answer the VCAT's queries on his feet. The respondents again moved back to their primary position - that this Court would have accrued jurisdiction (although they called it associated jurisdiction) - in post-hearing submissions. 118 If, as appears to have been the case, the respondents had not come prepared to argue that jurisdiction might arise under the Fair Work Act or the Disability Discrimination Act, it might have been better to have submitted only that jurisdiction under those acts was not certain and in any case was not relied upon by the respondents. But, as I read the submissions of the respondents, they were nothing more than a genuine effort to assist the VCAT with its queries. By no means was reliance on those purported sources of jurisdiction the respondents' primary case. Not every wrong or incautious submission is "unreasonable" for the purposes of s 570(2)(b). In my judgment, the respondents' conduct here was not unreasonable. 119 It remains at least arguable that this Court would, in fact, have accrued jurisdiction to deal with the subject matter of Ms Bashour's VCAT claims. The questions confronting Mukhtar AsJ included whether there was an arguable case that the VCAT lacked jurisdiction to make a s 77 order, and the issue before McDonald J was whether he ought to quash the order on the basis of a want of jurisdiction. In neither case was it necessary for a final view to be expressed as to whether the Federal Court had jurisdiction. Nor would any such final view, had one been expressed, have been binding on me. Indeed, both Mukhtar AsJ and McDonald J were, with respect, appropriately cautious in their findings concerning jurisdiction. Mukhtar AsJ said as follows (Bashour [2016] VSC 527 at [30]): "Sixthly, I do not accept Ms Doyle's measured submission that even though there was, as she described it, a 'slip' in the Bank's submissions at VCAT or even though Judge Harbison 'misspoke' when it came to s 32, her Honour's outcome was right as a practical matter. That is, she submitted and sought to show, there was in truth a single justiciable controversy and a common substratum of facts. That means, it was submitted, there was no substantial injustice because it was open for Ms Bashour to take the initiative in the Federal Court and seek to bring her State claim under its accrued jurisdiction. Maybe it was; and maybe it still is; but Ms Bashour maintained at VCAT that it was not a single justiciable controversy. And Tracey J, as matter of impression at least, appeared to see there was a question whether the two cases were one controversy although in the disorder created, it appears to me that his Honour was not really called on to give deeper serious consideration to that question." (Emphasis added). 120 McDonald J said as follows (Bashour [2016] VSC 666 at [20]): "State legislation cannot empower a state tribunal to refer a matter to a federal court. Whether Ms Bashour's claims under the Equal Opportunity Act are matters which enliven the Federal Court's accrued jurisdiction is a question which can only be determined by the Federal Court. Neither the Federal Court's accrued, nor its associated jurisdiction in conjunction with s 77(3) of the Act, confers power upon VCAT to refer a proceeding under the Equal Opportunity Act to the Federal Court of Australia. The second to fifth defendants' reliance upon the existence of a single justiciable controversy as enlivening the Federal Court's accrued jurisdiction is misconceived." (Emphasis added.) 121 What McDonald J may have meant in saying that the respondents' reliance on accrued jurisdiction was misconceived is that the existence, if any, of accrued jurisdiction could not form a basis for the VCAT to refer a proceeding to the Federal Court under s 77(3). In any case, his Honour was not saying that this Court did not have accrued jurisdiction - his Honour had earlier observed that that was not a question necessary to consider. 122 I have not been called upon to rule on whether this Court has jurisdiction to deal with the allegations the subject of the VCAT application. I indicated in directions hearings that I would require persuasion that the accrued jurisdiction of the Court caught the VCAT matters. However, the expression of a view in a directions hearing is far from a statement that the accrued jurisdiction of the Court could not be invoked. In the absence of argument on the question of whether the Court does in fact have accrued jurisdiction, argued on the basis of and by reference to an amended pleading, I do not consider it appropriate to find that the respondents were unreasonable to suggest that the Court's jurisdiction could be enlivened. 123 I have said that reference to the "associated jurisdiction" and s 32 of the FCA Act were erroneous, and it is appropriate to explain why that is. The terms "accrued jurisdiction" and "associated jurisdiction", as Allsop CJ has observed extracurially, "denote different concepts, which it is important not to confuse": see "Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Australian Bar Review 29 at 47. His Honour continued: "'Accrued jurisdiction' is that part of the matter which is not specifically federal. It is probably a term best avoided. The whole matter is federal if it arises under a federal law. It is apt to mislead if one thinks of State or common law jurisdiction clamping on to federal jurisdiction. It is all federal jurisdiction, if it is one controversy. … 'Associated' jurisdiction is dealt with in s 32 of the FCAA. Section 32 is in the following terms: To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought Though related, in a sense, to the question of the extent of the controversy or 'accrued' jurisdiction, s 32 provides for a conferral of jurisdiction in other federal matters not otherwise conferred, but available to be conferred, if there is conferral of some jurisdiction. Thus, if there is conferral by Commonwealth statute X of some federal jurisdiction, and jurisdiction under topic Y could be conferred on the Federal Court (by reference to ss 75 and 76 of the Constitution) but has not been so conferred and it is associated with the matter conferred by statute X, s 32 confers jurisdiction on the court in respect of topic Y for the disposition this controversy. Thus, if there is a federal element in a controversy arising under a law of the parliament (para 39B(1A)(c), from s 76(ii) of the Constitution) and the Commonwealth is being sued, s 32 would confer jurisdiction on the court, by, and in respect of, the fact that the Commonwealth is being sued, since it is a ground in s 75(iii) which could be, but otherwise has not been, conferred on the Federal Court (para 39B(1A)(a) only deals with the Commonwealth seeking certain relief). With the growth of jurisdiction by para 39B(1A)(c) the scope for the operation of s 32 has lessened, but it could be useful in clarifying the existence of express federal jurisdiction, for example if the dispute involves the diversity jurisdiction under s 75(iv) or the Commonwealth is sued making s 75(iii) relevant The word 'associated' is not a synonym for 'accrued'. Section 32 is not referring merely to the operation of accrued jurisdiction. There is a lack of authoritative exposition of the extent of 'associated'. In Philip Morris Inc v Adam P Brown Male Fashions, Barwick CJ indicated that 'associated' embraced matters which may be disparate from each other, that is not within the 'accrued' jurisdiction within the conferred federal matter. Gaudron J in PCS Operations Pty Ltd v Maritime Union of Australia was of the view that Barwick CJ's views were implicit in the other judgments in that case. The High Court, apart from Gaudron J sitting at first instance in PCS v MUA, has not recently discussed 'associated' and s 32. Philip Morris v Adam P Brown Male Fashions remains the main High Court source of discussion on s 32. See also the article by Gummow J which outlines the history behind s 32 and which remains a fertile source of ideas as to the scope and extent of s 32." (Citations omitted; emphasis in original.) 124 Perfect clarity has not always been maintained, in the decided cases, in the distinction between the Court's accrued and associated jurisdictions. However, reference to Philip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457 makes the point clear, perhaps nowhere more than in the judgment of Gibbs J at 494-495: "It follows from what has already been said that this sub-section cannot validly confer on the Federal Court jurisdiction in respect of matters other than those enumerated in ss. 75 and 76. … It of course follows from what I have said that the further submission by the learned Solicitor-General that the sub-section [32(1)] extends to confer on the Federal Court jurisdiction to entertain a claim based on State law cannot be accepted. Such a claim would not give rise to a matter of a kind specified in s. 75 or s. 76. The sub-section confers additional jurisdiction only in matters of the kinds described in those sections of the Constitution, and only if those matters are associated with matters already within the jurisdiction of the Federal Court." 125 Understood in that way, I can see no basis, and none was put to me, for thinking it arguable that s 32 could in fact be a source of jurisdiction. 126 However, for the reasons given above, I do not consider the respondents' conduct, upon which Ms Bashour relied, to have been unreasonable. Accordingly, the exception, provided for in s 570(2)(b) of the Act, is not engaged.

Consideration - the respondents' application 127 As I have set out above, the respondents' principal submission was that, regardless of the reasons for Ms Bashour's decision now to seek to discontinue the proceeding, her decision constituted an unreasonable act or omission that caused the respondents to incur costs. This submission was distilled at [30]-[33] of the respondents' principal submission on costs: "[30] First, [Ms Bashour] chose to pursue a multiplicity of proceedings pertaining to her employment relationship with the [Bank] in the Fair Work Commission, the Federal Court, the Federal Circuit Court and VCAT. Yet now, apparently, [she] intends to consolidate all her remaining grievances concerning that employment relationship in proposed VCAT proceedings. This has exposed the Respondents to wasted and duplicated work. [31] Secondly, as at late March 2015, this Federal Court Proceeding was ready for a trial listed for April 2015. Preparatory work was undertaken for that trial, including a significant body of work undertaken in the window between 1 October 2014 and late March 2015. Eighteen months after that trial would have been heard, had the original trial dates of April 2015 been preserved, [Ms Bashour] now seeks to discontinue this Proceeding. [32] In short, the central question as to whether [Ms Bashour's] discontinuance ought to enliven an award of costs is the reason for which [Ms Bashour] wishes to discontinue her Federal Court Proceeding. If the Court finds that [Ms Bashour] seeks leave to abandon this Proceeding with the intention of re-agitating the issues raised in the Federal Court Proceeding in new proposed proceedings in VCAT, then it is clear that [Ms Bashour] has unreasonably put the Respondents to the cost of defending this Proceeding since it was issued on 21 February 2014. All the steps taken to prepare for trial in this jurisdiction will be required to be repeated at VCAT. [33] Alternatively, if the answer to the inquiry as to [Ms Bashour's] rationale is that this Proceeding is no longer necessary, because the relief sought in this Proceeding was rendered moot by [Ms Bashour's] resignation from her employment on 1 October 2014, then [Ms Bashour] has persisted unreasonably with this Proceeding since that date. If the relief sought became otiose in October 2014, then it has surely retained that character in the two years which have elapsed since that date." 128 This submission was apparently anticipated by Ms Bashour. She dealt with it proleptically in her earlier submissions, in particular at [6.4]-[6.8]. The essence of those paragraphs is that it was not possible to replicate the subject matter of the VCAT proceeding in this Court, that ss 725 and 732 of the Act prevented Ms Bashour agitating the same subject matters in this Court and the VCAT simultaneously, and so it was necessary for her to discontinue this proceeding. It was not, she submitted, unreasonable for her not to have discontinued before 12 September 2016. Until the parties agreed that the VCAT's order ought to be quashed, there was uncertainty as to the legal consequences of the VCAT's order. Therefore, it was, she said, "necessary to wait for the outcome of [her] judicial review proceedings before it was known which forum was competent to deal with the subject matter of both the VCAT Proceedings and the VID107/2014 Proceedings." 129 In Ms Bashour's submissions in reply, paragraphs [29]-[33] are of principal relevance. Ms Bashour submitted that, once she was no longer employed by the Bank, this proceeding was of diminished importance. More important, in Ms Bashour's eyes, was the "total loss of [her] employment … and the damage to her reputation", which she chose to pursue in the VCAT rather than in this Court. The submissions continue: "At this point, in ideal circumstances, both sets of proceedings would have been pursued to their ultimate conclusion. However, by that time, [Ms Bashour] was unemployed with primary care responsibilities for a baby and a toddler. The Respondents were well resourced litigants. [Ms Bashour] was without legal representation. [Ms Bashour] was minded to put what resources she had into her VCAT claim. On 17 March 2015, the Applicant filed an application for leave to discontinue Proceedings VID 107/2014 for reasons including the fact that much of the relief sought was no longer applicable following her employment having come to an end, financial hardship, [Ms Bashour's] and her family's health, and other pressures. At no point has [Ms Bashour] contended that Proceedings VID107/2014 was of no utility, as constantly misrepresented by the Respondents." (Emphasis in original; citations omitted.) 130 In response, the respondents submitted that Ms Bashour had failed to confront what they saw as the central issue: either Ms Bashour intends to pursue the subject matter of this proceeding in VCAT or not. If the former, then the respondents will have to duplicate in the VCAT work already done in this forum; if the latter, then the respondents have had to defend a claim that will never be run. 131 In their primary submissions, the respondents set out at some length, at [37]-[48], extracts from letters, submissions, and affidavits that touched on Ms Bashour's intentions in respect of the subject matter of this proceeding. The respondents' point, that these documents do not speak consistently, is fairly made. It is convenient to set out the relevant extracts: "… it appears that the best way forward is to recreate the entire controversy in VCAT, including by replicating VID107/2014 in VCAT, and for VCAT to deal with the matter in its entirety." (Letter from Ms Bashour's solicitors to the respondents' solicitors dated 25 May 2015.) "HIS HONOUR: You mean reinstate [the VCAT proceeding] doesn't mean just revive the pre-existing VCAT case, it means revive it and boost it with a case that was replicating that which was in the Federal Court. Is that what you're saying? MR HARMER: Yes ... ." (Submissions to Mukhtar AsJ dated 12 November 2015.) "On 6 October 2016, the Applicant confirmed her instructions to progress the VCAT matter … . However, the Applicant instructed that she would not seek to replicate the substance of VID107/2014 in VCAT given the significant hurdles that would need to be overcome … ." (Affidavit of Ms Amy Zhang of Ms Bashour's solicitors dated 6 October 2016.) "[S]ince on or about 31 March 2015 … I have been willing to have the two proceedings proceed in the one forum … . … [A]s the constructive dismissal and victimisation aspects of the VCAT claim touch on the matters the subject of VID107/2014, on interpretation of sections 725 and 734 of the [Act], a withdrawal or discontinuance of VID107/2014 is required to pursue the VCAT claim. Accordingly, there is a need to discontinue VID107/2014 to pursue all controversies in VCAT, per the preference of the Respondents to have all matters in the one forum." (Ms Bashour's affidavit dated 28 October 2016.) 132 With the exception of the 6 October 2016 affidavit, all of these statements give the distinct impression that it was intended, in the VCAT, to make the same allegations and to seek such of the relief sought in this proceeding as remains relevant and as is available. The final word in this sequence appears in [7] and [8] of Ms Bashour's affidavit of 9 December 2016: "[7] … I intend to rely on the issues covered by VID107/2014 to the extent that they inform the issues of constructive dismissal and victimisation, which were claims that already existed under my Application to VCAT dated 20 October 2014 … . [8] However, I do not intend to replicate the substance of VID107/2014 in VCAT, by which I mean that I do not seek to commence new causes of action in VCAT to address the substance of VID107/2014. …" 133 It must be said that that explanation does not sit comfortably with all of the various statements of intention made by or on behalf of Ms Bashour since the issue first arose. The recent reference in the October 2016 affidavit to having "two proceedings" proceed in the VCAT sounds very much like a replication of the subject matter of this proceeding in the VCAT, not just a reliance on certain facts that happen also to have been here in issue. However, as the December affidavit is the most recent, and also the least ambiguous, statement of Ms Bashour's intentions, I am prepared to accept it as factual. 134 I find that Ms Bashour does not intend to seek in VCAT the relief that she sought in this proceeding. Rather, Ms Bashour intends to pursue the causes of action which she identified in her VCAT application, and to do so in part on the basis of facts asserted and relied upon in this proceeding. 135 The respondents' submissions dealing with the consequences of such a finding are essentially twofold: first, that the decision to discontinue should have been made earlier, and that they should have their costs from one of a series of proposed earlier dates; and second, that they have had to incur the costs of defending a proceeding in this Court that will now never run, and that they should have their costs from the commencement of the proceeding. 136 The second submission is unpersuasive. Although the ordinary position is that a discontinuing party is prima facie liable for his or her opponent's costs, that position is displaced by s 570. In other words, a party has no prima facie entitlement to costs on the discontinuance of his or her opponent and it is necessary to show an unreasonable act. It is hard to conceive of discontinuance, without more, as being unreasonable. The necessary consequence of a discontinuance is that the non-discontinuing party will have incurred costs in defending the proceeding that will not run. I am not persuaded that there is any basis for awarding the respondents their costs in relation to the period prior to October 2014. 137 As to the first submission, the respondents summarise their position at [61]-[63]: "[61] As is explained above, the Respondents seek an order that [Ms Bashour] pay their costs since the Proceeding was initiated, or in the alternative since 1 October 2014. In the further alternative, the Court might order that [Ms Bashour] pay the Respondents' costs from 20 October 2014 to date, that being the date on which she commenced proceedings at VCAT. It is from this date that the relief sought in the Federal Court was not only otiose, but effectively duplicated in another forum. [62] In the further alternative, the Court might order that [Ms Bashour] pay the Respondents' costs from 17 March 2015 to date, being the date on which [Ms Bashour] first sought leave to discontinue this Proceeding and thus the date from which [Ms Bashour] was 'keeping alive' a proceeding she had formed a view she did not wish to pursue. [63] In the further alternative, the Court might order that [Ms Bashour] pay the Respondents' costs for the period 1 October 2014 to 17 March 2015, being the period in which the Applicant knowing the relief sought in the Federal Court Proceeding was effectively moot, nevertheless put the Respondents' [sic] to the expense of substantial trial preparation." 138 It appears to me that the easiest way to address those various alternatives is to address the following questions. In light of the circumstances pertaining at the time, was it unreasonable for Ms Bashour not to have discontinued this proceeding: (1) after 20 March 2015; or, (2) at any time between 1 October 2014 and 20 March 2015. 139 As to the period after 20 March 2015, the answer is that it was not unreasonable for Ms Bashour not to have discontinued this proceeding in light of the circumstances then pertaining. Ms Bashour desires to litigate matters relating to her employment with the Bank. From 20 March 2015, it appeared that, if that was to be done, it could not be done in the VCAT. Until Ms Bashour succeeded in overturning the VCAT's order having that effect, it was not unreasonable of her to retain the proceeding in this Court. That is so even if the principal relief sought in this proceeding was unavailable after October 2014. Having been apparently shut out of VCAT, and in a context of various jurisdictional complexities and limitations on or preconditions to pursuing particular issues in various fora, it was reasonable for her to keep the instant proceeding on foot if only for the purpose of seeking to add other claims elsewhere barred, if that became necessary. 140 I accept that Ms Bashour kept the present proceeding on foot pending resolution of the uncertainty whether she could pursue a claim in the VCAT. That uncertainty had arisen because the Bank had erroneously procured a purported transfer of the VCAT proceeding to this Court. In the circumstances, delay in discontinuing after the VCAT's orders was not unreasonable. 141 That leaves the period between 1 October 2014 and 20 March 2015. The respondents submit, in essence, that if (as appears to be the case) Ms Bashour is not minded to pursue in any jurisdiction the relief sought in the application which instituted this proceeding, and if (as appears to be the case) this is in part - probably in large part - the consequence of the primary relief sought being now unavailable, it was not reasonable for Ms Bashour to have allowed the proceeding to remain on foot after that became apparent, in October 2014. 142 I do not accept that submission. It seems not to be in issue that Ms Bashour had at least an arguable legal and factual case in this proceeding. If she had prosecuted the proceeding to judgment, then the respondents would have incurred the costs of preparation for and appearance at trial. Putting to one side the Calderbank offers, to which I will return, it is difficult to imagine that, in the hypothetical circumstance in which the case went to judgment, the respondents would have recovered their costs. Why, then, should the respondents recover those costs if, instead of prosecuting the case to completion, Ms Bashour decides not to do so and saves the respondents the cost of appearing at trial? 143 One answer might be that it would be unreasonable to allow the respondents to incur costs knowing that ultimately Ms Bashour intended to discontinue on the eve of hearing. But there was no evidence that she had that intention at any time between October 2014 and around 17 March 2015. Indeed, the evidence is to the contrary: at [23(b)] of Ms Bashour's October 2016 affidavit, she deposes as follows: "… had the Strike Out Application and Strike Out Order not been pursued and made, I would have been prepared to proceed to final hearing in VID107/2014, with VID107/2014 being run as a damages case. In particular, I would have run VID107/2014 and then run the VCAT proceeding in respect of post-VID107/2014 conduct;" I accept that evidence. 144 Ms Bashour's decision, on 17 March 2015, to seek orders relating to the discontinuance of the proceeding, does not alter the position. There are any number of reasons why a person who was disinclined to withdraw from proceedings in October 2014 might, five months later and in light of changed circumstances, become so inclined. Failure to reach a decision of that kind earlier is not necessarily unreasonable and I have no basis for thinking it so in this case. Nor was the decision, some weeks later, on 31 March 2015, to withdraw the 17 March 2015 application unreasonable, in light of the VCAT's intervening decision. 145 Accordingly - and, again, subject to Calderbank considerations - I reject the respondents' claim that Ms Bashour acted unreasonably in the period after 1 October 2014.

The respondents' Calderbank offers 146 The respondents submitted that rejection of each Calderbank offer was unreasonable. They submitted that each offer contemplated money passing into Ms Bashour's hands. Upon discontinuance she will receive nothing. Alternatively, the respondents submitted that if, by reason of the proceeding in this Court having not progressed to judgment, the Court found it difficult to assess the reasonableness of the two Calderbank offers, the refusal of those offers was evidence of "unreasonable conduct more generally". 147 The costs consequences of a Calderbank offer lie in the discretion of the court. It will be exercised having regard to the particular circumstances of the case: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37] per Giles JA. Relevant principles were identified by Finn and Bennett JJ in Taleb v GM Holden Limited [2011] FCAFC 168 at [48]-[49]: "[48] … [T]he non-acceptance of a Calderbank offer can be a relevant matter to be considered on the question whether the discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) should be exercised on an indemnity basis rather than in accordance with the Court's usual practice of ordering party and party costs, if its non-acceptance is followed by a result to the offeree which is less favourable than the offer made: see MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236; on the primacy of the ordinary practice see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; and see generally on Calderbank offers, Dal Pont, Law of Costs, [13.46]-[13.69] (2nd ed, 2009). [49] The significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) (2008) 249 ALR 360 at 361ff; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 at [34]. The onus is on the offeror to show that the conduct of the offeree was unreasonable: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at [21] and [28]." 148 An initial comparison is thus required of the terms of the offer and the outcome achieved by the offeree, in order to determine whether Calderbank principles are enlivened at all. If they are, a comparison often follows between the amount offered and the outcome in the proceeding in assessing whether rejection of the offer was unreasonable (see, e.g., Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721). 149 These comparisons are at least difficult where the outcome in the proceeding is its discontinuance. I accept that there are some circumstances in which a Calderbank offer might nevertheless be relevant. For example, if discontinuance is the consequence of capitulation by the offeree, it might be possible to say that it was unreasonable of the offeree to reject an earlier offer that would have been more favourable than that following acceptance of the inevitable: see, e.g., Gunns Ltd v Marr (No 4) [2007] VSC 91 at [50] (Bongiorno J); Copping Refuse Disposal Site Joint Authority v Southern Beaches Conservation Society Inc [2016] TASSC 5 at [7]-[8] (Blow CJ). If a respondent wrote to an applicant offering to pay an amount of money and setting out the reasons why the applicant would necessarily lose at trial, and if the applicant did not initially accept those reasons but, having much later taken further advice, came to accept that advice and discontinued, one could see how Calderbank principles could meaningfully be applied (assuming evidence of the foregoing were available to the court). 150 I will assume without deciding that Calderbank principles can be applied even though there has been no determination on the merits. Even with that assumption in the respondents' favour, I do not consider that Ms Bashour's rejections of the offers constituted unreasonable acts for the purposes of s 570(2)(b). 151 When the first offer was made and rejected, Ms Bashour remained an employee of the Bank. The principal relief she sought was predicated on her continued employment with the Bank. Conversely, the offer itself contemplated that her employment would be terminated. The reason why Ms Bashour cannot any longer obtain that relief is not that her claims have been held to be unmeritorious; it is that her employment came to an end. Discontinuance in those circumstances was not an acknowledgement that her claim was flawed, or a capitulation in the sense that Ms Bashour came to apprehend that her claims must fail. In those circumstances, I do not consider that Ms Bashour acted unreasonably in rejecting an offer which would have seen her employment come to an end - almost the antithesis of what she sought in the proceeding. 152 Put in another way, it was a term of the Bank's first offer that Ms Bashour's employment would be terminated. The primary relief that she was then seeking contemplated her continued employment. The primary relief became unavailable for reasons unrelated to the strength or weakness of her claims in this proceeding. Without a determination that Ms Bashour was not entitled to that relief, I do not think it is open to conclude that she was unreasonable in rejecting the first offer. 153 The second offer proposed the settlement of both the VCAT proceeding and the proceeding in this Court. The VCAT proceeding is, of course, still ongoing, and Ms Bashour may yet be successful in pursuing the remedies sought in that proceeding. This proceeding has been discontinued without determination of its merits, and I have held that the act of discontinuance itself was not an unreasonable act. In those circumstances, again, I do not consider it to be open to find that Ms Bashour acted unreasonably in rejecting the second offer. 154 For the same reasons, I reject the alternative submission that the rejection by Ms Bashour of the settlement offers was evidence of "unreasonable conduct more generally". On the contrary, the decisions to reject the settlement offers seem to me to have been reasonable, in the circumstances. They do not afford support for a conclusion that Ms Bashour has engaged in some wider form of unreasonable conduct.

Use of affidavits in VCAT 155 The eighth order sought by Ms Bashour was that: "Leave be granted to use the evidence filed by the parties in VID107/2014 in the VCAT proceeding H245/2014, and/or any related VCAT proceeding involving one or more of the Respondents in H245/2014 and/or VID107/2014." 156 The respondents submitted in reply that they would not oppose an order in this form: "The parties be granted leave to use all affidavits sworn by Katherine Bashour and filed in the Federal Court proceeding VID107/2014 as set out in the annexure to these Orders for the purposes of the VCAT proceeding H245/2014 and any other VCAT proceeding instituted by the Applicant and involving one or more of the Respondents, including for the purpose of tendering such affidavits and/or cross-examination in relation to the same." 157 It is appropriate to record that the respondents' consent was given on the basis that matters of admissibility and weight of any such affidavits are matters for the VCAT. That is an appropriate reservation. 158 The respondents did not, however, consent to the use in the VCAT of affidavits prepared, filed, and served on behalf of the respondents in this proceeding. They said that Ms Bashour had failed to identify what use would be made of them, or any proper basis for the order. 159 The respondents submitted that affidavits filed but not read are the subject of an implied undertaking that they not be used for any collateral purpose, relying upon King v AG Australia Holdings Ltd (2002) 121 FCR 480 and Springfield Nominees Pty Limited v Bridgeland Securities Limited (1992) 38 FCR 217. 160 That proposition may be somewhat overstated. There is authority for the proposition that the implied undertaking applies only to affidavits the filing of which was compelled by a rule of court or a court order: Rowe v Silverstein [2009] VSC 157 at [25] (Forrest J); Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 at [148] (Hasluck J). Those are the terms in which the implied undertaking was discussed in Hearne v Street (2008) 235 CLR 125 at [96]: "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise [Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at 916 [19]; affd [1999] 3 All ER 154 at 169-170], to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. (Emphasis added). 161 The rationale for the undertaking was explained by Hayne, Heydon and Crennan JJ in Hearne at [105]-[108]. Their Honours, at [107], quoted with approval, from the speech of Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896: "Compulsion [to disclose on discovery] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice." 162 No doubt some, perhaps many, of the affidavits filed by the respondents in this proceeding were "compelled" by court order or direction, but probably not all. Affidavits in support of interlocutory applications, in particular, may have been filed at the respondents' initiative and discretion rather than as a consequence of any compulsion. 163 King, following Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, does, however, suggest that the implied undertaking might operate more broadly. Moore J there said (at [75]): "…I see no material difference in principle between a requirement in the rules of a court to create, file and serve a document and a court order applying a practice direction requiring witness statements to be served: see also Akins v Abigroup Ltd (1998) 43 NSWLR 539 especially at 550-552. They both compel a party to create and serve a document or documents if the party wishes to conduct proceedings in a particular way. In one instance it is to secure an order, in the other it is to call a witness. Both acts are voluntary in the sense that the failure to perform them would not result in a sanction or penalty (unlike discovery and interrogatories) other than, potentially, the inability to seek an order or to call the witness. However each is a step viewed by a party as a necessary one and taken to prosecute litigation in accordance with rules determined by a Court which require specified steps to be taken. A conclusion that leave is necessary to use the notice of motion and the affidavit may be viewed as widening the class of document to which an implied undertaking attaches, where the undertaking was developed to afford protection to discovered documents. In the context of discovered documents the form of the compulsion was clear. However the class has already been extended to witness statements and affidavits where the nature of the compulsion is different. Perhaps ultimately the broader approach of McPherson J provides the appropriate touchstone limiting, without the leave of the Court, the use of documents furnished in legal proceedings for purposes outside those proceedings." 164 In her submissions in reply, Ms Bashour did not submit that I should not follow the approach set out in the cases to which the respondents referred, including King. Accordingly, I will proceed on the basis that this Court's leave is required in order for Ms Bashour to use in the VCAT affidavits filed by the respondents in this proceeding. In doing so I note that the question is not free from doubt in respect of affidavits which were not filed under compulsion. 165 What Ms Bashour did say in her reply was only that the respondents' refusal to consent to the use of their affidavits in the VCAT made the respondents' complaints at [7(a)], [30], [32], and [52] of the respondents' principal submission appear less than genuine. Those paragraphs complained that, if Ms Bashour discontinued this proceeding and sought to raise the same issues in the VCAT, the work that the respondents have done for the purposes of this proceeding would be duplicated. 166 That does not constitute the identification of a "proper basis" for the grant of leave to use the respondents' affidavits in the VCAT. On one reading, Ms Bashour might be taken to have submitted that her ability to use those affidavits will diminish the costs that she would otherwise incur in the VCAT. I am not presently persuaded that that is the case. 167 As I have set out above, Ms Bashour's intention is not to seek in the VCAT the same relief as she sought in this Court, although she does intend to rely on some of the same facts as she alleged in this proceeding. Since the parameters of the VCAT dispute will doubtless be different from those of the present dispute, it seems likely that much, or at least some, of the material that would have been relevant in this proceeding will be irrelevant in the VCAT proceeding. The identification of what is potentially relevant and what is not, and any argument about any related dispute, may be costly. It would not promote efficiency to give Ms Bashour carte blanche in respect of the use of the respondents' affidavits. 168 I would expect that, if there are certain documents annexed to, or statements in, affidavits that are identified by Ms Bashour as being relevant to her VCAT claim, she would approach the respondents with a view to procuring their consent to their tender in the VCAT. A more narrowly confined approach of that kind strikes me as being more likely to promote efficiency. If, for no good reason, the respondents refuse to consent, Ms Bashour may ultimately seek her costs of proving the relevant facts, a course which would be open to her under s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). 169 Ms Bashour's reflection on the genuineness of the respondents' concerns regarding the duplication of costs is not to the point. Whether the respondents are put to the cost of filing the same evidence in two proceedings, and whether Ms Bashour should be able to tender in her own case evidence that the respondents would have relied upon in this proceeding, are different issues. It is worth noting, however, that I doubt that the extent of duplicated cost will be as great as the respondents appear to fear. In respect of matters in issue in this proceeding that come to be in issue in the VCAT proceeding, no doubt there will be some duplication of effort, but, to a large degree, work already done in this Court will be useful. It is not necessary to dwell further on these points.

Conclusion 170 In my opinion, none of the conduct relied upon by Ms Bashour in her application enlivens s 570(2) of the Act. Similarly, none of the conduct relied upon by the respondents in their application attracts the operation of that subsection. Neither does Ms Bashour's rejection of the Calderbank offers made by the respondents, whether standing alone or in combination with the other conduct upon which the respondents rely. 171 That being the case, the proscription in s 570(1) prevents this Court from awarding costs. Ms Bashour will be given leave to discontinue the proceeding on the basis that there be no order as to costs. 172 I will make an order consistently with that proposed by the respondents to enable the use of some affidavits filed in this proceeding to be used in the VCAT proceeding. The proposed order refers to an annexure, and the respondents proposed that the annexure should list those affidavits identified in a form of order provided by the respondent dated 11 November 2016. Ms Bashour did not contest the accuracy of that list. However, some of the filing dates were wrong and have been amended. I will add to the list Ms Bashour's 9 December 2016 affidavit. I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.