Cutler v The Trustee for McKenzie & Baird Unit Trust

REASONS FOR JUDGMENT 1 Mr Philip Cutler commenced a proceeding in this Court on 14 August 2009 in which he made claims against the Respondent arising out of the termination of his employment by his employer. 2 It has since been agreed by the parties that his employer was, in fact, Donrick Pty Ltd ACN 005 627 092. The docket judge has yet to order that the name of the Respondent in the proceeding be varied pending the filing by Mr Cutler of an amended application and statement of claim. 3 A draft amended statement of claim was filed on 22 February 2010. The proceeding was listed for mention on 25 February 2010 at 9:00 am before the docket judge. The matter was called on and Mr Cutler did not appear. Because he did not appear on time the docket judge ordered that the mention and the then current timetable be vacated and that the matter be listed for a further directions hearing on 26 March 2010. On 23 March 2010 the Respondent filed an application for costs thrown away as a result of Mr Cutler's failure to appear on time on 25 February 2010. 4 The Respondent's application for costs was argued (among other matters) before her Honour on 26 March 2010. In the course of argument her Honour explained to Mr Cutler (who was unrepresented) the provisions of s 666 of the Workplace Relations Act 1996 (Cth) and the approach taken by the Court to the application of that provision. In particular she told Mr Cutler: "you need to provide some explanation as to why you were late before I would even entertain … a submission from your side that I shouldn't regard [your late arrival] as unreasonable." 5 Mr Cutler responded by filing an unsworn affidavit on 7 April 2010. In that affidavit he acknowledged that he had been late in arriving at the Court. He said that he had advised a Court officer by telephone at about 9:00 am that he would be about 10 minutes late. Despite her Honour's advice to him that he should explain his reasons for arriving late Mr Cutler did no more, in his affidavit, than to state that it was his intention to travel to the city by train on 25 February 2010 but that, due to unforeseen circumstances, he was forced to travel by private car. After he arrived at the Court he entered the courtroom and advised a Court officer that he was present. He was told to take a seat and wait for his case to be called. He sat in the body of the Court. Her Honour entered and another case was called. Mr Cutler sat through the early stages of this hearing and then left the courtroom and wandered around the building. While he was walking around he was approached by another Court officer who advised him that his matter would be called at 10:10 am. At about that time he entered the courtroom. Shortly afterwards counsel and the instructing solicitor for the Respondent entered the room. Her Honour interrupted the matter she was hearing and advised that that hearing could go for another 30 minutes or more. She asked if Mr Cutler had arrived. Counsel told her Honour that Mr Cutler was seated in the room. Mr Cutler's unsworn affidavit continued: "after some discussion in the room the Respondent's legal team indicated that they had another matter and could not wait. Mr Eichenbaum (the solicitor) and Ms Simone Bingham (counsel) subsequently left the area." 6 Mr Eichenbaum swore an affidavit in support of the Respondent's application for costs. He deposed that: "On 25 February 2010, I attended the Federal Court with Counsel Ms Simone Bingham. The matter had been listed for 9.00am[;] however there was no appearance by the Applicant by 9:15am. At 9:15am [court staff] told us that her Honour Justice Kenny would commence the matter at 9:30am. We left the court room and returned just before 9:30am and were met by a member of Her Honour's staff to say that Her Honour had started her next matter and would hear us at 10:10am[;] however she hadn't yet seen any sign of the Applicant. Ms Bingham and I entered the court room at just before 10.10am to find the other matter still running. Her Honour interrupted the other matter to ask us whether we were able to wait at least another 30 minutes but gave us the option not to. Neither counsel nor I were in a position to [wait further]." 7 This account accorded with her Honour's recollection of what had occurred on 25 February 2010. 8 Having considered this evidence her Honour delivered reasons for judgment on 8 July 2010 in which she concluded: "[42] I do not accept the applicant's position. Mr Eichenbaum's obligation to the Court and to the applicant was to appear in court at the time appointed for the mention, not to ignore all other business for the entirety of the morning to accommodate the applicant. Mr Eichenbaum complied with this obligation. Moreover, under s 666, the focus must be on the reasonableness of the applicant's actions, not his perceptions of the actions of others. [43] The applicant failed to appear on time for the mention, and made no effort to inform the Court of his inability to arrive on time. I informed the applicant at the hearing that he needed to provide an explanation for his lateness, but he has not provided one (other than vague references to train delays and traffic conditions in the unsworn affidavit). The unreasonableness of the applicant's behaviour is underscored by his apparent refusal to recognize any responsibility on his part. Although the applicant admits that he failed to arrive on time for the mention, he apparently views Mr Eichenbaum as to blame due to his inability to delay other business on the applicant's account. Having regard to all the circumstances, I conclude that the applicant acted unreasonably and that the respondent incurred costs as a result. Accordingly, the respondent is entitled to an order for costs. [44] Mr Eichenbaum states in his affidavit that the respondent incurred $1,951.00 in costs related to the mention scheduled for 25 February. These costs are detailed in a letter to the applicant exhibited to Mr Eichenbaum's affidavit. In all the circumstances, I conclude that an appropriate award of costs is $1,200.00 in respect of the costs thrown away on that date." See Cutler v The Trustee for McKenzie & Baird Unit Trust [2010] FCA 714 at [42]-[44]. 9 By notice of motion dated 16 August 2010 Mr Cutler has applied to the Court for orders that he be given leave to appeal out of time against that part of the docket judge's decision which ordered him to pay the amount of $1,200 to the Respondent in respect of its costs thrown away on 25 February 2010, that this order "be expunged" and that the Respondent's costs claim "be denied in its entirety." 10 Mr Cutler affirmed an affidavit in support of his applications. The affidavit contains a restatement of much of the material which appeared in his affidavit of 7 April 2010. He sums up his argument in one paragraph: "Being 10 minutes late to the courtroom is not an exceptional circumstance; in fact it is a common occurrence and cannot be considered an unreasonable act. My only questionable act on the 25 February was being slightly late in my arrival at court. The court was notified of my perceived 10 minute lateness and the matter was to be called at 9.30am. At that time I had been in the court for at least 15 minutes but the matter was not called. No act or omission by me caused the matter to be abandoned on that day." 11 Mr Cutler's reference to a "perceived 10 minute lateness" evidences a continuing failure on his part to recognise that he was in fact late for the hearing on 25 February 2010. As was the case in his earlier affidavit, he makes no attempt to explain in detail why it was that he did not attend on time. 12 Mr Cutler was not prepared to accept her Honour's order that he pay the Respondent $1,200 in costs. On 11 July 2010 he instituted an exchange of e-mails with her Honour's Associate in which he sought what he described as "a break down of costs" which explained what items making up the $1,951 claimed by the Respondent had been allowed and which had not. This correspondence continued until 4 August 2010 when her Honour's Associate advised Mr Cutler that he (Mr Cutler) should not expect any further response to his request. The correspondence between Mr Cutler and her Honour's chambers was not exhibited to Mr Cutler's affidavit. 13 Mr Cutler filed his present applications on 17 August 2010. He explains the delay in making the applications as follows: "I am struggling to maintain good health and have found it difficult to attend to this matter in the timeframe I would have liked. I have made diligent effort (as best I could) to file and serve these documents and apologizes (sic) for their lateness. I am seeking legal representation in this matter and believe I will cease to be a self-represented party in the near future. As this matter is not at trial stage I believe that my request for extension of time to allow appeal documents to be filed and served will not cause a disadvantage to any party." 14 The docket judge's judgment was interlocutory in nature. Order 52 r 10 of the Federal Court Rules provides that an application for leave to appeal from such a judgment must be made within seven days after the date on which the interlocutory judgment was pronounced or within such further time as a judge may allow: seeOrder 52 r 10(2A)(b). 15 Mr Cutler's application for an order that he "be given leave to appeal out of time", therefore, constitutes an application to the Court for two separate orders to be made: an order extending time within which to file his notice of motion; and an order granting leave to appeal from the docket judge's interlocutory judgment. 16 Similar considerations inform the approach taken by the Court to the making of both such orders. This commonality was recognised by Lindgren J in Sharman License Holdings Limited v Universal Music Australia Pty Ltd [2005] FCA 802 at [22] where his Honour, speaking of the predecessor of Order 52 r 10(2A), said: "In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied: 1. There must be a satisfactory explanation for the delay beyond the seven-day time limit …; 2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the 'arguable error' question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. …" 17 Mr Cutler's motion seeking an order for leave to appeal should have been filed by 15 July 2010. It was filed over a calendar month late. Mr Cutler seeks to explain this delay by reference to his request for further information as to the basis upon which her Honour fixed on $1,200 as the amount he should pay to the Respondent for costs thrown away and by reference to possible health problems. No medical evidence has been provided to support any implied claim that Mr Cutler's health prevented him from making a timely application. 18 As an unrepresented litigant Mr Cutler may not have understood that it was inappropriate to interrogate a judge as to the reasons he or she had fixed on a particular amount when making a costs order. His desire to obtain this information provides a partial explanation for the delay. I am prepared to assume, in Mr Cutler's favour, that it constitutes a satisfactory explanation. 19 The question remains as to whether any extension of time would be futile because he had failed to make good a case that leave to appeal should be granted. 20 Mr Cutler did not attend to prosecute his application this afternoon. He has not provided any draft grounds which he would wish to advance on an appeal from her Honour's order. 21 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretionary jurisdiction on the Court to award costs. That jurisdiction was, at relevant times, qualified by the provisions of s 666 of the Workplace Relations Act 1996 (Cth) which had application in the present circumstances: see s 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) and s 43(2) of the Federal Court of Australia Act 1976 (Cth). 22 The former provision relevantly qualified the Court's power to make a costs order in the present proceeding. It read: "666(1) Subject to this section, a party to a proceeding under s 663 [which provides Federal Court jurisdiction over actions for unlawful termination under s 657] must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party: (a) … (b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding." 23 As already noted, her Honour determined that Mr Cutler acted unreasonably in failing, without reasonable justification, to appear at the time appointed for the hearing on 25 February 2010. Her Honour relied on (having earlier drawn Mr Cutler's attention to) the following observations of the Full Court in Bahonko v Sterjov (2008) 166 FCR 415 at 417 [6] that: "Normally, the Court attempts to ensure that [lack of representation] does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal." 24 These observations were made having regard to an earlier (but substantially identical) version of s 666. 25 Insofar as I can glean from Mr Cutler's affidavits he would seek to take issue, on any appeal, with her Honour's decision on the basis that, notwithstanding his late arrival, he was prepared to remain in Court until her Honour had disposed of the other matters in her list but that the Respondents elected to withdraw when given that opportunity at about 10:10 am. 26 Such a contention focuses on the possible availability of remedial measures to overcome Mr Cutler's admitted failure to attend Court at the appointed time. Her Honour, having regard to all of the circumstances, including Mr Cutler's failure to explain (save in the most general terms) his reason for not attending Court on time, considered this failure to be an unreasonable omission bringing the case within the exception provided for in s 666(1)(b) of the Workplace Relations Act 1996 (Cth). Mr Cutler has not suggested any basis for a conclusion that such a finding was not open, on the material, before her Honour. 27 Once the exception was engaged, the discretionary jurisdiction to grant costs was available. Mr Cutler has not advanced any argument which would support the view that her Honour's exercise of the discretion had miscarried: see House v R (1936) 55 CLR 499 at 504-5. 28 I am, therefore, not persuaded that her Honour's judgment is attended with sufficient doubt to warrant it being reconsidered by an appellate Court. As a result, any application for leave to appeal would fail. That being so it would be futile to grant the application, made by Mr Cutler, to enlarge time within which to apply for leave to appeal. 29 The orders sought in paragraph 1 of Mr Cutler's notice of motion, should, therefore, be refused. 30 The orders sought in paragraphs 2 and 3 (albeit with necessary refinements) are orders which could only be made in the event that leave to appeal was granted and the appeal was successful. These orders should also be refused. 31 Counsel appearing for the Respondent has sought an order in the Respondent's favour for costs of the motions presently before the Court. The discretion conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) has recently and specifically been qualified by a reference to s 570 of the Fair Work Act 2009 (Cth). Section 570 (1) provides that a party to a proceeding including an appeal in this and other Courts exercising jurisdiction under the Fair Work Act 2009 (Cth) may only be ordered to pay costs incurred by the other party in accordance s 570(2). Subsection s 570(2) relevantly provides: "The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs…" 32 It will be noticed that these provisions are in substantially similar terms to those of ss 666 and 824 of the Workplace Relations Act 1996 (Cth). It is not immediately clear to me which of these three provisions has application in the present proceeding having regard to the transitional provisions which speak of events before the commencement of the Fair Work Act 2009 (Cth), and bearing in mind that this particular notice of motion was filed in this proceeding as recently as 16 August 2010. It is sufficient to say that, whichever of these provisions is applicable, I am satisfied that this notice of motion was filed without reasonable cause and that Mr Cutler's failure to appear to prosecute his applications this afternoon, without any advice to the court to explain his inability or unwillingness to do so constitutes, in my view, an unreasonable omission which has caused the Respondent to incur costs. 33 Accordingly, there should be a costs order in favour of the Respondent. The order of the court will be: (1) The motions, notice of which was given on 16 August 2010, each be dismissed. (2) The Applicant pay the Respondent's costs of the motions. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.