Hutchinson v Comcare

1. There be no further order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 By the operation of my self-executing order dated 26 October 2016, the Second Further Originating Application of the applicant ("Ms Hutchinson") was dismissed on 6 February 2017. By an interlocutory application dated 29 January 2017, Ms Hutchinson applied to set aside that self-executing order before it came into effect. On 6 February 2017 I dismissed Ms Hutchinson's interlocutory application. My reasons for dismissing the interlocutory application, including the relevant background to the proceeding as a whole, are set out in Hutchinson v Comcare [2017] FCA 136. 2 The respondent ("Comcare") now seeks its costs of the proceeding. 3 In broad terms, I dismissed the Ms Hutchinson's application because she had proved incapable of pleading a reasonable cause of action, despite having been provided with leave to make five attempts at drafting a statement of claim. Ms Hutchinson had prepared each of those pleadings unassisted by any lawyer. My orders of 26 October 2016 gave Ms Hutchinson conditional leave to file and serve a proposed Fourth Further Amended Statement of Claim if that document had been prepared and certified by a lawyer. When she was unable to secure representation and thereby exercise that leave, the self-executing order dismissing the application took effect. 4 The Court's general power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is qualified in relation to proceedings brought under the Fair Work Act 2009 (Cth) ("FW Act") by s 570 of that Act. Section 570 provides as follows: 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 5 Comcare contended that Ms Hutchinson's "conduct with respect to the pleading of her claim" amounted to unreasonable acts or omissions for the purposes of s 570(2)(b) of the FW Act, enlivening my discretion to award costs. Specifically, Comcare pointed to Ms Hutchinson's defective pleadings and asserted that they were discursive, rambling and oppressive, failed to inform Comcare of the case it had to meet, and that Ms Hutchinson maintained "this approach" despite being put on notice of their defects by Comcare and the Court. Comcare also pointed to Ms Hutchinson's late abandonment of parts of her claim and late concessions in respect of deficiencies in her pleading at the hearing of Comcare's strike-out application on 28 September 2016 and 26 October 2016, despite having opposed that application. 6 At the hearing of Comcare's strike-out application on 26 October 2016, I awarded Comcare its costs thrown away by reason of the filing of the Third Further Amended Statement of Claim. I gave ex tempore reasons for determining that my discretion to do so under s 570(2) had been enlivened by Ms Hutchinson's unreasonable acts or omissions. I there said that there does come a point at which errors compounded upon other errors in circumstances where both notice of the errors or deficiencies and the potential for costs consequences, should they be repeated, mandate that the continuance of error is unreasonable.