Hutchinson v Comcare

Consideration 7 I generally agree with the observations of Mortimer J in Ryan v Primesafe [2015] FCA 8 at [64], as endorsed by the Full Court (Siopis, Collier and Katzmann J) in Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8], that the purpose of s 570 of the FW Act is to ensure that fear of a costs order does not discourage genuine litigants from pursuing cases with reasonable cause. The provision is concerned with access to justice. 8 With this in mind, the occasions upon which costs will be awarded under s 570 are likely to be exceptional: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275 at [60] (Black CJ, North and Mansfield JJ). The fact that a party has conducted litigation inefficiently, made late concessions, or adopted a misguided approach will be relevant to, but not conclusive of, the party having acted unreasonably in a sense relevant to s 570(2)(b): Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574 at [29] (Tamberlin, Gyles and Gilmour JJ). 9 Besides the filing of the Third Further Amended Statement of claim, to which I will shortly return, I am not persuaded that Ms Hutchinson's conduct in the proceeding, pointed to by Comcare in its submission, amounted to unreasonable acts or omissions for the purposes of s 570(2)(b). 10 Comcare referred me to the case of Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] (Hodgson CJ). However, I do not consider that case to be of any assistance to Comcare in circumstances where the Court's discretion to make a costs order is constrained by s 570. As the passage cited by Comcare contemplates, a court does have to make allowances for the position of unrepresented litigants. The actions of unrepresented litigants will be viewed more sympathetically by courts in relation to costs than the actions of represented parties. In Bhagat that proposition manifested as an order for the unrepresented litigant to pay party-party costs in circumstances where a represented party would likely have been liable for indemnity costs. 11 The rationale for that approach is bolstered in relation to proceedings brought under the FW Act by the purpose of s 570 as outlined above. It is important to ensure that the disincentive of potential costs orders do not impact more severely upon persons unable to obtain legal representation. 12 Manifest deficiencies in the pleadings of unrepresented parties are not exceptional. While they may justify the making of a costs order in another jurisdiction, they do not necessarily justify the making of an order under s 570(2)(b). The clear deficiencies in the various iterations of Ms Hutchinson's statement of claim, sufficient to warrant them being struck out, were attributable to Ms Hutchinson's lack of capacity and training to prepare a proper pleading. 13 As I have said, I awarded Comcare its costs in relation to the filing of Ms Hutchinson's Third Further Statement of Claim. By the time of the filing of that document, Ms Hutchinson had had four prior opportunities to prepare a satisfactory pleading. Each had invited criticism from Comcare. Although I consider that unreasonableness cannot be founded upon incapacity alone, there comes a point where an unrepresented litigant will take an unreasonable step by continuing to press his or her case after the point at which they should have realised their own incapacity. The unreasonableness is founded not in the incapacity alone but in the failure to recognise the incapacity when there has been sufficient notice of it. 14 That point in Ms Hutchinson's case was reached at the time of the filing of the Third Further Statement of Claim. I do not consider any of her conduct before that time, as it related to the preparation and filing of her deficient pleadings, enlivened my discretion to award costs. As I have indicated, the fact that Ms Hutchinson was unrepresented is a matter of some significance, and her inability to prepare a pleading could not alone found an unreasonable step or omission for the purposes of s 570(2)(b). Comcare has also asked for its costs arising from the conduct of Ms Hutchinson in relation to certain interlocutory steps taken before the filing of the Third Further Statement of Claim, but it has made no submission to explain how that conduct was unreasonable. 15 Since the filing of the Third Further Statement of Claim, Ms Hutchinson has not filed any further pleading. She has, in accordance with my orders of 26 October 2016, sought to obtain legal representation to assist her to prepare a further pleading, and, when it appeared as though she may have succeeded in so doing, sought an extension of time to comply with those orders. Insofar as Comcare has incurred any costs through that process (it has not identified any costs it has incurred), I do not consider them to have been incurred as a result of any unreasonable act or omission of Ms Hutchinson. 16 A different outcome may have resulted if I had been satisfied that the steps taken by Ms Hutchinson were motivated by ill-will or malice or were vexatious. Comcare did not seek to make that case. Similarly, I might have been more attracted to the proposition that Ms Hutchinson's meritless interlocutory application of 29 January 2017 was an unreasonable step, however no specific submission in relation to that interlocutory application was put by Comcare beside the bare claim for its costs of defending it. 17 For those reasons, I have determined that there be no further order as to costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.