Hutchinson v Comcare

1. The applicant pay the respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 By order dated 25 July 2019 I dismissed the applicant's ("Ms Hutchinson") application for compensation under s 14 the Public Interest Disclosure Act 2013 (Cth) ("PID Act"). My reasons for dismissing Ms Hutchinson's application, including the relevant background to the proceeding, are set out in Hutchinson v Comcare (No 4) [2019] FCA 1133 ("reasons for judgment"). These reasons deal with the question of whether Ms Hutchinson should pay the respondent's ("Comcare") legal costs. 2 The Court's general power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") is qualified in relation to proceedings brought under the PID Act by s 18 of that Act. Section 18 provides as follows: (1) In proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant for an order under that section must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (2). (2) The applicant may be ordered to pay the costs only if: (a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the applicant's unreasonable act or omission caused the other party to incur the costs. 3 Section 18 of the PID Act is in relevantly identical terms to s 570 of the Fair Work Act 2009 (Cth). There is no reason why the principles applicable to s 570 should not be applied to s 18 of the PID Act, particularly as there is no authority on the operation of s 18: Clement v Australian Bureau of Statistics [2016] FCA 948 at [54] (Katzmann J). 4 The discretion to award costs under s 18 of the PID Act in an otherwise no-costs jurisdiction is one that must be exercised with caution and the case for its exercise should be clearly demonstrated: Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ) citing Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J) and Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J); see also Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [29] (Tamberlin, Gyles and Gilmour JJ). 5 Ms Hutchinson made the following arguments in her application that no order as to costs be made. None of those contentions were helpful or directed at the criteria in s 18 of the PID Act: that the costs of the proceeding would likely be very substantial and that Ms Hutchinson has limited means as she is living off a disability support pension following the cessation of her Comcare compensation claim; that it was likely she was never going to be able to satisfy s 13(c) of the PID Act due to the onus of proof residing with her; that the onus of proof on the applicant allows government departments to exploit and use the deficiencies in the PID Act to ensure they are never held to account; that Ms Hutchinson has genuinely attempted to bring matters to Court without any vexatious intent; that Ms Hutchinson is a self-represented litigant; and that Ms Hutchinson will not vex Comcare again with a proceeding that lacks real or apparent merit. 6 Comcare filed a detailed submission in response directed at s 18 of the PID Act. Ms Hutchinson declined to file a submission in reply. 7 Comcare's submission contended that the bar on a costs order provided by s 18(1) of the PID Act was inapplicable because of one or more of the following exceptions provided by s 18(2): (a) The proceeding was brought vexatiously; (b) The proceeding was instituted without reasonable cause; or (c) Ms Hutchinson's unreasonable act of instituting the proceeding caused Comcare to incur costs. 8 It is only necessary that I deal with whether the proceeding was instituted without reasonable cause. For the following reasons, I consider that it was. Accordingly, an exception required by s 18(2) to allow an order for costs to be made is established.