Kelly v Corporation of the Synod of the Diocese of Brisbane

1. The respondent's application for costs be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 15 May 2023, for reasons for I delivered ex tempore that day, I dismissed this proceeding: Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 (principal judgment). In so doing, I refused to grant the applicants an extension of time within which to institute a proceeding under s 370 of the Fair Work Act 2009 (Cth) (FWA). 2 A sequel to the order of dismissal was that the respondent sought an order for costs against the applicants. That application became the subject of interlocutory directions for the filing and exchange of written submissions, with the costs application then to be determined on the papers. 3 These reasons for judgment must be read in conjunction with the principal judgment. 4 For reasons given in the principal judgment, I concluded that, because the applicants had not complied with each of the specified conditions in s 370 of the FWA, they had not invoked the jurisdiction of the Court to hear an application under that provision and related causes of action in the same matter. 5 The inspiration for the respondent's seeking an order for costs arises from its understanding that, in light of the conclusion that the Court's substantive jurisdiction under s 370 of the FWA had not been invoked, the stricture found in s 570 of the FWA on the Court's general discretionary power under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) was inapplicable. That being so, so the respondent's submission went, costs should follow the event of the dismissal of the proceeding in the usual way. 6 When the applicants applied for an extension of time pursuant to s 370(a)(ii) of the FWA within which to bring an application under that section, they did not just invoke federal jurisdiction (because the source of the power to grant the extension was a power conferred by a federal Act). They also instituted "proceedings" "in relation to a matter arising under [the FWA]" for the purposes of s 570(1) of the FWA. Further, if successful, the extension of time could (and was sought to) operate nunc pro tunc from the time of institution of the substantive proceeding, thus regularising it. 7 Materially, s 570(1) of the FWA provides: 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) … . 8 In turn and also materially, s 370 provides: Taking a dismissal dispute to court A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute; (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; … [Emphasis added] 9 An application for an extension of time within which to institute a proceeding under s 370 is itself "proceedings" "in relation to a matter arising under [the FWA]". The position is different where the source of the relevant right is not the FWA. For example, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 248 CLR 549 the source of the relevant right was not a matter arising under the FWA but rather a right of appeal under s 73 of the Constitution, consequent upon a grant of special leave under the Judiciary Act 1903 (Cth). In that circumstance, s 570(1) of the FWA was inapplicable and did not operate as a constraint on the general power of the High Court to make an order for costs. 10 Within s 570(1) of the FWA, "proceedings" and "matter" are not to be assimilated: Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221, at [156]. "Matter" in s 570(1) is a broader term encompassing a justiciable controversy with respect to one or more claims under the FWA. The phrase "in relation to" in s 570(1) of the FWA requires that there be a relevant relationship between the "proceedings" and a "matter arising under [the FWA]". Here, and obviously, there was such a relevant relationship between the seeking of an extension of time under s 370 and the satisfaction of the requirements imposed by that section for the institution of a substantive proceeding under s 370. 11 True it is that, in the absence of such an extension of time, the applicant could not, in the circumstances outlined in the principal judgment, invoke the jurisdiction of the court to hear and determine a substantive application under s 370, and thus any claim otherwise arising from the overall controversy under the so-called "accrued jurisdiction". But that does not mean that an extension of time application under s 370 is not "proceedings" in relation to a claim under the FWA. 12 What follows from the foregoing is that the respondent's submission that s 570 is inapplicable is misconceived, at least in relation to the extension of time application. 13 Given that s 570 is applicable to the extension of time application, the question then becomes whether one or more of the circumstances specified in s 570(2) of the FWA is applicable to that application? That subsection provides: (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. 14 There is no question of s 570(2)(c) of the FWA having any application. To the contrary, the applicants participated in earlier, related proceedings before the industrial commission. 15 The extension of time application was not in my view, instituted either vexatiously or without reasonable cause. It was a necessary step for the applicants to take. They took it. They supported it as best they could by an explanation for their delay, which included the disclosing of the legal advice, erroneous as it was, they had received. It is just that, for the reasons stated in the principal judgment, I was not persuaded that there was a case for an extension. There was no unreasonable act or omission in relation to the extension of time application. The jurisdictional competency of the substantive proceeding, together with the adequacy of the pleadings, were just put on hold by the parties, pending an endeavour, unsuccessful as it proved, to resolve the substantive proceeding informally, including by mediation. When that failed, the requisite extension of time application was made, heard and determined promptly. In my view, and for the reasons just given, neither s 570(2)(a) nor s 570(2)(b) of the FWA is applicable in relation to the extension of time application. What follows from this is that, in relation to the application of an extension of time, I conclude that s 570 is applicable and that none of the conditions specified in s 570(2) of the FWA is applicable. There is no occasion for the making of a costs order against the applicants in relation to the extension of time application. 16 As the principal judgment evidences, the fate of the substantive proceeding was determined by the fate of the extension of time application. The substantive proceeding was not preceded by an extension of time application. But that irregularity was detected and sought to be corrected by the extension of time application which came to be heard and determined. 17 For the reasons given in the principal judgment, such an extension was necessary in order to invoke the jurisdiction conferred by s 370 of the FWA to hear the substantive proceeding and thus also "accrued jurisdiction" claims. 18 To hear and determine any extension of time application, it was always necessary for the nature of the proposed substantive proceeding to be identified with precision by a draft statement of claim. That is quite apart from the need for an explanation for the delay in the filing of the substantive application within the time prescribed by s 370 of the FWA. The case is also one in which it was always inherently likely that mediation would have been ordered even if an extension of time had been sought in the first instance. Insofar as there were costs incurred with respect to the substantive proceeding prior to the making, hearing and determining of the application for an extension of time, it is inherently likely, as a matter of impression, that such costs would have been incurred in any event, even had the extension of time been filed from the very outset. I also take into account the disposition of the respondent to, as mentioned, put on hold (but not abandon) questions concerning any irregularity in the substantive proceeding and the adequacy of the applicants' pleadings. It thus seems to me that, even if, as instituted, it might be said that the substantive proceeding were not "proceedings" "in relation to a matter arising under [the FWA]", because a jurisdictional condition precedent was not satisfied (and it is unnecessary to determine that), such that s 570(1) of the FWA was inapplicable as a constraint on the general, discretionary power to award costs conferred by s 43 of the FCA Act, the appropriate exercise of that discretion is to not allow the respondent any costs. That is because any such costs would have been incurred in any event in relation to an extension of time application instituted at the outset (and thus subject to the constraint imposed by s 570(1) of the FWA) and, to the extent otherwise, there was a deliberate forensic decision (hardly unreasonable) to try to resolve the whole proceeding informally, including by mediation, without the adjudication of any procedural deficiencies. 19 For these reasons, I dismiss the respondent's application for costs. I regret the delay in determining the costs application. However, and with respect, for the reasons just given I also regret that it was necessary to determine such an application in the circumstances of the present case. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.