Knight v Visionstream Australia Pty Ltd

O'CALLAGHAN J: 1 On 13 December 2017 the Court published reasons allowing the appellant's appeal, setting aside the orders of the Federal Circuit Court of Australia (the FCCA) made on 12 May 2017 and remitting the matter. The parties were asked to file short written submissions on the question of whether any order as to costs should be made: see Knight v Visionstream Australia Pty Ltd [2017] FCA 1513. 2 Those submissions have now been filed. In my view, the respondent should pay the applicant's costs of the appeal, and the costs of the hearing before the FCCA. 3 Section 570 of the Fair Work Act 2009 (Cth) relevantly provides: 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. … (2) The party may be ordered to pay the costs only if: … (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or … 4 In Stanley v Service to Youth Council Incorporated (No 3) (2014) 225 FCR 357 at [38]-[40], White J summarised the principles applicable in cases of this type as follows: 38. Section 570(2)(b) permits a Court to order a party to pay costs if the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. The Court must be satisfied both that there was either an unreasonable act or omission and that that Act or omission caused another party to incur costs. 39. It was said in respect of s 824 of the [Workplace Relations Act 1996 (Cth)] that the Court should be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation in the manner which they deem best: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 at [29]; (2008) 170 FCR 574 at 582. Counsel for the applicant also referred to Ashby v Slipper (No 2) [2014] FCAFC 67 at [35] in which the Full Court, after referring to Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199 at [60]; (2006) 156 FCR 275 at 289, said that s 570 "reflects a policy of protecting a party instituting proceedings from liability for costs" and "costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order" … 40. Ordinarily, the question of whether an act or omission is unreasonable is to be determined as a matter of fact having regard to the circumstances of each case. That is the approach which I will adopt in the present case but having regard to the evident policy of s 570, as identified in Clarke, that the Court should not too readily find conduct of a litigant to be unreasonable. 5 In this case, the first question that arises is whether the respondent acted unreasonably in doing what the appellant calls "an about face" before the primary judge, by abandoning its consent to an order that the name of the true employer be substituted as the respondent to the proceeding, and instead adopting the primary judge's point that there was no jurisdiction to do so because the name sought to be substituted was not the name of the respondent on the certificate issued by the Fair Work Commission under s 368(3)(a) of the Fair Work Act 2009 (Cth). The second question is whether it acted unreasonably in persisting with the point on the hearing of the appeal. 6 The respondent says that it did not act unreasonably because the view that there was no jurisdiction to make a substitution in the circumstances "was open on the authorities cited [before the primary judge". The respondent did not name the authorities cited before the primary judge, but I take it to be referring to those discussed at [19]-[33] of the primary judge's reasons, including, relevantly, United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406. 7 The appellant says that the point was always untenable and that the respondent should never have done an about face before the primary judge and should have conceded the point at the hearing of this appeal. 8 In my view, the respondent did act unreasonably in both respects because: (1) the notion that s 368 of the Fair Work Act 2009 (Cth) could operate so that an application by a dismissed employee to substitute one party for another as a respondent to a general protections application, which the Rules of Court would otherwise readily allow, must be disallowed when the name of the proposed new respondent is not identical to the name of the party appearing on the certificate provided by the Fair Work Commission under s 368(3)(a) is an untenable proposition; and (2) with great respect, no good reason for it was advanced either by Lucev FM in United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406, by the primary judge below in this case, or by the respondent in its submissions. 9 For those reasons, I will order that the respondent pay the appellant's costs of the proceeding in the FCCA and of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.