Manivannan v Tata Consultancy Services Limited

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 16 April 2025, I summarily dismissed matter SYG 466 of 2025 and matter SYG 629 of 2025 (New Proceedings) for being abuses of process on the basis that each of those cases raised matters that had been or could have been raised in matter SYG 1205 of 2022 (Principal Proceeding), which has had a busy procedural history and is listed for hearing on 4 and 5 June 2025.
2. The respondent, (TCS), has sought its costs of those applications dismissed on 16 April 2025. Each was a proceeding in the Court's jurisdiction under the Fair Work Act 2009 (Cth) (FW Act).

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:

(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.

1. Sections 569 and 569A are not relevant to the present applications.
2. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), relevantly provide:

22.02 Order for costs

(1) An application for an order for costs may be made:

(a) at any stage in a proceeding; or

(b) within 28 days after a final decree or order is made; or

(c) within any further time allowed by the Court.

(2) In making an order for costs in a proceeding, the Court may:

(a) set the amount of the costs; or

(b) set the method by which the costs are to be calculated; or

(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or

(d) set a time for payment of the costs, which may be before the proceeding is concluded.

...

22.09 Costs and disbursements

Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

(a) costs in accordance with Schedule 2; and

(b) disbursements properly incurred.

...

29.13 Costs

(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2.

...

(3) This rule does not limit a party's right to apply, under Part 22, for an order as to costs of the application.

1. When deciding an application for costs under r.22.02, the Court is to decide not only whether an order for costs should be made but also, if it is, to make an award that provides a fair indemnity to the successful costs applicant. The Rules do not presumptively apply the scale of costs found in sch.2 of the Rules: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 at 177-179 [79] - [80]; FSJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433 [35] - [46]; CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [25] - [26].

1. In support of its applications for costs, TCS read the affidavit of Christopher Nowland, a solicitor responsible to the solicitor on the record, affirmed 30 April 2025. Mr Nowland's affidavit set out the history of the litigation between the parties since 3 September 2024 when, in the Principal Proceeding, Mr Manivannan was ordered to pay TCS's costs of his application to file a further statement of claim and his application to strike out TCS's defence, fixed in the amount of $15,000. Relevantly, Mr Nowland deposed to correspondence sent by TCS's solicitors to Mr Manivannan earlier this year in relation to the New Proceedings, advising him to withdraw them on the basis that they were, amongst other things, abuses of process, on pain of an application for summary dismissal and indemnity costs. In their letter of 10 March 2025, those solicitors argued to Mr Manivannan:

You have repeatedly raised and then abandoned claims against our client and then, without explanation, sought to re-enliven them as separate but concurrent proceedings. You have also delayed in bringing new claims against our client and, instead of seeking leave to amend your case in the 2022 Proceedings, you have inexplicably brought them as separate proceedings.

The allegations contained First and Second New Proceedings were matters there were known by you at the time that first commenced the proceedings against our client. You have not advanced any reason as to why these new proceedings have been initiated at this point in time.

1. Mr Nowland deposed that TCS had incurred solicitor and client professional costs, counsel's fees and filing fees in all totalling $40,300.24, exclusive of GST.

1. TCS submitted that the documents Mr Manivannan filed in the New Proceedings had been voluminous and that significant work had been required to review them, including an analysis of where the claims contained in each of the New Proceedings overlapped with claims made in the Principal Proceeding that had been abandoned or struck out. It is further submitted that the New Proceedings had been commenced without a reasonable cause or were an unreasonable act that had caused it to incur costs.

1. TCS submitted that it would not be appropriate to quantify its costs by reference to the table of costs events set out in sch.2 to the Rules because those costs did not reflect the complexity of the work that had been involved in these cases and thus the costs that had been properly incurred in defending them. It argued that the Court should make a lump sum costs order on the basis that the Court had sufficient evidence on which to make a fair determination and that it would save the parties the inconvenience of a taxation. It submitted that although it would, in the circumstances, be entitled to indemnity costs it did not seek costs on that basis or even on the party and party basis and instead sought only $15,000 which represents a discount of more than 62% on the $40,300.24 actually incurred.

1. Mr Manivannan's submissions focussed on the merits of the New Proceedings and his reasons for bringing them and also argued that TCS had not identified any specific conduct of his that would cross the threshold for a costs order under s.570 of the FW Act. He argued that I had found on 16 April 2025 that his justification for bringing the New Proceedings:

... did not meet the threshold required to permit the new proceedings to continue, and that those proceedings were summarily dismissed as an abuse of process on grounds of procedural efficiency. This observation, however, did not constitute a finding that Mr. Manivannan acted unreasonably or without reasonable cause ...

and had not adopted the reasoning of Jessop J in Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 at [41], which I quoted.

A procedural finding of abuse - particularly where it relates to the form or structure of the proceedings rather than their substantive merit - should not, in and of itself, enliven section 570(2)(b) or 570(2)(a) of the Fair Work Act 2009. Further evidence of objectively unreasonable conduct, or that the proceedings were instituted without reasonable cause, or were frivolous or vexatious, is required before a costs order can be made under that provision.

1. Mr Manivannan also argued that TCS's solicitor and client expenses had been excessive and that the figure relied on had resulted from TCS:

• o performing more work than necessary,
• o responding to court-ordered directions,
• o and rectifying their own procedural failures.

1. A proceeding that is held to be an abuse of process, as the New Proceedings were, is plainly one that has been commenced without reasonable cause. Further, it is inherently unreasonable to, by means of a proceeding that is an abuse of process, cause another party to incur costs.
2. I have had regard to Mr Manivannan's submissions but they address matters that, in the circumstances, would be relevant to an appeal from the orders of 16 April 2025, rather than to the costs potentially available consequent upon those orders. The difficulty he faces is that the judgment of 16 April 2025 acknowledged that the New Proceedings had not been brought in bad faith but nevertheless found, because of the matters that were pleaded, that the proceedings were abuses. It is no step from that finding to conclude, notwithstanding the matters that Mr Manivannan has advanced in his submissions about the bona fides of the New Proceedings, that the criteria of s.570 of the FW Act have been satisfied.
3. I should also note in that regard that Thirteenth Corp Pty Ltd v State was cited in the reasons for judgment on 16 April 2025 because it was a foundation of those reasons.
4. I therefore conclude that TCS should have its costs of the two New Proceedings.
5. I further conclude that the $15,000 sought by TCS is a reasonable amount to award it and, because of its considerable reduction on TCS's solicitor and client costs, represents a fair, and perhaps generous to Mr Manivannan, assessment of the costs to which it is properly entitled. As the costs are to be spread across two proceedings each costs order will be for the sum of $7,500. As it turns out, that is a figure not far from what would have been available under the Court's scale.
6. TCS has sought immediate payment of the costs that are to be ordered so as to impress upon Mr Manivannan the consequences of conducting himself in the proceedings in an unreasonable manner. However, it seems to me that Mr Manivannan believed that he was acting in a reasonable and responsible manner even if, by the objective standards of practice, he was not. I feel that the only cure for that problem is experience which, as a litigant in person, Mr Manivannan is likely always to lack. However, the issue does not arise because the costs under consideration are ones payable at the conclusion of the two proceedings in question. They are not interlocutory orders made at some point in the course of an as-yet undetermined case.

1. I therefore order in each proceeding that the applicant pay the respondent's costs fixed in the amount of $7,500.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.