One Stop Warehouse Pty Ltd v Oldfield

1. The respondent's oral application for costs of the first applicant's application for leave to appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 After I delivered my ex tempore judgment in this matter on 4 November 2020, I made orders for the exchange of brief written submissions on Ms Liesa Oldfield's (the respondent), oral application for costs of One Stop Warehouse Pty Ltd's (the first applicant), unsuccessful application for leave to appeal the judgment of Jarrett J in the Federal Circuit Court of Australia (Oldfield v One Stop Warehouse Pty Ltd & Ors [2020] FCCA 1865). 2 In her written submissions, Ms Oldfield referred to s 570(2)(b) of the Fair Work Act 2009 (Cth) (the FWA) and to the Full Court decision in the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Costs of the Cup of Tea Case) [2019] FCAFC 36. Based thereon, she claimed that this was not a "mere case where a party pursued an argument ultimately rejected by the Court". Instead, she contended, the pursuit of the application for leave to appeal by One Stop Warehouse in this matter was "misconceived" and "demonstrated an unreasonable failure to abide by the decision of the primary judge in what this Court observed to be a matter of practice and procedure". As well, Ms Oldfield contended that, by making its application for leave to appeal, One Stop Warehouse caused delay in the substantive proceeding and caused her to incur additional costs. Finally, she contended that One Stop Warehouse's "unmeritorious" application was likely to cause the substantive proceeding to be "fragmented and more expensive and lengthier than it has to be" citing Bomanite Pty Limited v Slatex Corp Aust Pty Limited (1991) 32 FCR 379 at 391 per French J (as he then was). 3 For its part, One Stop Warehouse contended that The Costs of the Cup of Tea Case was distinguishable because, unlike in that matter, the primary judge in this proceeding did not identify any factor that tainted its application. To the contrary, it contended that its application for leave to appeal was "genuinely advanced" and was supported by a "substantial factual basis". It also contended that "[m]ere failure does not and cannot demonstrate … unreasonableness" for the purposes of s 570(2)(b) of the FWA. Finally, it contended that the substantive proceedings before the Federal Circuit Court of Australia had not been stayed pending its application for leave to appeal and there was therefore no evidence of delay having been caused by its application. 4 Plainly Ms Oldfield is correct that the pursuit of an appeal of this kind relating, as it does, to a matter of practice and procedure has the potential to fragment the substantive proceedings and thereby cause delay and additional costs to be incurred. However, s 570(2) of the FWA makes it clear that a party to a proceeding in a matter arising under the FWA "may be ordered to pay the costs only if" (emphasis added) one of the conditions in s 570(2) is met. The condition Ms Oldfield has relied on is that expressed in s 570(2)(b): "the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs". This condition is to be contrasted with that in s 570(2)(a): "the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause". 5 In Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143, the Full Court said (at [29]) of s 824(2) of the Workplace Relations Act 1996 (Cth), which was in broadly similar terms to s 570 of the FWA, albeit not expressed as definitively as the latter (see above): … As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable … while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also 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 under the WR Act in the manner which they deem best. (Citation omitted) 6 Despite purporting to rely on s 570(2)(b) of the FWA, in reality Ms Oldfield has relied in her written submissions on s 570(2)(a). That is so because her primary contention appears to be that One Stop Warehouse's application was "misconceived" in that it involved a failure to abide by the decision of the primary judge on a matter of practice and procedure. Self-evidently, every appeal involves an element of the latter. As for the former, even considered through the prism of s 570(2)(a) of the FWA, a "misconceived" proceeding does not, without more, comprise unreasonableness for the purposes of that subsection. 7 As One Stop Warehouse pointed out in its written submissions, an example of this "without more" was provided in The Costs of the Cup of Tea Case where the applicant Commissioner pursued an appeal in circumstances where he had been warned at an early stage of the hearing before the primary judge that the incident at the centre of the proceeding was "miniscule" and one not "worthy of … attention" (see at [21]). 8 In my view, Ms Oldfield has not provided any evidence which would permit this Court to be satisfied that One Stop Warehouse acted unreasonably within the terms of s 570(2)(b). A "misconceived" proceeding, or one that involves a failure to abide by the decision below, does not, by itself, in the circumstances of this matter, constitute unreasonableness. 9 For these reasons, Ms Oldfield's oral application for costs of One Stop Warehouse's application for leave to appeal must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.