Perez v Northern Territory Department of Correctional Services

WHITE J 1 On 6 May 2016, I delivered judgment on an appeal against a judgment of the Federal Circuit Court (the FCC). By that judgement the FCC had dismissed the application brought by the appellant pursuant to the adverse action provisions of the Fair Work Act 2009 (Cth) (the FW Act). I found that the appeal succeeded in only two respects: first, that the appellant had made good the appeal with respect to the way in which the FCC had dealt with his claim that a recommendation by Ms Andrews on 15 October 2013 that his employment with the respondent should be terminated constituted adverse action; and secondly, that the FCC had not dealt with the appellant's claim that the suspension from his employment on 23 December 2013 was a contravention of s 351 of the FW Act, because it had been made by reason of his mental disability. 2 All of the remaining grounds of appeal, which were of a diverse kind, were dismissed. It is fair to say that the appellant failed on many more of the grounds than those upon which he succeeded. 3 The appellant had at his own request been excused from attending the delivery of judgment on 6 May 2016. A copy of the reasons was provided to him immediately afterwards. Some three months later, on 11 August 2016, the appellant lodged an application in the Court seeking a costs order in his favour. 4 In my opinion, the costs application must fail for a number of reasons. First, there is the operation of s 570 of the FW Act. Section 570 applies to proceedings, including an appeal, in a court exercising jurisdiction under the FW Act. It is undoubtedly the case that the appellant's proceedings involved an exercise of jurisdiction under the FW Act because he was pursuing causes of action which arose because, and only because, of provisions in the FW Act. Accordingly, s 570 applies. 5 Section 570(2) provides (relevantly for the purposes of this afternoon's application) that a party may be ordered to pay the costs only if the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. This means that, in order for the appellant to succeed in obtaining an order for costs, he would have to show that the respondent had caused him to incur costs by some act or omission which should be characterised as unreasonable. The appellant does not point to any such act or omission and none is apparent on the materials available to the Court. The very fact that the respondent was successful in defending a number of the grounds of appeal brought by the appellant would make it difficult for him to establish that the respondent had acted unreasonably so as to cause him to incur costs in connection with the appeal. I regard this as a difficulty for the appellant which is insuperable. 6 The second difficulty arises from the principle that, ordinarily, issues of costs should be addressed as part of the substantive proceedings or, at the least, at the time Judgment is delivered. The Court takes the view that it is undesirable for questions of costs to be deferred and raised only later. Amongst other things, the Court is concerned that belated applications for costs result in the parties incurring additional and unnecessary costs before a matter is finalised. This principle has been stated in a number of decisions of the Court, including: Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95, (2007) 159 FCR 274; Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200, (2008) 253 ALR 52; and Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572. 7 In the particular circumstances of the present case, I attach no significance to the fact that the question of costs was not addressed as part of the substantive submissions on the hearing of the appeal. Leaving s 570 to one side, the number of grounds in the notice of appeal made it impractical for the parties to address the question of costs as they did not know then what the fate of each ground would be. 8 However, the appellant's failure to attend the judgment on 6 May 2016 is a relevant consideration. That was an obvious time at which the question of costs should have been raised. If the question had been raised, then, it could have been dealt with quite quickly and efficiently. The Court should not encourage the course adopted by the appellant presently in applying for costs several months after judgment has been delivered. 9 The third factor which to my mind counts against an order for costs operates independently of the first two grounds. That is a consideration of the party who was successful on the appeal. The appellant attached significance to the fact that he succeeded on two grounds. However, he lost on several other grounds, those being grounds which occupied a considerable part of the Court's time on the hearing of the appeal. 10 Had the appellant confined his appeal to only the two grounds upon which he succeeded, the appeal would have been much shorter, and much less costly. It is improbable in those circumstances that, even if the first two factors I have mentioned did not exist, that an order for costs would be made in favour of the appellant. On the contrary, he may well have faced an application for costs from the respondent. 11 For these reasons the application for costs is dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

SCHEDULE OF PARTIES NTD 38 of 2015 Respondents Fourth Respondent: FRANK TUNNEY Fifth Respondent: JOHN BROWN Sixth Respondent: GRANT BALLANTINE Seventh Respondent: MICHAEL ADEYEMO