Robinson v Western Union Business Solutions

FLICK J: 1 In November 2018, reasons for decision were published in Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913. 2 In that proceeding Mr Robinson claimed that Western Union Business Solutions (Australia) Pty Ltd ("Western Union") had: contravened s 351 of the Fair Work Act 2009 (Cth) ("Fair Work Act"); and engaged in "unconscionable conduct" in contravention of ss 20 or 21 of Sch 2 of the Competition and Consumer Act 2010 (Cth). Compensation was awarded in the sum of $125,000, a sum of $15,000 was awarded in general damages, and a penalty imposed in the sum of $20,000. 3 The question as to the costs of the proceeding was reserved. 4 In January 2019, Mr Robinson provided written submissions seeking an order that Western Union pay 85% of his costs; submissions on behalf of Western Union sought an order that each party was to bear its own costs. In opposing the order sought, Western Union submitted that Mr Robinson's application was "misconceived" and - if accepted - would result in a "perverse outcome". 5 It is concluded that there should be no order as to costs such that each party should bear their own costs.

Costs & s 570 of the Fair Work Act 6 Section 570 of the Fair Work Act "operates as an express limitation on the broad discretion to award costs which is conferred on this court by s 43 of the Federal Court of Australia Act 1976 (Cth)": Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [140], (2015) 229 FCR 221 at 252 per Tracey, Gilmour, Jagot and Beach JJ (White J agreeing); Liu v Stephen Grubits and Associates [2019] FCAFC 24 at [5] per Reeves, Kerr and Lee JJ. 7 Section 570(2) provides (in part) as follows: 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 … 8 No submission could prevail that the case fell within s 570(2)(a). 9 Mr Robinson's submissions were primarily directed to s 570(2)(b) and (in summary form) contended that an order should be made upon the bases that: "the unlawful adverse action was made out on the respondent's own evidence and in fact was patent on the face of the applicant's letter of termination"; "the Court's conclusion that dismissal because of concerns about the applicant's capacity was a dismissal because of his disability involved the application of settled principles…"; and "the respondent did not identify any authority which supports its view of the notion of disability". 10 Notwithstanding the simplicity with which the submissions have been advanced on behalf of Mr Robinson, it is respectfully concluded that such simplicity does not adequately address: the fact that there remained to be resolved questions as to whether Mr Robinson had been dismissed "because" of his "mental disability" within the meaning of s 351(1); and the fact that there remained a real question as to whether any lack of "capacity" of Mr Robinson to return to work was but a "manifestation" of his claimed disability and a "manifestation" that could not be "severed" from that disability. 11 Although the resolution of Mr Robinson's claims may ultimately have depended upon the application to the facts of the principles set forth by Katzmann J in Shizas v Commissioner of Police [2017] FCA 61, (2017) 268 IR 71, it is not concluded that Western Union caused Mr Robinson to incur additional costs by reason of any "unreasonable act" undertaken on its behalf. There were also further interrelated questions, not "unreasonably" raised for resolution, with respect to: section 361 of the Fair Work Act, including a resolution as to the relevance of Ms Pickles' evidence that she "did not terminate the Applicant's employment because he suffered a mental disability" and her claims that she found such an allegation "insulting". In short, none of the factual issues resolved in the proceeding were issues which were not issues in need of resolution or issues which were unreasonably raised. On the facts of the present case, there was no unreasonableness on the part of Western Union in seeking to place reliance upon the evidence of Ms Pickles in an attempt to discharge such onus of proof as was ultimately held to be imposed upon it. 12 No state of satisfaction can therefore be formed that any act on behalf of Western Union was "unreasonable" such as to cause Mr Robinson to incur costs under s 570(2)(b) of the Fair Work Act.

THE ORDER OF THE COURT IS: Each party is to pay its own costs of the proceeding. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.