Saxena v PPF Asset Management Ltd

REASONS FOR JUDGMENT 1 In this matter the respondents were, on 15 October 2010, ordered to file and serve any affidavits and any documents upon which they relied on or before 8 December 2010. The respondents failed to comply with that order and it was not until on or about 16 March 2011 that the order was complied with. In the interim, there has been numerous pieces of correspondence flying between the practitioners acting for the applicant and the respondents dealing with non-compliance and fruitless attempts to achieve a consent position with which to approach the Court for orders to amend the orders made on 15 October 2010. 2 By a notice of motion dated 11 March 2011, the applicant seeks various orders, the essence of which is that there be a judgment in default given to the applicant by reason of its failure to comply with the orders of the Court. By a notice of motion, which is undated but which was apparently filed with the Court on 16 March 2011, the respondents seek orders amending the time in which they were ordered to file and serve their material and other consequential orders. 3 In my view, it would not be appropriate for judgment in default to be entered given the fact that the material from the respondents which was required by the orders of the Court has now been filed and served. The applicant's notice of motion for judgment in default was sensibly not pressed in those circumstances. Given that the material in question was filed and served on 16 March 2011, it is somewhat surprising that the applicant continued to press its notice of motion until this morning. I accept however, that the applicant and its practitioners needed to be here, in any event, to deal with the respondent's notice of motion. 4 The only remaining question is whether or not the Court should make orders as to the costs of, and incidental to, the notices of motion and/or any orders in relation to any costs that might have been thrown away by the applicant chasing the material of the respondents which was required by the order of 15 October 2010. As the proceeding is a proceeding which, at least in part, relies on the Fair Work Act 2009 (Cth) ("the Fair Work Act"), s 570 of that Act applies in relation to any costs that may be ordered by the Court. Section 570(2) sets out limited circumstances in which the Court may order a party to pay costs. Relevantly and by reference to s 570(2)(b), the Court may 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. 5 The predecessor provision to s 570 was considered by a Full Court of this Court in Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574 where at [29] the Court said: Indeed, while courts should use the discretion in section 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 a 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. 6 With great respect to the observations made in CFMEU v Clark, I wholeheartedly agree that this Court ought be very careful indeed to exercise the discretion provided by s 570(2) and should not do so other than in a clear case. The limited discretion conferred on the Court by that subsection ought not become the basis for arguments about costs in relation to any and every transgression in the conduct of a case. 7 However, the failure by a party to comply with orders of the court is a matter of some seriousness. The overarching objectives outlined in section 37M of the Federal Court Australia Act 1976 (Cth) ("the Federal Court Act") make it abundantly clear that proceedings before the Court should be conducted as efficiently as possible, with an eye to the expense involved in the conduct of the litigation. 8 That provision supports the case management objectives of the Court and it is beyond argument that the case management requirements of the Court will not be achieved if parties fail to act in compliance with orders of the Court and do so for extended periods of time, without seeking to rectify those circumstances by approaching the Court for orders varying the requirement of those orders which have not been complied. In this case, over three months went by between the time when compliance was due and when the respondents first approached the Court for orders which would have rectified that non-compliance. 9 Whilst I accept, to some extent, the respondents' criticism of the conduct of the applicant, which I think was at times heavy handed, I do nevertheless regard the failure by the respondents to comply with the Court's order, for the very extended period of non-compliance that occurred, to have been an unreasonable act or omission within the terms of s 570(2)(b) of the Fair Work Act. 10 In those circumstances, I intend to make an order that the respondents pay the applicant's costs of and incidental to the applicant's notice of motion filed on 16 March 2011. I do not intend to make any orders for the payment of costs in relation to the applicant's notice of motion of 11 March 2011. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.