Talbot v Tesolin Consulting Pty Limited trading as Ray White Quakers Hill

A. introduction 1 By interlocutory application dated 8 December 2023, the applicant seeks the leave of the Court under r 26.12 of the Federal Court Rules 2011 (Cth) to file a notice of discontinuance and to do so with no cost consequences. The respondent does not object to the discontinuance of the proceeding but contends that any grant of leave should be conditional upon an order that the applicant pay the costs of the respondent. 2 For the reasons developed below, the orders sought by the applicant should be made.

B. Background 3 On 26 June 2023, I ordered that the proceeding be referred to mediation. 4 On 2 August 2023, pursuant to leave granted on 31 July 2023, the respondent served a subpoena on Hemmes Trading Pty Ltd. 5 On 1 September 2023, the parties participated in a mediation. They failed to resolve the proceeding. 6 On 14 September 2023 I made orders, by consent, for the filing of affidavit evidence, including an order requiring the applicant to file her affidavit evidence in chief by 8 October 2023 and for a further case management hearing to be conducted on 1 December 2023. 7 The applicant did not file her affidavit evidence by 8 October 2023 and on 30 November 2023 I made orders, again by consent, including an order requiring the applicant to file such evidence by 8 December 2023. That order was expressed to be a guillotine order. 8 On 8 December 2023, the applicant did not file her affidavit evidence in chief and instead filed the interlocutory application presently under consideration. That application was lodged on 8 December 2023 in the context of a deterioration in the applicant's health, exacerbated by this proceeding. 9 On 18 December 2023 and in a context in which the respondent opposed the present application, I made orders, again by consent, for the preparation of that application for determination including an order that the applicant file and serve an affidavit and a brief outline of submissions concerning the present application by 25 January 2024. 10 On 25 January 2024, the applicant filed an affidavit of her solicitor. That affidavit explained the reasons why the applicant seeks to discontinue the proceeding. It included a medical certificate from the applicant's treating physician. It also foreshadowed that the applicant expected to shortly file and serve a report from a specialist. That report was filed on 2 February 2024 following a formal request by the applicant's solicitor for an expert report made on 24 January 2024.

Relevant principles 11 The effect of r 26.12(2) in the present case - where the return date fixed in the originating application has passed, the pleadings have closed and the respondent has not provided its consent to a discontinuance - is that: (1) the leave of the Court for the filing of the notice of discontinuance is required; and (2) if leave were to be given and the applicant were to file a notice of discontinuance, then the applicant would be liable to pay the respondent's costs unless the Court orders otherwise. 12 The discretion to otherwise order is a manifestation of the broad discretion as to costs conferred upon the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). However, that discretion is expressly limited by s 570 of the Fair Work Act 2009 (Cth) (FW Act): s 43(1)(b) of the FCA Act; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at 252 [140] (Tracey, Gilmour, Jagot and Beach JJ; White J agreeing). Section 570 of the FW Act provides: 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. (emphasis in original) 13 The discretion in s 570(1) of the FW Act to award costs in favour of a party to a proceeding is enlivened only in accordance with ss 570(2), 569 or 569A: s 570(1). In the present case, ss 569 and 569A are not relevant. The respondent relies upon s 570(2)(b) and contends that the applicant has unreasonably performed an act or made an omission that caused the respondent to incur costs. 14 In an earlier judgment in this proceeding - Talbot v Tesolin Consulting Pty Limited trading as Ray White Quakers Hill [2023] FCA 925 (Talbot (No 1)) - I summarised the principles germane to an application for costs founded on s 570(2)(b), as follows: 29. Whether a party behaved unreasonably is a question that is to be determined objectively: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 at 402 [32] (Tracey J). 30. In Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574, the Full Court (Tamberlin, Gyles and Gilmour JJ) made the following observations concerning "an unreasonable act or omission" (at 582 [29]): … 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: Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. ... Indeed, 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. 31. The proposition that the discretion is to be exercised with caution is well-established. In Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8], the Full Court (Siopis, Collier and Katzmann J) endorsed the following explanation from Mortimer J (as her Honour then was) in Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at 122 [64]: … The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s 611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s 570, are traced by the Full Court in Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) (2012) 203 FCR 430; [2012] FCAFC 103 at [3]-[4] per Jessup and Tracey JJ. 32. To similar effect, see Hutchinson v Comcare (No 2) [2017] FCA 370 at [7] to [9] (Bromberg J). (emphasis in original)

Were there unreasonable acts or omissions of the applicant that caused the respondent to incur costs? 15 The respondent contends that the following were unreasonable acts or omissions of the applicant. 16 First, the failure by the applicant to file and serve her evidence in accordance with the order made on 14 September 2023 requiring the filing and service of her affidavit evidence by 8 October 2023. There was a clear failure by the applicant to comply with the timetable. However, as explained in Talbot (No 1) at [42], mere inefficiency in the conduct of litigation is insufficient to establish unreasonable conduct for the purposes of s 570(2)(b) of the FW Act. 17 Secondly, the failure by the applicant to file and serve her evidence by 8 December 2023 in accordance with the order made on 30 November 2023. It is true that the applicant did not file evidence in accordance with that order, however it is clear that by the expiry of the time for compliance with that order, the applicant had resolved to seek a discontinuance of the proceeding, and her application to do so was lodged at 4:22pm on 8 December 2023. This does not give rise to any unreasonable conduct for the purposes of s 570(2)(b) of the FW Act. 18 Thirdly, the failure by the applicant to file and serve all of her evidence in accordance with the order made on 18 December 2023. In this regard, I note that the applicant filed the expert report of the specialist on 2 February 2024 (i.e., one week late). Again, this is not unreasonable conduct for the purposes of s 570(2)(b) of the FW Act. 19 Fourthly, the respondent takes issue with the fact that the opinion of the specialist was not formally sought until 24 January 2024 and thus - it contends - the opinion of the specialist could not have been central to the applicant's desire to discontinue the proceeding. This is a non sequitur, particularly in circumstances where it is clear from the specialist's report that she has been treating the applicant for several years. Further, the applicant did not contend that a particular statement by the specialist was causative of the decision to discontinue the proceeding; and the evidence of the specialist should be regarded as confirmatory of the applicant's health position, which position was the reason that the applicant decided to discontinue the proceeding. 20 Fifthly, the respondent contends that the applicant's Statement of Claim and Amended Statement of Claim each contain assertions which are not only false but were false to the knowledge of the applicant when those documents were filed. It is not necessary to set out those allegations or the evidence in support of its contention that the applicant made knowingly false allegations. It is sufficient to record that it is inappropriate on an application of this kind, where there has been no hearing on the merits, to explore such contentions: see e.g., Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681. 21 Finally, the respondent submitted that the applicant failed to inform the respondent, prior to the issue of the subpoena and the mediation, that she would not continue with the proceeding. The evidence establishes that the respondent served the subpoena on 2 August 2023, the mediation occurred on 1 September 2023, and the applicant filed the application to discontinue the proceeding on 8 December 2023. There is simply no evidence capable of supporting the implicit premise in the respondent's submission that the applicant had decided prior to 2 August 2023 (alternatively 1 September 2023) that she would not prosecute the proceeding. The submission is baseless, and I reject it. 22 Thus, I am not persuaded that the applicant has engaged in any unreasonable conduct within the meaning of s 570(2)(b) of the FW Act. It follows that it is not necessary to consider whether the conduct complained of caused the respondent to incur costs. Nevertheless, I note that the respondent's submissions refer in this regard only to costs associated with the service of the subpoena on 2 August 2023 and participation in the mediation on 1 September 2023. All such costs were incurred well before any default by the applicant in filing her evidence and could not have been caused by such default.

D. Conclusion 23 For the reasons set out above, the respondent has not established that any unreasonable act or omission of the applicant caused the respondent to incur costs. It follows that the discretion in s 570(1) of the FW Act has not been enlivened and thus that there should be no order that the applicant pay the respondent's costs of the proceeding. I will make orders accordingly. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.