United Voice v Brisbane Executive Security Teams Pty Ltd

REEVES J: 1 This is an application for leave to appeal the costs decision of the primary judge delivered on 19 February 2019: United Voice v Brisbane Executive Security Teams Pty Ltd & Anor (No. 2) [2019] FCCA 1386. To obtain such leave to appeal, the applicant must show that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 at [2]). 2 The applicant's draft notice of appeal contains 10 proposed grounds. In oral argument, its counsel placed those grounds into five areas of error. In broad summary: the first related to a denial of natural justice; the second and third related to errors of principle said to have been made by the primary judge; the fourth related to an allegation that the primary judge had failed to give reasons for his order of indemnity costs; and the fifth was that, by including the first day of the trial, the primary judge's final costs order was inconsistent with the reasoning earlier in his reasons. Those errors were said to emerge at various points at [10]-[18] of the primary judge's reasons. In those paragraphs, his Honour was addressing the provisions of s 570(2)(b) of the Fair Work Act 2009 (Cth) (the FWA). He had earlier rejected the respondents' contention that s 570(2)(a) of the FWA applied. Subsection (a) raises a question about the reasonableness of the applicant having issued the proceedings in question. 3 On a fair reading of his Honour's reasons at [10]-[18], I consider his Honour adopted the following approach. At [10], he listed a number of unreasonable acts that had been alleged by the respondents. There is no challenge to the accuracy of that list. At [11], he stated that he had examined the history of the settlement offers referred to in that list and had taken that history into account. There is nothing to gainsay the accuracy of those statements. At [12], he examined the curious position that was identified at [10(d)] of his reasons: that the applicant had, on 12 October 2018, rejected an offer of $15,000 made by the respondents and counter offered the lower figure of $12,000. His Honour postulated that an explanation for that curiosity may be a view held by the applicant that the respondents were engaged in anti-union activity or had adopted an anti-union attitude. 4 At [13] and [14], his Honour examined the events of the first day of the trial and, in particular, the evidence of the applicant's main witness, Mr Laidley. Having done so, he appears to have concluded, without expressly saying so, that any basis that the applicant had for believing that the respondents had adopted an anti-union attitude was removed by that evidence. His Honour then concluded at [15] that, once that anti-union attitude aspect had been removed, "given the history of the matter", the applicant's pursuit of the proceeding thereafter was unreasonable. 5 At [16]-[18], his Honour turned to consider the exercise of his discretion on costs. At [17], he stated, without identifying any special or unusual feature, that the applicant should pay the respondents' costs of the three days of the trial on an indemnity basis. At [18], his Honour appeared to infer that the respondents had incurred costs in attending the trial after the first day. If so, that inference is, in my view, not unreasonable, in all the circumstances. 6 On this reading of his Honour's reasons, I consider that most, but not necessarily all, of the applicant's proposed grounds of appeal, as grouped in the five areas of error identified by its counsel, will fail. 7 Specifically, I do not consider there is any merit in the first three groups of alleged error: the denial of natural justice error and the two acting on wrong principles errors. That leaves the fourth and fifth areas of error: the first being that his Honour expressed no reason for his indemnity costs order and the second being the inconsistency between his reasoning at paragraphs [10]-[16] and his ordering the first day's costs of the trial against the applicant. On these two aspects, the applicant may have raised sufficient doubt to justify this matter being considered by a Full Court, thereby meeting the first criterion expressed above. However, even if that is so, I do not consider it has met the second criterion, that is, that it will suffer a substantial injustice if these errors are not corrected. 8 My reasons for reaching this conclusion are as follows. First, even if his Honour erred by not stating in his reasons what factor/s caused him to order indemnity costs, the unreasonable refusal of the offer canvassed at [10]-[15] could, if this matter were to be considered by a Full Court, justify a conclusion that there was a special feature present in this matter that justified that costs order. It is well-established that an unreasonable refusal of an offer to settle a proceeding constitutes such a special feature. That being so, I do not consider the applicant will suffer substantial injustice if that error is not corrected. 9 That would leave as the only other possible error the inconsistency between his Honour's earlier reasons and the order for costs of the first day of the trial. Assuming that does amount to an error, I do not consider it is such that substantial injustice will be caused to the applicant if it is not referred to a Full Court. Apart from anything else, the costs associated with that exercise will likely far outweigh the costs of the first day of the trial. 10 For these reasons, the applicant's application for leave to appeal the costs order filed 5 March 2019 must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.