Yu v ACT Education Directorate

1. The respondent's application for an order that the applicant pay the costs of the application for an extension of time and leave to appeal be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 These reasons concern the costs of an unsuccessful application by the self-represented applicant for an extension of time and leave to appeal from a judgment of the Federal Circuit Court of Australia dismissing the applicant's application that the primary judge recuse himself. 2 On 1 March 2019 I ordered that the substantive application be dismissed: see Yu v ACT Education Directorate [2019] FCA 272. The respondent then applied for an order that the applicant pay the costs of the application and did so with reference to s 570 of the Fair Work Act 2009 (Cth). I reserved that question. I granted leave to the applicant to file and serve short written submissions on that issue and she did so on 6 May 2019. 3 Section 570 of the Fair Work Act relevantly provides: 570 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. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 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) …; or (c) …. 4 In the earlier judgment to which I have referred, Yu v ACT Education Directorate, I refused the applicant's application for an extension of time on the basis that there had been no reasonable explanation for the delay. I found, at [21], that there was no evidence, beyond the applicant's, and no persuasive evidence, as to her medical condition or conditions or how the claimed medical condition or conditions caused the delay. I also found, at [43], that there was not sufficient doubt to warrant the decision of the primary judge being reconsidered. 5 Although the applicant was unsuccessful, the question is whether the Court is satisfied that the applicant instituted the proceedings without reasonable cause. That is not established merely because a party fails in her claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; 140 CLR 470 at 473 per Gibbs J. 6 Section 570 reflects a policy of protecting a party instituting proceedings from liability for costs, but that protection may be lost: Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275 at [60]. There the Full Court went on to say that "a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure". This may be tested by asking whether, on the facts apparent to the applicant at the time of instituting the proceeding, there was no "substantial prospect of success". 7 Applying these principles, I would not conclude that the applicant's application had no real or substantial prospect of success, either at all or on the facts apparent to the applicant at the time of instituting the proceeding. 8 In large measure, in my assessment, the applicant failed on her application for an extension of time for lack of evidence. This is not to say that she would have succeeded if she had adduced the necessary medical evidence, but it distinguishes this case from one which is dismissed on the basis of some incurable defect which ought to have been apparent upon institution. 9 Similarly, in my assessment, the applicant failed to adduce evidence to show there was sufficient doubt to warrant the decision of the primary judge being reconsidered. For example, as I said at [38], the transcript as reproduced by the primary judge did not reveal that the primary judge raised his voice or shouted or banged the bench. There was no other transcript before me. Again, this is not to say that the applicant would have succeeded if she had adduced the relevant evidence. 10 For these reasons, I would dismiss the respondent's application that the applicant be ordered to pay the costs of her application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.