FEDERAL COURT OF AUSTRALIA
Dahler v Australian Capital Territory (No 2) [2014] FCA 1154
|
Solicitor for CPM Reviews Pty Ltd: |
Ms M Brennan |
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
Applicant | |
|
AND: |
First Respondent MINISTER FOR DISABILITY CHILDREN AND YOUNG PEOPLE (ACT) Second Respondent |
|
DATE OF ORDER: |
|
|
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant’s barrister, Judith Keys, personally pay the respondents’ costs of the application for leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
|
|
FAIR WORK DIVISION |
ACD 76 of 2014 |
|
BETWEEN: |
CLINTON DAHLER Applicant |
|
AND: |
AUSTRALIAN CAPITAL TERRITORY First Respondent MINISTER FOR DISABILITY CHILDREN AND YOUNG PEOPLE (ACT) Second Respondent |
|
JUDGE: |
KATZMANN J |
|
DATE: |
30 OCTOBER 2014 |
|
PLACE: |
SYDNEY (VIA VIDEO LINK TO CANBERRA) |
REASONS FOR JUDGMENT
1 Clinton Dahler is suing the Australian Capital Territory and the Minister for Disability, Children and Young People (ACT) over the termination of his employment in a proceeding which is pending in the Federal Circuit Court of Australia (“Circuit Court”). He contends that his dismissal constituted “adverse action” taken for a prohibited reason in contravention of Pt 3-1 of the Fair Work Act 2009 (Cth) (“FW Act”). On 2 September 2014 I dismissed an application he brought for leave to appeal from a judgment of the Circuit Court in which a number of interlocutory decisions were made: Dahler v Australian Capital Territory [2014] FCA 946 (“the principal judgment”). Now the respondents seek their costs.
2 The decisions the subject of the leave application were decisions in which the primary judge:
refused to recuse himself from the hearing of the interlocutory applications;
dismissed an application by Mr Dahler for the costs of his Application in a Case filed on 2 December 2013 and of his application for an extension of time and leave to appeal filed in this Court on 3 March 2014;
declined to restore CPM Reviews Pty Ltd (“CPM Reviews”) as a respondent to the proceeding and ordered Mr Dahler to pay its costs; and
struck out numerous paragraphs of the statement of claim and the entire reply.
3 The application was wholly unsuccessful.
4 In the principal judgment I noted that CPM Reviews had sought its costs on the leave application and that the respondents were silent on the question of costs. I observed that ordinarily that would be a matter of no moment as costs would usually follow the event. But if the application for leave to appeal was a proceeding “in relation to a matter arising under [the FW Act]”, then s 570 of that Act would operate to limit the circumstances in which the Court could make a costs order. Noting that no submissions were advanced by CPM Reviews in support of its costs application, and in the face of the respondents’ silence, I made the following orders:
2. If CPM Reviews Pty Ltd intends to press its application for costs and if the respondents also seek costs, any such application be made in writing, supported by submissions no longer than two (2) pages, and filed and served within seven (7) days.
3. The applicant file any submissions in reply (not exceeding two (2) pages) within seven (7) days of being served with any such submissions.
5 CPM made no submissions. Accordingly, I conclude that its application for costs is not pressed. The respondents, however, did.
6 It is common ground that the hearing of the application for leave to appeal is a proceeding in relation to a matter arising under the FW Act. Section 570 of the Act 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) 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.
7 The respondents relied on s 570(2)(a). They submitted that they should have their costs because each challenge to the primary judge’s decisions was vexatious and/or made without reasonable cause.
8 There is a substantial overlap between these two criteria. A proceeding will be vexatious if it could not possibly succeed; its purpose in that event is merely to harass or annoy. A proceeding is brought without reasonable cause if it was bound to fail.
9 In Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 at [64] the Full Court observed:
[T]he test of whether a proceeding is vexatious is an objective one. The authorities emphasise the need for an objective determination that the proceeding is without foundation, hopeless, or “utterly hopeless”. The weight of authority in the Federal Court suggests that motive or intention is not relevant to the question of whether a proceeding is vexatious: Ramsey v Skyring [(1994) 164 ALR 378] at [56]–[57]; Jones Lang Lasalle [[2005] FCA 1614] at [30]; cf Wentworth [(1988) 14 NSWLR 481] at 490–491.
10 “Vexatious proceeding” for the purposes of the Federal Court Rules 2011 (Cth) has the meaning given to the expression in s 37AM of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”): see Sch 1 of the Rules. Section 37AM of the FCA Act states that a “vexatious proceeding” includes:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
11 In Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60] the Full Court explained that “a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure”.
12 It follows that for present purposes it is sufficient to decide whether the application was brought without reasonable cause.
13 Mr Dahler opposed the respondents’ application. He referred to the following passage in the reasons of Pagone J in Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 (“CFMEU v Corinthian”) at [8]:
To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473. The relevant provisions reflect “a policy of protecting a party instituting proceedings from liability for costs” and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60]. In Kangan Batman Institute it was said by the Full Court at [60] that “a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure”. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted “without reasonable cause” was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no “substantial prospect of success”. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant’s own version of the facts.
14 Mr Dahler submitted that the Court must consider “whether there were no substantial prospects of success in relation to all issues in totality” or “whether all proposed grounds of appeal were doomed to failure” and that the respondents failed to establish that. He noted that in opposing the grant of leave the respondents did not submit that the leave application was instituted vexatiously.
Was the application for leave to appeal brought without reasonable cause?
15 To answer this question it is necessary to examine the bases upon which all four challenges to the primary judge’s decision were dismissed.
16 I turn first to the challenge to the primary judge’s refusal to recuse himself.
17 As I explained in the principal judgment, the recusal application rested on remarks the primary judge had made that were critical of the conduct of Mr Dahler’s barrister, Ms Keys, in a judgment in an earlier case in which she had appeared for her brother: Keys v Department of Disability, Housing & Community Services [2011] FMCA 35 (“the 2011 judgment”). Ms Keys claimed that the remarks had defamed her and that for this reason the judge was biased against her. In the draft notice of appeal attached to the application for leave to appeal, the primary judge was alleged to have erred because he republished the criticisms expressed in the previous case, applied the principles relating to apprehended bias rather than actual bias, and criticised counsel for failing to comply with orders made in chambers when the orders did not comply with s 13 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the applicant was not notified of them until 1 July 2014. It was also alleged that, in refusing to recuse himself, the primary judge failed to acknowledge that the criticisms of Ms Keys in the previous proceeding were “unfair and unjustified, and needed to be retracted or corrected”.
18 I refused leave to appeal in relation to this matter because I considered that there was insufficient doubt about the primary judge’s decision to warrant it being reconsidered on appeal. The contentions made by (or more accurately on behalf of) Mr Dahler were, in truth, hopeless.
19 First, as I pointed out in my reasons in the principal judgment, if the primary judge erred in applying the test for apprehended, rather than actual, bias that was an error in Mr Dahler’s favour as the test for apprehended bias is not as stringent as the test for actual bias. An allegation of actual bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. The allegation in this case was neither distinctly made nor clearly proved. It was necessary for Ms Keys to prove that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia at [72]). As I observed in the principal judgment, it was understandable that the primary judge did not appreciate that the basis of the application was for actual bias. Nothing Ms Keys put to his Honour even hinted that this was the reason for the application. In all these circumstances, there was no foundation for the contention that the primary judge had erred.
20 Second, the criticisms of Ms Keys were only republished in the context of the reasons. As the recusal application was based on them, the reasons would have been difficult to understand without referring to them and any paraphrasing of them might have done Ms Keys a disservice. The allegation relating to republication was not even an arguable error.
21 Third, even if the criticisms of her conduct in the earlier case were unfair, Ms Keys could point to no logical connection between them and the proposition that the judge had a closed mind which was not open to persuasion in the present one.
22 I should say something, too, about the alleged error in criticising counsel for failing to comply with orders made in chambers although no submissions were made about it. The orders referred to were made on 13 June 2014. Relevantly, they included a timetable for the filing of written submissions on each of the interlocutory applications. As the primary judge observed in his reasons for judgment, the respondents and CPM Reviews complied with the court order, but Mr Dahler did not. His Honour acknowledged Ms Keys’s statement that Mr Dahler had only received a copy of the orders on 2 July. But the hearing was not listed for another three weeks. Ms Keys’s only explanation for her conduct was that she was busy. His Honour observed that Ms Keys neither applied for an extension of time to file submissions nor apologised to the court for failing to comply with court orders. He described her conduct as contemptuous of the court’s orders and discourteous to the court, the other parties and CPM Reviews. He said that doubtless everyone else was busy, too, but they managed to file their submissions and on time. He rejected Ms Keys’s contentions that no one was disadvantaged or prejudiced by her failure to file submissions because the applications were straight-forward and simple. He described the contentions as unacceptable from counsel and disrespectful of the court and he said that they did not fulfil counsel’s duty to assist the court.
23 Far from demonstrating error, these criticisms were entirely justified. More relevantly, they did not suggest, let alone prove, that the primary judge approached the determination of the issues on the interlocutory applications with a closed mind.
24 I gather that the reference to s 13 of the FCCA Act (see [17] above) was a reference to subs (2), which requires the jurisdiction of the court to be exercised in open court, unless the Act or another law of the Commonwealth authorises the jurisdiction to be exercised in chambers. Subsection (3), however, provides for the jurisdiction of the court to be exercised by a judge sitting in chambers in a proceeding on an application relating to the conduct of a proceeding. The orders made on 13 June 2014 related to the conduct of the proceeding. While it is not clear what was meant by the assertion that the orders did not comply with s 13, there was no proper basis for any suggestion that the orders could not have been made in chambers.
25 During the course of oral argument and, despite the basis upon which the application had been brought, Ms Keys contended that, if there was no actual bias, then there was apprehended bias. I would not go so far as to say that a contention to that effect was hopeless. An argument could have been advanced that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the questions in dispute because his pre-existing antipathy towards Ms Keys was so great that he might not listen to anything she said in support of Mr Dahler’s case, no matter how reasonable. His Honour’s criticisms of Ms Keys were strident and he plainly had a poor opinion of her. Whether that would have been sufficient to establish apprehended bias is another matter but it was unnecessary to consider it because no such submission was made. Indeed, Ms Keys did not identify any connection between the primary judge’s criticisms of her conduct in the 2011 judgment and the feared or actual deviation from the course of deciding Mr Dahler’s case on its merits. When pressed to do so, her response was that “[t]here was at least an apprehension” that the primary judge would criticise her professionally in this case as he had done in the previous one because she had appeared on a direct access basis in both cases. That was hardly to the point.
26 In any event, the submission about apprehended bias was only made during the hearing, in response to a question from the bench, apparently as a fall-back position. It was not raised in the draft notice of appeal or in the written submissions. The only argument advanced in the written submissions was that the primary judge erred by applying the test for apprehended bias, rather than actual bias.
27 The second challenge related to the dismissal of the application to add CPM Reviews as a party, it having previously been removed.
28 The application to restore CPM Reviews was originally foreshadowed in the so-called reply, which asserted that “the Applicant now names CPM Reviews Pty Limited as the Third Respondent because they were involved in the contraventions of the [FW Act] … because, in the process of conducting an investigation under the ‘workplace behaviours’ procedures of the Community Services Directorate Enterprise Agreement and producing draft and final reports”, they:
(a) aided, abetted and/or counselled [certain employees of the ACT] in connection with the termination of the Applicant’s employment;
…
(b) were, either directly or indirectly, knowingly concerned in or party to the decision to terminate the Applicant’s employment; and/or
…
(c) conspired with others to effect the termination of the Applicant’s employment.
29 The primary judge dismissed the application, in substance because the claim as formulated had no reasonable prospects of success. His Honour ordered that Mr Dahler pay the costs of this application because it had been made without reasonable cause (FW Act, s 570(2)(a)) and/or because Mr Dahler’s unreasonable act had caused CPM Reviews to incur the costs (FW Act, s 570(2)(b)).
30 In the principal judgment, I concluded that there was no reason to doubt the correctness of the primary judge’s decision on the question of joinder. I would also point out, as I did in the principal judgment, that no draft amended statement of claim was ever submitted for his Honour’s consideration, and that in neither the so-called reply nor in Ms Keys’s oral submissions to the Circuit Court was any employee or agent of CPM Reviews identified or the material facts necessary to support the claim of accessorial liability articulated.
31 I did consider that it was arguable that the primary judge may have erred in making a costs order in favour of CPM Reviews but I did not consider that there was any substantial injustice if leave were refused and his decision was wrong.
32 The third challenge related to the primary judge’s refusal to award Mr Dahler costs in two interlocutory applications. The first was an Application in a Case by which Mr Dahler sought leave to amend his statement of claim to change the respondent’s name from “ACT Government t/as Community Services Directorate” to the ACT Minister for Community Services (“the first application”). The second was an application to this Court for an extension of time for leave to appeal and for leave to appeal from “the failure of [the primary judge] to give judgment in chambers on 17 December 2013” (“the second application”).
33 That challenge was also doomed to fail. Quite apart from Ms Keys’s inability to point to any substantial injustice that might result if leave to appeal were not granted supposing the decision were wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397), there was no merit in it. The first application concerned a dispute about the correct name of the respondent in a proceeding against an employer brought under the FW Act. Mr Dahler relied on s 570(2)(b) of the FW Act, arguing that the ACT’s refusal to agree to his proposal was an unreasonable act. Yet, the order that was sought in his interlocutory application of 2 December 2013 was not the order that Mr Dahler had asked the ACT to agree to. As for the second application, Foster J correctly described it as “utterly misconceived” (Dahler v ACT Government t/as Community Services Directorate [2014] FCA 210 at [4]). The application to the Circuit Court for the costs relating to it was equally misconceived. Not only was the application unsuccessful, but Foster J had already made a costs order. He ordered that the costs of the application be costs in the cause in the proceeding in the Circuit Court. Mr Dahler is only entitled to the costs of that application if he is ultimately successful and, only then, if he can bring the respondents’ conduct within the terms of s 570(2) of the FW Act.
34 In relation to the challenge to the decision to strike out Mr Dahler’s pleadings, I concluded that there was no prospect of Mr Dahler establishing appealable error and that, in any case, as the primary judge had granted him leave to re-plead, there could be no substantial injustice to him if leave were refused. The submissions made on Mr Dahler’s behalf on the application for leave to appeal did not address this latter question. Yet, it was fatal to the success of this part of his leave application. In the submissions on costs, Ms Keys referred to the observation of Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 (“Kanan”) that one way of testing whether a proceeding was instituted without reasonable cause is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. Rather than proceeding to consider the facts as they were at that time, however, Ms Keys made the breathtaking submission that “the findings of this Court were obviously not available to [Mr Dahler] at the time of filing of his [leave application]”.
35 It follows that I am satisfied that the application for leave to appeal was brought without reasonable cause. The Court therefore has power to make a costs order in this case. There is no apparent discretionary reason not to do so. As Wilcox J put it in Kanan at 265:
It is not a matter of the applicant's motives but, rather, that he has put the respondent to the expense of resisting a claim which was always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding.
36 I was, however, troubled by the notion that Mr Dahler, who is unemployed, should have to pay the costs when the application could arguably be viewed as a misguided attempt to rehabilitate Ms Keys’s reputation and when it was her poor judgment which caused those costs to be incurred. For this reason I invited Ms Keys to show cause why she should not pay the respondents’ costs personally.
37 On 22 September 2014 Ms Keys responded with further submissions and an affidavit from Mr Dahler sworn the same day. The stated justification for the affidavit was that “there were facts that were available to him when he instituted the Application for Leave to Appeal, but which were not included in his affidavit filed in support of the Application for Leave to Appeal or the Application Book”. No application was made to the Court for leave to file an affidavit and it is unclear whether the respondents or CPM Reviews was served with the affidavit or informed that it would be filed. Upon a copy of the affidavit being forwarded from my chambers to the ACT Government Solicitor which acts for the respondents, I was informed that the respondents objected to the Court considering the affidavit. Despite the objection, I have decided to allow Ms Keys to rely on it. The difficulty for Ms Keys, however, is that it takes the matter no further. Its contents are irrelevant. It addresses the basis upon which each of the interlocutory applications was made in the court below. But the question is not whether those applications were brought vexatiously or without reasonable cause; it is whether the application for leave to appeal from the Circuit Court’s orders dismissing them was brought vexatiously or without reasonable cause. The affidavit says nothing about the leave application. More particularly, it does not address the question as to why Ms Keys should not pay the respondents’ costs.
38 The submissions largely sought to explain the tactical decisions made in the Circuit Court. They were to the following effect:
Rule 40.07 of the Federal Court Rules does not apply in this case so as to allow for an order that Ms Keys personally pay the respondents’ costs.
But for the rejection of his application to reinstate CPM Reviews as a party, Mr Dahler would not have sought leave to appeal.
Mr Dahler “proceeded to rejoin CPM Reviews by way of Reply”:
(a) based on a comment from the primary judge that “you can just join them again later”. For this reason Mr Dahler regarded the re-joinder of CPM Reviews “as a matter of course, or at least a process that would not raise objections”.
(b) because the primary judge did not provide written reasons for discharging CPM Reviews on 21 October 2013 and Mr Dahler therefore decided to consider the respondents’ defence before applying to re-join CPM Reviews;
(c) matters of evidence were included in the statement of claim in part because CPM Reviews tendered its investigation report on 21 October 2013 and relied upon the report to withdraw from the proceeding but without referring to any specific aspect of the report.
Matters of evidence were also included in the statement of claim because of an initial agreement with the respondents for Mr Dahler to file a “Statement of Claim/further evidence” and because the respondents required the statement of claim to be filed before mediation.
Leave to appeal was sought in relation to the other matters because they were all decided at the same time and were related to the application to re-join CPM Reviews. This contention was followed by these submissions:
(a) The Respondent's Application to strike out various paragraphs of the Statement of Claim was made on 18 March 2014. The Applicant sought particulars of this application on 21 March 2014, but the Respondent did not reply. Then, there is no explanation why the Court delayed this hearing of this Application until 21 July 2014, and then at the same time as other two other Applications in a Case. But this caused significant disadvantage to the Applicant in the preparation of his case for hearing, including, for instance, that the decision to dismiss the Application to re-join CPM Reviews was made on the basis of pleading that were struck out
(b) The Application is a Case seeking costs against the Respondents was filed on 14 March 2014. No explanation has been given why the Court delayed the hearing of this matter until 21 July 2014. If the Application was delayed for this length of time, there was no reason why it should not have been deferred another few months until after the substantive hearing.
(c) The Application for recusal was only made on 21 July 2014 because this was the first opportunity after the Applicant was notified that the matter had been listed for 2 days hearing from 10 September 2014 (which appears to have occurred on the basis that CPM Reviews would not be a party).
Although the recusal application was not material to the final hearing (the Applicant was advised on 21 July 2014 that the hearing had been listed before another Judge), it became relevant in the context of the Application for Leave to Appeal due to the “gratuitous” criticisms of counsel actually made in the reasons for judgment on 31 July 2014 in connection with the other matters being decided.
39 To the extent that they are intelligible, none of these submissions is to the point. To the extent that they contain factual assertions, for the most part those factual assertions are not supported by evidence. In particular, Mr Dahler does not say in his affidavit that he would not have sought leave to appeal if his application to re-join CPM Reviews had not been dismissed.
40 The decision to “rejoin CPM Reviews by way of Reply” was not, in truth, Mr Dahler’s decision. Although he would have had to have given instructions for the reply to be filed, he was entirely dependent on Ms Keys for advice as to its contents. The decision about what it should include was Ms Keys’s decision and it was one, which (for the reasons given in the principal judgment) no competent counsel would have made. The same can be said of the decision to include evidence in the statement of claim.
41 As for the proposition that leave to appeal was sought in relation to the other matters because they were all decided at the same time, this is no proper justification for propounding an application for leave to appeal that had no reasonable prospect of success, whether because there was insufficient doubt about the correctness of the decision below or because no substantial injustice would result if leave were refused and the decision were wrong.
42 Rule 40.07 of the Federal Court Rules is in the following terms:
40.07 Liability of lawyer to their client for misconduct
(1) A party who has reasonable cause to believe that additional costs have been incurred because of the party’s lawyer’s misconduct, may apply to the Court for an order:
(a) that the whole or part of the costs as between the lawyer and the party be disallowed; or
(b) if the lawyer is a barrister—that the whole or part of the costs as between the barrister and the barrister’s instructing lawyer be disallowed; or
(c) that the lawyer pay to the party costs that the party has been ordered to pay to another party; or
(d) that the lawyer indemnify any other party against any costs payable by that party.
(2) For this rule, a lawyer has engaged in misconduct if:
(a) a proceeding or an application is delayed, adjourned or abandoned because of the lawyer’s failure:
(i) to attend or make arrangements for a proper representative to attend a hearing; or
(ii) to file a relevant document; or
(iii) to provide the Court or another party with a relevant document; or
(iv) to be prepared for a hearing; or
(v) to comply with these rules or an order of the Court; or
(b) the lawyer:
(i) incurs costs improperly or without reasonable cause; or
(ii) incurs costs that are unnecessary or wasteful; or
(iii) is guilty of undue delay.
Note 1: Lawyer is defined in the Dictionary.
Note 2: For the duty of a party’s lawyer to assist the party to conduct proceedings in accordance with the overarching purpose of the Act, see section 37N(2) of the Act.
Note 3: For the power of the Court to order a lawyer to pay costs if the lawyer fails to comply with the duty under section 37N(2) of the Act, see section 37N(4) of the Act.
(Original emphasis.)
43 “Lawyer” is defined in such a way as to include a barrister: see Federal Court Rules, sch 1; FCA Act, s 4.
44 Ms Keys submitted that the rule would only apply if:
(a) Mr Dahler had reasonable cause to believe that additional costs had been incurred because of her misconduct;
(b) Mr Dahler had applied to the Court for an order that she pay the costs he had been ordered to pay the respondents; and
(c) the misconduct arose because she incurred costs without reasonable cause.
45 She continued:
However, [Mr Dahler] has made no such application, and [Mr Dahler] does not have reasonable cause to believe that costs have been incurred because of [her] misconduct as defined in sub-rule (2)(b), that is, consistent with section 570 of the Fair Work Act 2009 (Cth), because [she] incurred costs “without reasonable cause”.
46 In support of the latter proposition, Ms Keys relied on her earlier submissions on costs. For the reasons given above, however, I am satisfied that the costs of the application were incurred without reasonable cause and that Ms Keys should pay them.
47 “Incurs” is not defined in the Federal Court Rules or the FCA Act. Accordingly, it should bear its ordinary English meaning. “Incur” is defined in the Oxford English Dictionary to include “cause to be incurred; bring (something) on someone, entail”.
48 It was Ms Keys’s poor judgment which caused the parties to incur the costs of the leave application. I am satisfied that she caused those costs to be incurred without reasonable cause. It follows that, for the purposes of r 40.07, Ms Keys engaged in misconduct.
49 While it is true that Mr Dahler made no application for an order under r 40.07, r 1.40 of the Federal Court Rules provides that the Court may exercise any power mentioned in the Rules on its own initiative. Moreover, r 1.32 enables the Court to make any order it considers appropriate in the interests of justice. It is therefore plain that the Court has the power to order that a lawyer pay costs a party would otherwise be liable to pay. In my opinion, there is no good reason why it should not be exercised in this case.
Conclusion
50 I am satisfied that the application for leave to appeal was brought without reasonable cause. I order that the costs that Mr Dahler would be liable to pay the respondents be paid by his counsel, Ms Keys.
|
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
