FEDERAL COURT OF AUSTRALIA

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

ORDERS

THE COURT ORDERS THAT:

1.    The appeal against the order of 29 February 2016 by which the appellant’s application to the Federal Circuit Court of Australia (court below) was dismissed be dismissed.

2.    The appellant’s application filed on 14 March 2017 in relation to the order for costs made by the court below on 2 March 2017 in favour of the respondent (costs order) be deemed to be an application for leave to appeal against that order and for any resultant appeal to be heard and determined instanter.

3.    The appellant be granted leave to appeal against the costs order.

4.    The appeal against the costs orders be allowed, that order be set aside and, in lieu thereof it be ordered that the respondent’s application for costs in the court below be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

The Appeal against the dismissal of the adverse action claim

1    Skycity Adelaide Pty Ltd (Skycity) is the operator of a casino in Adelaide. Until August 2014, one of its employees was Ms Jennifer Celand. Her final position at the casino was as a full-time supervisor of table games (roulette, black jack and baccarat).

2    Before the Federal Circuit Court, it was controversial as to whether Ms Celand’s employment with Skycity ceased because, constructively, she was dismissed or whether she just chose to cease that employment. That was one of the issues which arose for determination in that court in a proceeding which Ms Celand instituted against Skycity in which she alleged that she had been subject to “adverse action” by it in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) (FWA). In the result, after a 5-day trial, that court concluded that Ms Celand had not been dismissed, constructively or otherwise, but rather that she had just chosen to cease her employment. The court further concluded that she had not been subject to adverse action as alleged: Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 (Brown FCJ) (principal judgment). Her application was therefore dismissed.

3    Ms Celand has appealed against the order dismissing her application. Her grounds of appeal underwent considerable revision after the initial filing of her notice of appeal. As they came to be amended, her grounds of appeal were:

1.    The learned trial judge erred in failing to find that the Appellant was the subject of adverse action contrary to s. 342 of the Fair Work Act by reason of the Respondent:

1.1    Discriminating between other employees and the Appellant (the promotion issue);

1.2    Altering the Appellant’s position to her prejudice or threatening or organizing to so do (s. 342(2)) (the promotion issue, the Misfud issue, the sexual harassment witness issue, the Training Session issue, the overtime issue) by rendering her continued employment or alternatively advancement in her employment tenuous;

1.3    Injuring the Appellant in her employment by denying her overtime (or threatening or organizing to so do); and

1.4    Constructively dismissing her (the overtime issue).

2.    Inter alia, the learned trial judge failed in the manner indicated in appeal ground 1 by failing to give effect to the provisions of s. 361 of the Fair Work Act.

3.    The finding that the Appellant was not the subject of adverse action was against the evidence and the weight of the evidence.

4.    The learned trial judge by reason of the error indicated in ground 1 failed to find that the adverse action constituted repudiatory conduct by the Respondent.

5.    The learned trial judge should have found that the effect of acceptance by the Appellant of such repudiatory conduct was to bring the contract to an end [82], [365].

4    An understanding of these grounds of appeal, as well as their disposition, requires that the several bases upon which, in the court below, Ms Celand came to particularise how she alleged that she had been subject to adverse action be summarised. This requirement is met by the following, which draws upon an accurate summary offered by the primary judge (principal judgment at [11]).

5    In January 2008, Ms Celand was elected as the union delegate for Skycity’s table games department. In 2012, she was elected to the position of work health and safety representative for table games. In 2009/2010 serious allegations of sexual harassment and worse arose at the casino concerning female staff members. These complaints were investigated by the casino’s management. Ms Celand was requested to be a support person when female complainants were interviewed by Skycity’s management staff. One of these complainants commenced related proceedings in this Court’s South Australian District Registry. Ms Celand prepared an affidavit in support of the complainant’s case in those proceedings. She was subpoenaed to give evidence. In the result, a compromise was reached between the parties to those proceedings. It is this particular involvement which allegedly gave rise to what is termed in the notice of appeal, “the sexual harassment witness issue”.

6    Ms Celand alleged that, in December of 2010, she was passed over for promotion because of her union associations and because she was perceived to be a “trouble maker” as a consequence of her earlier involvement in the sexual harassment claims. This is what is termed in the notice of appeal the “promotion issue”.

7    Ms Celand also alleged that she was harassed whilst performing her role as a work health & safety representative, when she sought advice from Safe Work SA regarding an incident of workplace bullying, which arose at Skycity. That incident became the subject, so she alleged, of a complaint to her by another Skycity employee, Mr Misfud, in her capacity as work health & safety representative. The alleged harassment of Ms Celand is said to have been a sequel to the actions which she took following up that complaint. This is what is termed in the notice of appeal “the Misfud issue”.

8    In January 2014, Ms Celand attended an off-site staff training session organised by Skycity for its customer service employees. Ms Celand was one such employee. This session was presented by an external consultant. Following this session, Mr Capurso, Skycity’s table games shift manager, met with Ms Celand to provide “feedback” about the training session. Ms Celand alleged that at this meeting she was unfairly disciplined for alleged offensive behaviour, during the training session in question. This forms the basis of what is termed in the notice of appeal the “Training Session issue”.

9    Ms Celand also alleged that she was denied access to her personnel file on 28 January 2014. It was her case that, during, that same month, she was singled out, as a table games employee who was not to be offered overtime in the form of working on rostered days off, which had previously been available to her and on which she relied to make her living. This action arose, so she alleged, because of her union associations; her work health & safety role; and because of her involvement in the claims of sexual harassment against Skycity. Ms Celand’s position was that Skycity’s decision not to allow her this overtime made her continued employment, with the company untenable and, as such, amounted to repudiatory conduct, leading to the constructive termination of her employment. There was a transitory denial, very soon reversed. This incident did not feature as a matter of complaint as the notice of appeal came to be amended and argument presented on her behalf.

10    The reasons of the primary judge reveal a very thorough analysis indeed of the evidence led in respect of each of these issues, as well as the issue as to whether Ms Celand was, constructively, dismissed by Skycity. His Honour did not find Ms Celand to be a dishonest witness, as opposed to one who had come to view particular experiences in the course of her employment in a particular way, which was that Skycity did not wish her to remain as an employee. His Honour made the following observations about her in the concluding paragraphs of his judgment:

375.    I accept that it was Ms Celand’s perception that over a number of years Skycity engaged in conduct which she believed indicated that it no-longer wished her to remain as an employee. But in my view, this was her perception, rather than specific and cumulative examples of repudiation. Ms Celand continued to work at Skycity until such time as she determined that she would not continue there.

…

383.    … over a period of time, Ms Celand became increasingly dissatisfied with her situation and determined to leave her employment, on the best possible terms she could secure. In these circumstances, I do not consider that she has suffered any adverse action, within the sense envisaged by the FWA, as a consequence of the infringement of any workplace right pertaining to her.

11    In reaching these conclusions, the primary judge had the benefit, which in the exercise of appellate jurisdiction I do not, of observing not only Ms Celand but also a number of witnesses called by her and by Skycity. As a general observation, his Honour’s conclusions reveal a reasoned, permissible preference for the accounts of events given by Skycity’s witnesses, including because they were more consistent with contemporaneous documents.

12    This characteristic of the conclusions reached by the primary judge and the nature of the challenge made by Ms Celand to them make it desirable to set out a number of features of an exercise of appellate jurisdiction by this Court, be it in an appeal from the Federal Circuit Court or from a judge sitting in the original jurisdiction of this Court.

13    Provision for such appeals is made by s 24 of the Federal Court of Australia Act 1976 (Cth). This provides for an appeal by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] per Gleeson CJ and Gummow J (Hayne J, at [176] agreeing in this regard) and at [128] per Kirby J. Thus, the review of findings of fact made by the primary judge is governed by the principles stated in Warren v Coombes (1979) 142 CLR 531 (Warren v Coombes). In Warren v Coombes, at 551, Gibbs ACJ, Jacobs and Murphy JJ summarised those principles as follows:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

14    That does not mean that particular factual findings made by a trial judge which have been influenced by an assessment of the relative credibility of witnesses are immune from challenge on an appeal by way of rehearing. Rather, any appellate challenge must demonstrate error of the kind referred to by McHugh J in Fox v Percy (2003) 214 CLR 118 at 139 at [66] (Fox v Percy), citing Brennan, Gaudron & McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. [See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos (1990) 171 CLR 167. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ [SS Hontestroom v SS Sagaporack [1927] AC 37 at 47] or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. [Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57]

15    Though I must make our own mind up about the facts, my task in the exercise of appellate jurisdiction always remains that of correcting error. That does not entail setting the views of the trial judge on the evidence at nought and approaching the case de novo: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [11] to [30] per Allsop J (as the Chief Justice then was), Drummond and Mansfield JJ agreeing.

16    Overall, I was left with the distinct impression that Ms Celand’s submissions paid insufficient heed to these features of an exercise of appellate jurisdiction.

17    I turn then to the particular issues raised by Ms Cleland in the order in which they were advanced in her submissions.

The promotion issue

18    The primary judge found that, although Mr Devine (who was the relevant senior manager at Skycity), had “made some disparaging comments about Ms Celand in order to justify his initial decision to the delegation of Ms Hurcombe, Ms Rosevear and Mr Scarfino”, he soon conceded as a result of that delegation’s visit that Ms Celand should be promoted. His Honour found that she was in fact then promoted. The primary judge found that the change of mind about Ms Celand occurred within it was only occurred within “a matter of hours” and that this “resulted in no injury, of a compensable kind, to which she is entitled” (principal judgment at [156]).

19    The relevant decision-maker, Mr Devine was called by Skycity and cross-examined by Ms Celand’s counsel at trial. The trial judge found (principal judgment at [147] and [148]) that, though he may have perceived her as a troublemaker on balance, he was not persuaded that Mr Devine did “say something about the union and Ms Celand’s associations with it”. His Honour expressly did not disbelieve Mr Devine (ibid).

20    Ms Celand contended that these conclusions were tainted by a failure on the part of Skycity to call a Ms Konanc. It was said that an application of Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) should have resulted in a different conclusion being reached about why there was a denial of promotion. In a case where a contravention of s 346 is alleged, it will often be difficult for an employer to rebut the presumption found in s 361 of the FWA if a relevant decision-maker is not called: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [44] – [45] per French CJ and Crennan J. In circumstances where there is an unexplained failure to call a relevant decision-maker, Jones v Dunkel may well, in conjunction with an assessment of the whole of the evidence, offer a reason why a court would conclude that the presumption has not been rebutted. But there was no error of understanding by the primary judge as to the meaning and effect of s 361 of the FWA. Here, the relevant decision-maker, Mr Devine, was called and his evidence was accepted. Ms Konanc was not, on the evidence, a relevant decision-maker in relation to any promotion of Ms Celand, only the apparent author of a hearsay statement about the reasons of others. In this regard and to adopt the pithy turn of phrase of the primary judge, she was nothing more than another player in “a game of Chinese whispers” (principal judgment at [145]). Ms Celand has not demonstrated that the primary judge’s conclusions in relation to the promotion issue were affected by any error arising from a failure to advert to Jones v Dunkel or of the kind described in the passage from Fox v Percy quoted above.

21    Further, in light of the permissible finding that any failure to promote was resolved within hours and that Ms Celand was in fact promoted, she failed to prove either a compensable injury in her employment (and thus no adverse action within the meaning of s 342(1) Item 1(b) of the FWA) or an alteration of her position to her prejudice (and thus no adverse action for the purposes of s 342(1) Item 1(c) of the FWA).

22    There were also, as Skycity correctly submitted, other deficiencies in Ms Celand’s case in relation to the promotion issue. The primary judge permissibly found that Ms Celand was not a member of an industrial organisation at the time when she alleged that she had suffered adverse action by being denied a promotion (principal judgment at [166]). That being so, the protection found in s 346(a) of the FWA against the taking of adverse action because a person is a member of an industrial association could not in any event have been engaged. The primary judge did not just conclude that there was no causative link. His Honour’s finding that Ms Celand was not at the time a member of meant that there was nothing in s 346(a) to which to link alleged adverse action in any event.

23    Yet further, whatever negative or generally derogatory remark which Mr Devine made about Ms Celand to Ms Rosevear, Ms Hurcombe and Mr Scarfino (principal judgment at [146]), even if it were “union person”, that membership is not to be equated with the holding of a political opinion for the purposes of s 351 of the FWA. That being so, Ms Celand could not establish unlawful discrimination. And here, too, the primary judge’s conclusions in relation to Mr Devine’s intent mean that there was no causative link proved.

The Misfud issue

24    To succeed in respect of this aspect of her claim, Ms Celand had to prove:

(a)    adverse action – materially, the alleged harassment; and

(b)    that her performance of WHS roles constituted a workplace right; and

(c)    a causal link between that alleged harassment and that workplace right.

25    Section 68 of the Work Health & Safety Act 2012 (SA) (WHS Act) sets out the powers and functions of a workplace health and safety representative for a work group. It was uncontroversial that the WHS Act was a “workplace law” for the purposes of s 341(1)(b) of the FWA. Ms Celand was a workplace representative for the purposes of the WHS Act. The primary judge accepted (principal judgment at [191]) that, as such and in the months in question, November and December 2013, she had a workplace right authorising her to engage with Skycity’s management in respect of issues relating to work health and safety.

26    In December 2013, Ms Celand claimed that, as workplace representative, she had made inquiries with SafeWorkSA on behalf of a fellow employee, Mr Misfud. The primary judge accepted that she had made such inquiries and that, in so doing, she was exercising a workplace right. His Honour also found that no one in either Skycity’s human resources staff or in its management was aware at the time that she had undertaken this task (principal judgment at [199]). None of these findings was not challenged in the appeal.

27    Ms Celand claimed, and it was accepted at trial, that, in December 2013, both by email and in conversation, she had raised WHS related concerns with Skycity’s WHS officer, Ms Brooks about what she saw as unhealthy and intimidating behaviours in Skycity’s workplace. These included an assault which Mr Misfud alleged had been committed on him by Mr Devine and what was said to be a later parody of this assault by Mr Devine with a shift manager, Mr Whiting.

28    Generally, the primary judge accepted the evidence given by Ms Brooks as to her dealings with Mr Celand about the concerns which she raised and about Skycity’s response to them. His Honour was entitled to do this, particularly in light of the consistency of her evidence with contemporaneous emails and that she had made contemporaneous notes of a material conversation with Ms Celand (which Ms Celand had not). Part of Skycity’s response was the initiation of a grievance procedure. One part of that procedure entailed Ms Brooks reporting the concerns to a manager, Mr Kluppels who, in turn, proposed to Ms Celand by email on 12 December 2013 that he hold a meeting with her and Mr Whiting and himself, the following day. In that email Mr Kluppels stated that he felt that it was “important to meet with you to discuss these concerns in person.” In the result, Ms Celand chose not to attend that meeting. Unsurprisingly, his Honour found that this failure to attend did not constitute the exercise of a workplace right.

29    A difficulty for Ms Celand in respect of these events was not the absence of a workplace right but a failure to prove that she had suffered any adverse action at all as a result of either the workplace rights which she did exercise – the making of inquiries with Website of SafeWork SA and the raising with Skycity of WHS concerns. The primary judge expressly found that no adverse action had been taken against her by Skycity as a result of her exercising these rights (principal judgment at [239]). His Honour was entitled to make such a finding on the evidence. Further, the primary judge found that Ms Celand had come to perceive, honestly but in error, that she was the target of the grievance process initiated by Skycity. His Honour concluded (principal judgment at [230]), permissibly on the evidence:

230.    The difficulty is that this connection is likely to be apparent only to Ms Celand. There is no evidence to indicate that either Mr Kluppels, Mr Tannock, Ms Brookes or indeed Mr Devine made the same connection. In these circumstances, I accept Ms Brookes’ evidence that the explanation as to why Ms Celand was invited to the meeting, was because she had made a complaint, which protocol dictated should be investigated.

30    In the absence of any proved adverse action, and it was for Ms Celand to prove the same on the balance of probabilities, there was no work to do for the presumption found in s 361 of the FWA.

31    It was put for Ms Celand that adverse action ought to have been found in her “treatment” by Skycity after she had reported her WHS concerns. It was submitted that Skycity had demanded from her particulars of her “complaint” when it had only to view video surveillance footage of the gaming room. This was said to indicate that Mr Devine’s “preparedness to prejudice the Appellant was still alive”. With respect, such a submission is better regarded as a manifestation of Ms Celand’s perception, described by the primary judge at [230] and quoted above. It does not demonstrate “error” on the part of the primary judge.

32    In accepting Ms Brooks’ account of the initial raising of concerns by Ms Celand, which had occurred in the course of a conversation in the Ladies bathroom/change room at Skycity’s premises, the primary judge permissibly accepted, inter alios, that this passage in Ms Brooks’ notes was accurate:

During our conversation in the bathroom I [Ms Brookes] reiterated that for there to be an investigation by HR that HR (Sam or Cam) would need more information and if she is representing staff then either she needed to have a conversation with Sam or Cam or tell the other staff to come forward. I said that even if anyone went to Fairwork or SafeWork SA they would require names to investigate and a lot more information. She’d [Ms Celand] said she knew that because she had contacted them about it and was told she needed to raise it with management. She went to say she couldn’t dob on her friends or speak up because she had mortgages – implying she would lose her job. I told her I understood her concerns but if she wanted the matter resolved and wanted to represent her workmates then she needed to speak up and let us know. I told her my hands were tied if she wasn’t prepared to talk to HR and that there wasn’t anything else I could do.”

[Sic – emphasis added]

In responding to a WHS complaint, Skycity was entitled to seek particularity from a complainant or an informant and that entitlement was not negated by the possibility, or even probability that other sources of information might be available. Ms Celand herself understood this. To seek that information was not to take adverse action.

33    The absence of proved adverse action was fatal to this aspect of Ms Celand’s case.

The Sexual Harassment Witness Issue

34    In November 2011, another Skycity employee, Ms Winra commenced proceedings in the Federal Court, at Adelaide, against the company seeking relief in respect of an alleged contravention of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The basis of the claim was conduct alleged to have occurred at a company Christmas function in 2010. In October 2013, Ms Celand deposed an affidavit which was filed in support of that claim. In December 2013, she was served with a subpoena requiring her to attend a trial of the proceeding in January 2014. In the result, the claim was compromised shortly before the appointed trial date.

35    In her statement of claim, Ms Celand alleged that, undertaking her role as a witness in the Federal Court (via deposing an affidavit and, in prospect, attending under subpoena to give oral evidence) constituted the exercise of a workplace right. That right was said to be found in cl 16.2 of the Skycity Adelaide/United Voice Enterprise Agreement 2011 (enterprise agreement). The primary judge found, correctly (principal judgment at [127]), that the enterprise agreement was a workplace law or workplace instrument, as defined by s 12 and s 341(1) of the FWA. Clause 16.2 of the enterprise agreement was directed to employer/employee communication and consultation in the workplace. It provided:

The Consultative process will comprise the employer and/or its representative and team members and/or their representatives, as considered necessary in any particular issue.

At all material times relating to this issue, Ms Celand was an employee representative for the purposes of this clause.

36    The undertaking of an employee representational role pursuant to this clause was undoubtedly the exercise of a workplace right for the purposes of the FWA. The primary judge found that Ms Celand’s furnishing of an affidavit in the sexual harassment proceeding fell outside the ambit of this clause. That finding is not gainsaid in the appeal by Ms Celand. His Honour additionally found that the Sex Discrimination Act was a law of the Commonwealth which regulated relationships in the workplace, because it rendered discrimination on the basis of sex unlawful and sought to eliminate such discrimination and harassment in the workplace. Accordingly, as to Ms Celand’s role as deponent and prospective attendee in the court proceeding, his Honour proceeded on the basis that, though the pleaded foundation (the enterprise agreement) was not the source of a related workplace right, the nature of that court proceeding meant that the Sex Discrimination was such a source. That finding, unsurprisingly, is also not gainsaid by Ms Celand. And neither is it by Skycity. In these circumstances, it is unnecessary for us to delve into whether the Sex Discrimination Act could indeed be a source of the asserted workplace right. I assume in Ms Celand’s favour that it could be.

37    Ms Celand’s difficulty was, and remains, an absence of proof of any adverse action taken against her because she deposed an affidavit and was to give oral evidence in support of Ms Winra’s case. The two key local managerial witnesses, Mr Devine and Mr Tannock, each gave evidence, which was accepted by the primary judge. The former was ignorant of the fate Ms Winra’s complaint after he had interviewed her concerning it. The latter had some knowledge of this, because he had had the local conduct of the proceedings on behalf of Skycity. But all strategic decisions about those proceedings were made not in Adelaide but by Skycity’s Auckland-based general manager and chief counsel.

38    An absence of any proved adverse action as a result of the exercise of this workplace right was fatal to this aspect of Ms Celand’s claim. Of course, the possibility remained, as it did with each of the claimed exercises of workplace rights, that adverse action may have been a sequel to a composite of exercised rights. Particularly that was a possibility, and I understood it to be one promoted by Ms Celand, because of the relative proximity of her involvement as a deponent and prospective witness in the sex discrimination proceeding and the interview which was a sequel to the “training session issue” (see below). As will be seen, the primary judge was alive to and addressed this possibility but came to reject it.

The training session issue

39    The essence of this issue was an allegation by Ms Celand that, as a sequel to an off-site, staff, group training session, she had been disciplined by Skycity for offensive conduct based on a false complaint made about her on 22 January 2014 in the immediate aftermath of the session.

40    Once again, it fell to Ms Celand to prove both the existence of a workplace right and the taking of adverse action. Absent the proof of either or each of a workplace right and adverse action, there was no work to do for the presumption found in s 361 of the FWA.

41    The mere initiation of an investigative or even disciplinary process does not, in itself, constitute “adverse action” as defined by s 342(1), item 1 of the FWA. The following observation, made by Ryan J in in Police Federation of Australia v Nixon (2008) 168 FCR 340 at 354, [42], (Police Federation of Australia v Nixon), remains pertinent:

Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect [significant detrimental effect on his reputation or standing]. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.

The primary judge found that a Mr Capurso (from whom he heard evidence) had interviewed Ms Celand following the training session. His Honour’s reasons for judgment demonstrate that, correctly he understood that the presence of any disciplinary element in that interview might but need not necessarily constitute the taking of adverse action. His Honour correctly approached the subject on the basis that a conclusion of adverse action depended not just on what transpired at the interview but characterising that in the overall context of circumstances leading up to and after its occurrence.

42    Ms Celand attended the interview with a fellow employee, Mr May as a support person. Ms Celand was not the only training session attendee who was interviewed.

43    The evidence of each of Ms Celand, Mr May and Mr Capurso was that, at the outset of the interview, Mr Capurso stated that it was not of a disciplinary kind. No record of the interview, much less any adverse finding, was placed on Ms Celand’s personnel file. There was no sanction imposed on Ms Celand nor even a threat of the same.

44    That Mr Capurso interviewed Ms Celand at all was, as his Honour found, responsive to a observations made to a senior Skycity manager (human resources), Mr Tannock, by a Ms Alloway (who did not give evidence), an external consultant who had conducted a series of group training sessions for Skycity of which that attended by Ms Celand was one. As the primary judge permissibly found (primary judgment at [261]), that consultant “had been offended by some behaviour, at her training session, which she considered to be negative”. The purpose of the interviews was, as the primary judge permissibly found, to provide feedback about how the external consultant had perceived the behaviours of table members of whom Ms Celand was one at the group training session.

45    Complaint was made by Ms Celand in submissions that Ms Alloway was not called and that the Court could draw its own inference that her evidence could not have helped Skycity. But the proceeding brought by Ms Celand was not an inquiry into exactly what behaviour had occurred at the group training session in question. The relevant Skycity actors were Messrs Tannock and Capurso. They were called and their evidence was, permissibly, accepted by the primary judge. His Honour’s finding (primary judgment at [261]), which reflected the state of the evidence at trial, was that there was, “no evidence whatsoever that Ms Celand’s reputation, in the workforce, was damaged in any way by her interview”. His Honour found (primary judgment at [264]) that, “the only motivation for the meeting, so far as they were concerned, was to provide feedback to Ms Celand about the issues raised by Ms Alloway”. His resultant conclusion that no “adverse action” had been taken against Ms Celand was unremarkable. Ms Celand has failed to demonstrate any “error” in the findings made by the primary judge and thus, necessarily, no error in the conclusion as to the absence of any adverse action. That absence was fatal to this aspect of her claim.

46    The primary judge specifically addressed whether, nonetheless, if viewed against the broad sweep of Ms Celand’s involvement with the progress of Ms Winra’s claim from 2010 to its compromise in January 2014 (and a like complaint made by another employee, Ms Potts) the training session interview ought to be viewed in a different, more sinister context. In the end (primary judgment at [230]), his Honour acted, permissibly, on Ms Brooks’ evidence (also taking into account that of Messrs Devine and Tannock) and concluded that the interview was nothing more than a sequel to a complaint about the behaviours of a number of persons at the training session, of whom Ms Celand was but one. Here, too, Ms Celand has failed to demonstrate any “error” in the conclusion reached by the primary judge.

The Overtime Issue

47    It was uncontroversial, and the primary judge found, that, on 28 January 2014, Ms Celand received a telephone call from a Mr Keith Webster, then a scheduler in Skycity’s in which he informed her that she could no longer be scheduled to work overtime on her rostered days off. What was controversial was whether this absence of any such further overtime constituted adverse action as the result of the exercise of a workplace right (or rights). Ms Celand’s case was that the action was a sequel to her earlier exercise of the various workplace rights which she had alleged, in effect a retaliatory response by Skycity.

48    It is tolerably clear, on the evidence of both Ms Celand and Mr Tannock, and a consequential internal Skycity email sent by Mr Tannock to Mr Whiting on 24 January 2014, that the telephone call of 28 January 2014 had its origin in a random encounter between Ms Celand and Mr Tannock in a lift at Skycity on the morning of 23 January 2014. In the course of a casual conversation between the two, it came to Mr Tannock’s attention that Ms Celand was about to commence a shift which would be the 12th working day of 17 in a row for her.

49    The primary judge accepted Mr Tannock’s evidence that the conversation occasioned him great concern about the shift rostering practice then being adopted at Skycity, because of his view that it was not compliant with the enterprise agreement and because it presented unacceptable occupational health and safety risks.

50    The primary judge analysed in detail Part 5 of the enterprise agreement, particularly cl 33.1 and cl 33.2, in relation to the provision made for shift rosters, maximum permissible hours in a four week working cycle, overtime and maximum permissible consecutive working days. The accuracy of that analysis is not challenged by Ms Celand in the appeal. It is not necessary for us again to rehearse it. Notably, the enterprise agreement (cl 33.2.7) provided, “A maximum of ten (10) consecutive days may be worked in any 14 day cycle.” It also provided that overtime was only to be paid when the employee concerned had worked in excess of 152 hours, over a four week cycle.

51    The point is that, having regard to the effect of the enterprise agreement, there is ample foundation for the great concern which Mr Tannock stated was occasioned for him by the casual conversation which he had with Ms Celand on 23 January 2014. The voicing of this concern by him by email the following day and his direction for the position to be investigated were obviously reactive to the conversation the previous day but in no way focussed upon Ms Celand alone, as opposed to a practice which had developed in relation to a class of persons of which she was but one. There is no reason to think that this contemporaneous email was a charade and every reason, having regard to the whole of the evidence of events from the initial conversation on 23 January to the later notification on 28 January, to think that it was not. Indeed, against the broad background of the applicable terms of the enterprise agreement and contemporary emails, it would at least have been reasonably arguable that the primary judge had misused his advantage of having seen Mr Tannock in the witness box and committed an error of the kind described in the passage from Fox v Percy quoted above had his Honour done anything other than accept Mr Tannock’s evidence on this point.

52    The person tasked with conducting the investigation directed by Mr Tannock was Mr Capurso, he gave evidence which was, permissibly, accepted by the primary judge. It corroborated that of Mr Tannock. Once again, that evidence was supported by contemporary emails. His evidence was that it was not his intention that the direction about the cessation of the practice of rostering contrary to the enterprise agreement and the related overtime payments apply only to Ms Celand. As it happened, that intention and that direction were, initially, incorrectly conveyed to Ms Celand by subordinates, Ms Small and Mr Webster. But each of these was a mere functionary. There is no Jones v Dunkel point arising from their absence from the witness box. The relevant managerial actors were Messrs Tannock and Mr Capurso and, later, Mr Devine. Each of them gave evidence, which was permissibly accepted by the primary judge. It was Mr Devine who (as did another manager, Mr Whiting) sent an email on the afternoon of 28 January 2014 to Skycity’s scheduled table games department, requesting that schedulers ensure that no staff member was rostered more than 10 consecutive shifts in any 14 day cycle, regardless of whether that staff member had volunteered for extra shifts. This email, too, was corroborative of the accounts given not just by him but also by Messrs Tannock and Capurso as to the managerial action taken in response to what Mr Tannock had randomly and informally discovered in the course of his conversation with Ms Celand on 23 January 2014.

53    The primary judge concluded that there was no right to work overtime created by the enterprise agreement and, hence, no workplace right. I agree. In any event, there was certainly no right to work overtime in contravention of the enterprise agreement. There was no alteration by Skycity of Ms Celand’s or any other employee’s terms of employment, only a direction designed to ensure that the terms of that employment as prescribed by the enterprise agreement were adhered to. That overtime comprised, as Ms Celand submitted, a substantial percentage of her income (15% to 20%) may be accepted but that looks to have been the result of her and others benefiting from a practice which was not authorised by the enterprise agreement. And the consent of employees did not absolve Skycity from its obligation to roster in accordance with the enterprise agreement. In theory, and in relation to overtime, the rostering of a particular employee willing to work that overtime in a way which reduced or eliminated for that employee overtime otherwise being offered to other employees as a matter of routine practice might amount to discrimination against that employee. But that is not what occurred here. The directive about the cessation of the practice was generic. The primary judge was correct to conclude that none of the items in the definition of adverse action in s 342 of the FWA was engaged in relation to the overtime issue. That in itself was enough to cause this aspect of Ms Celand’s claim to fail. But even apart from that, the acceptance of the evidence of Messrs Tannock, Capurso and Devine by the primary judge was consistent only with a conclusion that whatever adverse action arose from the overtime issue, none was the result of any exercise of any workplace right by Ms Celand. Again, Ms Celand has failed to demonstrate any “error” in the acceptance of the evidence of these witnesses by the primary judge.

Constructive dismissal?

54    There was a sequel to the notification of the reduction of overtime to Ms Celand. At her request, Mr Tannock met with her on 4 February 2014. Ms Celand brought with her Ms Rosevear to the meeting as a support person. Mr Whiting of Skycity’s HR staff was also present. Mr Whiting took contemporaneous notes of the meeting, as did Ms Celand and Ms Rosevear. As the primary judge noted, Mr Whiting’s are the more concise. His Honour regarded each as an accurate record but observed (principal judgment at [317]) that the greater length of the notes of Ms Celand and Ms Rosevear were argumentative and contained her perceptive of the generally unsatisfactory nature of the meeting. Such a conclusion was reasonably open.

55    Ms Celand aired many grievances at this meeting. The primary judge found, permissibly on the evidence that, towards the end of the meeting she stated that she had been prevented from working overtime. Mr Tanncok’s response was, “... it’s just a concern of maximum number of days, nothing more, no request to cancel overtime that I am aware of. This is purely a contractual and OHS issue.” That response was entirely consistent with Mr Tannock’s actions as a sequel to the conversation which he had had with Ms Celand on 23 January 2014. No “error” has been demonstrated by Ms Celand in the reaching of that same conclusion by the primary judge (primary judgment at [332]).

56    As a sequel to that meeting, Mr Tannock wrote to Ms Celand. Apart from providing, under cover of the letter, a number of documents requested by Ms Celand at the meeting, he advised that, having given some consideration as to how the matters, raised by her could be resolved, he proposed this could be done either by mediation or by an independent investigation. In the result, Skycity chose to commission an investigator, a Ms Horning, who had some thirteen years previous experience as a health and safety inspector with SafeWork SA.

57    Ms Horning completed her report in mid-June 2014. She did not find any of Ms Celand’s grievances to be made out. This displeased Ms Celand, who regarded Ms Horning as biased and lacking in investigative ability with the findings being without evidentiary foundation. Mr Tannock, on the other hand, considered that Ms Horning was, given the nature of the complaints made by Ms Celand, appropriately qualified and experienced. Correctly, the primary judge eschewed (principal judgment at [344]) any suggestion that it was the Court’s function to “evaluate the efficacy or otherwise of Ms Horning’s methodology”, as opposed to evaluating “whether Ms Horning’s report and/or Skycity’s response to it constitute adverse action in response to a workplace right pertaining to Ms Celand”. In the result and, with respect, unsurprisingly, his Honour concluded that the decision to commission the investigation was not adverse action, merely because Ms Celand disagrees with Ms Horning’s subsequent conclusions. Here, too, the observations of Ryan J in Police Federation of Australia v Nixon, quoted above, are pertinent.

58    Mr Tannock subsequently proposed to Ms Celand that mediation occur. His Honour found that this proposal was sincere (principal judgment at [352]). He was entitled to make this finding. As it happened, Ms Celand did not take up that proposal. Instead, manifested by her solicitor’s letter of 8 August 2014, she took the view that she had been constructively dismissed by Skycity. As the primary judge observed “No specific connection is made between the contents of Ms Horning’s report and the assertion that Ms Celand believes that she has been constructively dismissed” (principal judgment at [362]). Rather, the constructive dismissal was said to be found in the communication by Mr Webster to her and the email from Ms Small in January 2014 of the cessation of the overtime practice.

59    Mr Tannock responded to Ms Celand by a letter of 11 August 2014 which was, as the primary judge aptly commented “conciliatory in tone” (primary judgment at [364]). In the result, Ms Celand never returned to duty at Skycity. Instead she chose to prosecute the proceedings in the Federal Court the order for the dismissal of which is the subject of the present appeal.

60    Based on his findings, the primary judge concluded that there had been no repudiation of Ms Celand’s contract of employment by Skycity; that she had not been constructively dismissed. Instead, his conclusion (principal judgment at [369]) was that:

369.    … Ms Celand had determined that she would not return to her position at the Casino. That was her personal election. Her preference was to resign on terms favourable to her. I accept that she was aggrieved at how she perceived she had been treated, following the completion of Ms Horning’s report and the failure of Mr Tannock to accept her criticisms of it.

His Honour found (principal judgment at [383]) that:

[Over] a period of time, Ms Celand became increasingly dissatisfied with her situation and determined to leave her employment, on the best possible terms she could secure. In these circumstances, I do not consider that she has suffered any adverse action, within the sense envisaged by the FWA, as a consequence of the infringement of any workplace right pertaining to her.

Each of these conclusions was open on the evidence. Ms Celand has not demonstrated that they were the result of any “error” by the primary judge in the findings of fact which he made on the evidence.

61    Australian pronouncements prior to 2014 on the subject of constructive dismissal such as Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 and Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 must now be approached with a degree of caution to the extent that they explain the contractual foundation for concluding that there has been an unlawful termination on the basis that there is to be implied into the contract of employment a term that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. That understanding was influenced by English authorities, which reached their zenith for the acceptance of that proposition in the House of Lord in Malik v Bank of Credit and Commerce International SA (In Compulsory Liquidation) [1998] AC 20 (Malik). In Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, the High Court held, to the contrary of Malik, that no such term was implied by law into a contract of employment (or any other for that matter). Even so, I accept that, within the confines of that statutory cause of action found in the FWA, a conclusion of “adverse action” as defined by s 342 of the FWA, constituted by a dismissal, an injury or an alternation of an employee’s position to the prejudice of an employee, is not precluded by a finding that the employee resigned or, even abandoned his or her employment. I accept that, what was in form a resignation might, on particular facts and for the purposes of s 342, be found in substance to have been a dismissal.

62    The primary judge approached this subject to no different end by reference to whether Skycity’s conduct might, objectively, be regarded as repudiatory of the contract of employment (principal judgment at [372] to [374]).

63    On the findings of fact which he made, which have not been shown to be affected by “error”, there was no such conduct by Skycity. There is much wisdom in the adage, “All seems jaundiced to a jaundiced eye”. Removed as both the primary judge and I, from the intimacy of experience of particular events, the objective conclusion, well-supported by contemporaneous correspondence, is that there was no adverse action taken by Skycity against Ms Celand. Further, such actions as it did take were not the result of her exercising any workplace right. That is so whether one views those actions individually or cumulatively from 2010 until August 2014. Ms Celand’s position was not made untenable by Skycity, only, as the primary judge permissibly found, by her perception. I do not doubt that the loss of overtime payments had a detrimental impact upon Ms Celand and may well, in her mind, have been “the straw that broke the camel’s back”. But an employer taking steps to bring its employment practices into conformity with its obligations under an enterprise agreement is not to be classified as adverse action.

64    It necessarily follows that the appeal against the order of dismissal must be dismissed.

Costs Below

65    In the court below, Skycity made an application for costs as a sequel to the dismissal of Ms Celand’s claim. That application was heard in September 2016. Regrettably, it remained undetermined at the time when Ms Celand’s appeal against the order of dismissal was heard by this Court and judgment reserved. That meant that the fate of the costs controversy which emerged was not able to be the subject of submissions at the time when the substantive appeal was heard by the Full Court to which that appeal had been allocated. It is to be hoped that this will be an infrequent occurrence. Where an appeal has been listed and there is an extant original jurisdiction costs controversy, the fact of that listing needs to be drawn to the attention of the court below by the parties. Every endeavour should then be made for the judgment resolving, in the court below, that costs controversy to be delivered before the date appointed for the hearing of the appeal. As it was, provision had to be made, after the reservation of the judgment on the appeal, for an exchange of written submissions. Sometimes, such provision may not be sufficient, resulting in a need to reassemble the Full Court for oral argument with all of the disruption that can occasion to the orderly management of appellate jurisdiction and other duties.

66    In respect of the costs application, judgment was not delivered until 2 March 2017: Skycity Adelaide Pty Ltd v Celand [2017] FCCA 196 (costs judgment). Ms Celand was ordered to pay Skycity’s costs, fixed in the amount of $30,711.00. The operation of that order was stayed, pending the determination of the already extant appeal. The primary judge delivered elaborate reasons for the making of these orders.

67    In our view, the costs order is interlocutory, not final in character. That is because it is not an order which finally disposes of the substantive rights of the parties: Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 153. That has the consequence that leave to appeal is required: s 24(1A), Federal Court of Australia Act 1976 (Cth). The application made by Ms Celand was not for leave to appeal but rather for leave under r 36.10 of the Federal Court Rules 2011 (Cth) to amend the notice of appeal. That was not apt for a case where leave to appeal was required. Skycity approached the interlocutory application on the basis that it should be treated as an application for leave to appeal with any resultant appeal being heard and determined instanter on the basis of the submissions already made. That was a commendably fair approach, which accords with how, in the interests of justice, I consider I should deal with that application. It was made within the 14 day period within which an application for leave to appeal must be filed, so no question of an extension of time additionally arises.

68    In the context of whether to grant leave to appeal against a costs order, the Full Court observed in Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112 at [113]:

There is no doubt that appellate courts are loathe to overturn discretionary costs orders made by single judges. This reluctance reflects a history of caution expressed by appellate courts when asked to overturn discretionary judgments generally.

69    The use of “loathe” and “caution” in the passage quoted is but a way of emphasising that a discretionary value judgment is not to be overturned on appeal merely because those exercising the appellate jurisdiction might, if called to make that value judgment in the original jurisdiction, have reached a different decision. Instead, what must be demonstrated is an error of the kind summarised in House v The King (1936) 55 CLR 499 at 505 (House v The King). It was common ground between the parties that such an error needed to be demonstrated.

70    It is not just House v The King which is pertinent. In a case such as the present, the costs discretion was not at large. The power to award costs was governed by s 570 of the FWA, which 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.

71    Both the primary judge and, in their submissions to us, the parties, took as their starting point the explanation as to the meaning and effect of s 570 of the FWA offered by the Full Court in Australian Workers Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428 at [7] (Australian Workers Union v Leighton Contractors (No 2)) :

In our view the authorities establish the following principles:

(1)    The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause.

(2)    It follows from the protection offered by s 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Spotless Services Australia Ltd v Senior Deputy President Jeanette Marsh [2004] FCAFC 155 (Spotless) at [12]–[13] (to the extent that the Full Court in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (Kangan) held otherwise, we would respectfully disagree).

(3)    The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J; Kangan at [60]. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-5 (approved in Kangan) Wilcox J said:

If success depends on the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding, as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.

Obviously enough, the focus of the third of these observations is on s 570(2)(a) of the FWA.

72    In substance, s 570 of the FWA provides for like restrictions on the power to award costs to those found in its predecessor, s 824 of the now repealed Workplace Relations Act 1996 (Cth). Of that predecessor provision, the Full Court observed in Construction, Forestry, Mining and Energy Union and Others v Clark (2008) 170 FCR 574 at [29]:

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 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.

73    Referring to those observations, Bromberg J, in Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6], remarked of that provision that, “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.”

74    Any exposition in respect of the meaning and effect of a statutory provision can be fraught with the possibility, unintended though it may be, of placing a gloss on the language employed by Parliament. So I respectfully agree with the statement made by the Full Court in Australian Workers Union v Leighton Contractors (No 2) that it is not necessary to establish “exceptional circumstances” in order to award costs in a matter arising under the FWA. What it is necessary to do is to engender satisfaction that a pre-condition for the enlivening of the costs power exists and, even then, the exercise of a judicial discretion is required; there is no as of right entitlement to costs. Each of the pre-conditions for which s 570 of the FWA provides entails the reaching of satisfaction as to a pejorative. Materially in this case, that is satisfaction as to an unreasonable act by Ms Celand causing another party, Skycity to incur costs. As to its proof, satisfaction of this type is but a species in a class to which s 140(2) of the Evidence Act 1995 (Cth) has application. And what must be engendered is not just satisfaction as to an unreasonable act but also that it had a causative sequel. As a norm in our public and private law, unreasonableness in act or decision is not confined to the bizarre or irrational but entails rather more than a supervisor of that act or decision substituting his own view for that of the actor or decision-maker: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [65] to [73] per Hayne, Kiefel and Bell JJ.

75    Elaborate though the reasons of the primary judge are, I do not, with respect, see any displayed understanding as to what is entailed in a conclusion of unreasonableness of action but rather an expression of his Honour’s own view as to what ought to have been the sequel to an offer of compromise put to Ms Celand’s solicitors by those acting for Skycity. That is encapsulated in the following paragraph of his Honour’s reasons for judgment in respect of the costs issue:

112.    I also appreciate that there are dangers in assessing such offers with the benefit of hindsight. However, in my view, the prescience of Mr Holland’s letter is a significant factor, when contrasted with Ms Celand’s silence in respect of it. I am satisfied that Ms Celand’s implied rejection of the offer in question does amount to an unreasonable act or omission on her part. To conclude otherwise would reduce the import of the Calderbank offer, made by Skycity, to nought.

76    The letter in question was authored dated 20 April 2015. It was authored by Mr Holland of Skycity’s solicitors. It was expressed to be written without prejudice save as to costs, obviously enough with Calderbank v Calderbank [1975] 3 All ER 333 in mind.

77    The primary judge accurately summarised (costs judgment at [56]) the features of what was put to Ms Celand by this letter as follows:

56.    The letter asserted that Ms Celand would have great difficulty in establishing the following elements of her case:

she had any statutorily based workplace right to be a support person or to give evidence in proceedings;

•    Skycity had taken adverse action against her because:

➢     she had in fact been promoted;

➢    she had not suffered any adverse consequences as a result of being a health and safety inspector;

➢    she had in fact been given access to her personnel file;

➢    she had not been excluded from overtime unlawfully, rather management had properly determined that for Ms Celand to work overtime would constitute a breach of its obligations under the relevant workplace agreement;

It was asserted in the letter that Skycity had documented evidence to support its assertion that Ms Celand had resigned from her employment rather than been dismissed. On what was said to be a purely “commercial basis” Ms Celand was offered $2,500 in respect of damages and $4,500 in respect of costs, in all $7,000. The time for acceptance was fixed as 14 days.

78    At the time when the letter was sent and received, Ms Celand had filed and served her evidence in chief (which consisted of her affidavit evidence alone) and Skycity had filed and served what proved to be the whole of its evidence in chief. Ms Celand had yet to communicate to Skycity her decision to call, under subpoena, Ms Rosevear, Mr May and Ms Hurcombe. That decision was notified to Skycity on 15 June 2015.

79    Contrary to the conclusion of the primary judge (costs judgment at [67]), the offer was not made at an early stage of the proceedings. It was made not just after the close of pleadings but only after all of the affidavit evidence in chief had been prepared, filed and served.

80    Ms Celand’s point was and is that the amount of the offer even in total “clearly” would not have covered her costs as at 20 April 2015. In the original jurisdiction, the primary judge (at [69]) observed, “Although, I accept that $7,000.00 cannot be regarded as a significant sum of money, in the light of the ultimate outcome of the case, it cannot be dismissed as being trivial, particularly when weighed against the costs incurred by both parties.” But the focus of that observation is on the ultimate expenditure as to costs, not, as with respect it ought to have been in context, on the likely costs incurred by Ms Celand up to 20 April and making allowance for advice about the offer. Viewed from the correct perspective, the point made by Ms Celand was not hyperbole but inherently likely to be accurate, given the steps which had by then been taken in the proceedings. It was correctly to be classed as a “walk away” offer.

81    To be classed as anything other than this the amount would have had to have been substantially greater. For example, in the circumstances of the present case, an offer of the order perhaps of three and certainly of four or more times the amount made, accompanied by the same reasoning, would have raised very different considerations for Ms Celand about the risks of continued litigation. It is possible to be penny wise and pound foolish with offers of compromise.

82    It was conceded by Skycity before the primary judge that s 570(2)(a) of the FWA was not applicable. That was not, as the primary judge understood it (costs judgment at [52]) a concession that she had not “commenced these proceedings for any vexatious or improper purpose”. That is not the language of s 570(2)(a) of the FWA. Materially, what was entailed was a concession that the proceedings had not been instituted by Ms Celand without reasonable cause. There was always an inherent tension, appreciated neither by the primary judge nor by Skycity in its submissions before his Honour and in respect of leave to appeal between what necessarily followed from this concession (the presence of reasonable cause for the institution of proceedings) and Skycity’s assertion that it was an unreasonable act to allow the offer made by the letter just to lapse. It is to be remembered, too, that Mr Devine, who held an influential managerial position, was apprehended as having referred to Ms Celand as a “trouble maker” and a “union person”. There was a basis for that apprehension even though, as noted above, his Honour came not to be satisfied that he had used such terminology about her.

83    Viewing matters in prospect, and that is the relevant perspective, it is possible to see how, as the events affecting her unfolded in November and December 2013 and January 2014 Ms Celand might, when viewing them against a background of experience of Skycity extending back to 2010 have perceived them to constitute not coincidence but an endeavour to make her continued employment untenable. The analysis put to her by the letter really amounted to an assertion that Skycity’s evidentiary case would be accepted and, if accepted, would demonstrate that she could not in any way at all prove the elements of an adverse action cause of action. As it happened, that proved to be so after the witnesses concerned had been presented for cross-examination and after the primary judge had the benefit of hearing and observing them and then measuring the whole of their evidence against contemporaneous documents.

84    It was submitted for Ms Celand that, at the time the offer was made and ever thereafter Skycity introduced no evidence from either Mr Webster or Ms Small.

85    I have, in disposing of the appeal, expressed agreement with the primary judge that no Jones v Dunkel point arose from any failure to call either such person, because they were functionaries not managerial decision-makers. Contrary to Ms Celand’s submission, the primary judge did take their absence into account when examining the state of the evidence for the purposes of deciding the costs application (costs judgment at [83] to [85]). Nonetheless, in prospect, they were for Ms Celand a personification of Skycity in terms of communicated decisions. The findings of fact which the primary judge was later able comfortably to make about managerial decisions were, again, able to be made after he had heard from the relevant managerial decision-makers.

86    As for Ms Rosevear, Mr May and Ms Hurcombe, his Honour had before him evidence from Ms Mack, given at an interlocutory stage, as to an apprehension Ms Rosevear and Mr May each felt about security of employment as a reason why they had not provided affidavits. With all respect to his Honour, it is not hard to see why, in an adverse action case, other employees might willingly attend and give truthful oral evidence to the best of their recollection and yet be reluctant to give in advance an affidavit. The importance of a job and related income security for a worker is very real for most, as is the disparity in economic power between most individual workers and a large corporation. It is true, as Skycity submits, that none of these persons was a key managerial decision-maker but they did have subordinate managerial roles; they were not just gaming room employees. And, as his Honour did appreciate, it was only after representations from Ms Rosevear and Ms Hurcombe that a key decision-maker Mr Devine, who may well have mentally, though not vocally, categorised Ms Celand as a “union person” and “troublemaker”, came to change his mind and to offer her promotion. That was a noteworthy part of a cumulative picture which Ms Celand was trying to paint, if only to the end of demonstrating that, constructively, she had been dismissed. Their inability to assist in the painting of that picture has a clarity in hindsight which it did not, with respect, necessarily have in prospect. And that clarity emerged after each had given oral evidence and when that evidence was measured against the whole of the other evidence, not as at the time when the offer was made. Further, and this point is well made by Ms Celand, she did not, contrary to the view of the primary judge (costs judgment at [102]), have a “vain hope that “something [would] turn up”” from them. The nature of Ms Celand’s interactions with each of them was apparent from her own affidavit and there was no reason to suspect that any of them would do other than corroborate that (which, as it transpired, each did). She did indeed have an understanding as to what each would say if required.

87    It was also put that the primary judge had proceeded on a misunderstanding with the true fact being a decision in January 2014 that Ms Celand was to have no overtime. That is, as Skycity correctly points out, contrary to the finding which was, permissibly made in the dismissal judgment. More relevantly though for present purposes is that this finding was only made after the trial when all of the evidence was in.

88    Though his Honour nominally eschewed the wisdom of hindsight, in truth what occurred here was that, based on a misunderstanding as to what is entailed in a conclusion of unreasonableness, a failure to appreciate the inherent tension between an implicit concession that there was reasonable cause to institute the proceeding and a submission that the refusal of what was in substance a derisory offer was unreasonable an applicant in a proceeding under the FWA has been ordered to pay costs. Further that order was made in circumstances where a respondent’s case depended on the acceptance at trial of its evidence. There was no occasion here for the making of a costs order against Ms Celand.

89    None of this is to say that an unreasonable refusal of an offer of compromise can never engage s 570(2)(b) of the FWA such that it is reasonable to make an order for costs. Trite though the observation may be, whether there exists occasion to make such an order must turn on the circumstances of a given case.

90    The interlocutory application made by Ms Celand should be deemed to be an application for leave to appeal against the order for costs of 2 March 2017 and for any resultant appeal to be heard and determined instanter. That leave should be granted, the appeal allowed and the costs order of 2 March 2017 set aside. In lieu thereof, Skycity’s application for costs should be dismissed.

Associate:

Dated:    21 December 2017

REASONS FOR JUDGMENT

BROMBERG J:

91    The respondent (“Skycity”) operated a casino in Adelaide and employed the applicant (“Ms Celand”) in its gaming room from 7 July 2001. Ms Celand was initially employed as a part-time rotating dealer but was promoted from time to time. At the time that her employment with Skycity ceased in August 2014, Ms Celand was employed as a full-time supervisor of table games.

92    Ms Celand’s appeal challenges the dismissal by the Federal Circuit Court of Australia of her claim that Skycity contravened s 340 of the Fair Work Act 2009 (Cth) (“FW Act”): Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399.

93    Section 340 of the FW Act prohibits a person from taking “adverse action” including because that person has or has exercised a “workplace right”. The latter term is defined by s 341 and relevantly includes being entitled to a benefit or having a role or responsibility under a “workplace law” or a “workplace instrument”. Section 342 of the FW Act provides the definition for the phrase “adverse action”. Relevant for present purposes, item 1 of the table in s 342(1) (“Item 1”) provides that, when taken by an employer against an employee, adverse action means any of the following:

(1)    dismissing the employee; or

(2)    injuring the employee in his or her employment; or

(3)    altering the position of the employee to the employee’s prejudice; or

(4)    discriminating between the employee and other employees of the employer.

94    Of the other legislative provisions relevant to this appeal it is only then necessary to mention ss 360 and 361 of the FW Act. In relation to action taken of the kind covered by s 340, s 360 deems that a person takes action for a particular reason if the reasons for the action include that reason. Section 361 has the effect of reversing the onus of proof in relation to that element of the cause of action which deals with the reason why action was taken. When engaged, s 361 imposes a rebuttable presumption that the impugned action was or is being taken for the reason alleged by the applicant.

95    I have had the benefit, for which I am grateful, of reading a draft of the reasons for judgment of Logan J. His Honour has set out much of the relevant background which I need not repeat. As is apparent from his Honour’s reasons and those of the primary judge, Ms Celand’s claims that she had been subjected to various adverse action in contravention of s 340 centred around particular events which have been conveniently labelled “the promotion issue”, “the Misfud issue”, “the sexual harassment witness issue”, “the training session issue”, and “the overtime issue”. The events relevant to each of those issues have already been addressed in the reasons of Logan J.

96    Ms Celand’s grounds of appeal were as follows:

1.    The learned trial judge erred in failing to find that the Appellant was the subject of adverse action contrary to s.342 of the Fair Work Act by reason of the Respondent:

1.1    Discriminating between other employees and the Appellant (the promotion issue);

1.2    Altering the Appellant’s position to her prejudice or threatening or organizing to so do (s.342(2)) (the promotion issue, the Misfud issue, the sexual harassment witness issue, the Training Session issue, the overtime issue) by rendering her continued employment or alternatively advancement in her employment tenuous;

1.3    Injuring the Appellant in her employment by denying her overtime (or threatening or organizing to so do); and

1.4    Constructively dismissing her (the overtime issue).

2.    Inter alia the learned trial judge failed in the manner indicated in appeal ground 1 by failing to give effect to the provisions of s.361 of the Fair Work Act.

3.    The finding that the Appellant was not the subject of adverse action was against the evidence and the weight of the evidence.

4.     The learned trial judge by reason of the error indicated in ground 1 failed to find that the adverse action constituted repudiatory conduct by the Respondent.

5.    The learned trial judge should have found that the effect of acceptance by the Appellant of such repudiatory conduct was to bring the contract to an end [82], [365].

97    Those grounds, found in Ms Celand’s Amended Notice of Appeal, substituted some 11 grounds initially relied upon by Ms Celand in her Notice of Appeal. The grounds are pitched at a high level of generality and fail to provide any real understanding of the challenge Ms Celand makes to the judgment of the primary judge. Written submissions made for Ms Celand were not illuminating. Most of the submission was devoted to what was there referred to as “the primary issue raised by the appeal” being the primary judge’s “failure to assess the evidence by failing to apply the principles described as the rules in Browne v Dunn and Jones v Dunkel”. Whilst that asserted failure had found expression in ground 1 of the Notice of Appeal, that ground was abandoned and there are no grounds in the Amended Notice of Appeal, upon which Ms Celand now relies, which bear any apparent connection with her written submissions on what is described as the “primary issue”. Nor did the oral submission made for Ms Celand rectify the disconnection between Ms Celand’s grounds of appeal and her contentions on the appeal.

98    What the oral submissions did reveal, however, was that the unstructured approach taken to the appeal was reflective of the case put to the primary judge which had relied on both pleadings and submissions pitched at a very high level of generality. It is evident that the case made by Ms Celand to the primary judge paid insufficient regard to the elements of the cause of action that needed to be established for her to have succeeded.

99    In broad terms, the case put to the primary judge by Ms Celand, as is revealed by her Amended Statement of Claim (“ASOC”) and the submissions made to the primary judge, did little more than set out a chronology of events in which Ms Celand had been involved, asserted in very general terms that her involvement in some of the events described was the exercise by her of a workplace right and then pointed to and relied upon the reverse onus provided by s 361 to assert multiple contraventions of s 340 of the FW Act.

100    As I said in Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48], in relation to a claim brought pursuant to s 340 of the FW Act:

[S]uccess depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”.

101    Gray, Cowdroy and Reeves JJ made similar observations in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.

102    Moreover, proceedings in relation to civil penalty provisions under the FW Act are penal in nature. Allegations of contravention of the general protections provisions are inherently serious and should, as a matter of fairness, be pleaded with sufficient precision for a respondent to know the case against it. So much was made clear by the Full Court (Logan, Bromberg and Katzmann JJ) in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63]–[65] (emphasis added):

[63]    Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party’s case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) (“Evidence Act”).

[64]    Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.

[65]    The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion.

103    I will return to the disconnection between adverse action and prohibited reason which Ms Celand’s case suffered from. But first, I should address what the Full Court in Khiani at [32] referred to as the first question in a case such as this, that is, whether adverse action was taken.

Should the primary judge’s holdings that Skycity did not engage in “adverse action” be disturbed?

104    The logical starting point in a case claiming a contravention of s 340 is whether the respondent took any action which constituted “adverse action” within the meaning of s 342. On that issue the applicant bears the burden of establishing that adverse action was taken.

105    Ms Celand’s ASOC paid scant regard to specifying what adverse action it was alleged Skycity engaged in. Whilst the chronology of events there set out refers to various actions taken by Skycity, no particular conduct was asserted to constitute “adverse action”. Nor was there any assertion made that particular action fell within one or other of the different kinds of adverse action set out in paragraphs (a)–(d) of Item 1. The ASOC did little more than parrot those terms. It is otherwise perhaps implied that four events alleged in the chronology amounted to adverse action: that in December 2010 she was passed over for promotion ([15]-[16] of the ASOC: “the promotion issue”); that in December 2013 she was “pushed into a grievance meeting” as a result of reporting an incident relating to Rich Misfud to Skycity’s WHS Officer ([22]–[26] of the ASOC: “the Misfud issue”); that in January 2014 she was “disciplined for alleged offensive conduct in [a] Training Session” ([29] of the ASOC: “the training session issue”); and that on 28 January 2014 she was informed that her scheduled overtime had been cancelled and that she “was not to be rostered anymore overtime” ([31] of the ASOC: “the overtime issue”).

106    One further matter raised by the ASOC which may have been intended as an allegation of adverse action is that on 28 January 2014 Ms Celand requested to see her personnel file and was denied access to it (at [30]). That was treated by the primary judge as an allegation of adverse action and rejected. It is not, however, a matter raised by the appeal and I need not deal with it further.

107    Turning then to those of Ms Celand’s grounds of appeal which relate to the issue of adverse action, at grounds 1.2 and 1.3 it is suggested that the failure of the primary judge to make findings that action constituting “adverse action” included a failure to find that adverse action by way of threatened conduct had occurred. Section 342(2) of the FW Act extends the definition of “adverse action” to “threatening to take action covered by the table in sub-section (1)”. As I said in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528 at [54] “threatening to take action” involves conduct of a particular kind which necessarily includes the communication of a threat directed at an ascertainable person.

108    Ground 1.2 also asserts an error in the failure of the primary judge to make findings of adverse action constituted by Ms Celand’s “continued employment or alternatively advancement in her employment [being rendered] tenuous”. The ground suggests that adverse action of that kind was the result of the cumulative consequence of each of the events specified in the ground (ie “the promotion issue”, “the Misfud issue”, “the sexual harassment witness issue”, “the training session issue” and “the overtime issue”). It may be accepted that conduct which renders continued employment more tenuous or less secure, is capable of meeting the definition of adverse action: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [7] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). It may also be accepted that rendering continued advancement in employment more tenuous may also constitute “adverse action’ as an alteration to the position of the employee to the employee’s prejudice within the meaning of para (c) of Item 1.

109    On the appeal, Ms Celand made no submissions elaborating upon ground 1.2 or that part of ground 1.3 which relied upon threatened conduct. The primary judge did not make any findings of adverse action based on threatened conduct or on conduct rendering Ms Celand’s continued employment or advancement in her employment tenuous. Those matters are not addressed in the primary judge’s reasons at all. But it is no surprise that that should be so. There is nothing in the ASOC to suggest that Ms Celand had alleged adverse action by reason of any threat made to her or that by reason of the combination of those events comprising “the promotion issue”, “the Misfud issue”, “the sexual harassment witness issue”, “the training session issue” and “the overtime issue” she was subjected to adverse action by her employment or her advancement in that employment being rendered tenuous. It would appear that the first time any such suggestions were made on behalf of Ms Celand came in her final written submissions in a paragraph which sought to characterise the adverse action said to have been taken by Skycity in similar terms to those set out in appeal ground 1.2.

110    Ms Celand’s failure to make any submissions on the appeal in support of ground 1.2 suffices of itself to warrant that ground being dismissed. Insofar as that ground seeks to agitate a failure by the primary judge to deal with an allegation that adverse action was taken against Ms Celand, the primary judge was entitled to ignore an allegation of adverse action made for the first time in closing submissions in circumstances which most obviously would have denied Skycity an opportunity to deal with the allegation by the calling of evidence: Khiani at [33].

111    For those reasons I reject appeal ground 1.2.

112    I also reject appeal ground 1.3. I have dealt already with that aspect of it which raises the making of a threat. Again, this ground was not the subject of any submissions on the appeal and ought to be rejected on that basis alone. Additionally, insofar as the ground seeks to assert that the denial to Ms Celand of overtime work was capable of constituting adverse action as an injury in her employment within the meaning of para (b) of Item 1, that contention must also be rejected.

113    On the assumption, ultimately not accepted, that Ms Celand had been targeted and overtime work denied to her, the primary judge concluded at [308] as follows:

Under the terms of the relevant enterprise agreement, Ms Celand was not entitled, as of right, to overtime. As such, I do not consider that she suffered an injury, in the sense envisaged by item 1(b) of section 342(1).

114    As the majority said in Patrick Stevedores at [4] in relation to a predecessor to para (b) of Item 1, “par (b) covers injury of any compensable kind”. The comparison thereafter made with the terms of the predecessor provision to para (c) of Item 1 indicated that an “injury of any compensable kind” was limited to a legal injury or, in other words the loss or diminution of an entitlement or right enforceable at law: Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [34]–[37] (Perry J).

115    Whilst no direct challenge is made in the grounds of appeal to the primary judge’s conclusion at [308] that Ms Celand had no right to overtime work under the relevant enterprise agreement, a submission was made for Ms Celand that cl 33 of that agreement conferred upon Ms Celand a right to work overtime. That was said to be implicit in the terms of the clause.

116    The relevant enterprise agreement is the Skycity Adelaide Casino/United Voice Enterprise Agreement 2011 (“EA”). Clause 33 does not expressly confer upon employees covered by the agreement any entitlement to be provided with overtime work. The clause essentially does three things. First, it provides the employer an entitlement to require an employee to work reasonable overtime. Second, the clause identifies when the performance of work is to be regarded as overtime work and, thirdly, the rate of pay for work performed as overtime work is specified. There is nothing either express or implicit in the clause to support the idea that an entitlement is conferred upon an employee to be provided with overtime work. There is no error in the primary judge’s conclusion that Ms Celand was not injured in the sense contemplated by para (b) of Item 1. For those reasons as well, appeal ground 1.3 must be rejected.

117    Given that para (c) of Item 1 is “a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question” (Patrick Stevedores at [4]), it is difficult to understand why Ms Celand’s claim that she was denied her customary access to overtime work was not alleged to be a prejudicial alteration to her position and thus adverse action of the kind addressed by that para (c) of Item 1. No such allegation was made in the ASOC and nor is it found in the final written submissions to which I earlier referred.

118    Despite the absence of any apparent allegation of that kind, the primary judge at [308], after dealing with whether Ms Celand had suffered an injury in relation to any loss of overtime, said this:

Nor do I consider that there was a specific alteration to the terms of Ms Celand’s employment, as I find that the direction that no employee should work more than 10 consecutive days was intended to apply to all table games staff and was directed towards ensuring the implementation of the applicable enterprise agreement.

119    Read in context, it seems clear that his Honour was there addressing para (c) of Item 1. It also seems apparent that the primary judge based his finding on a more limited construction of para (c) than the authorities would support. With respect to the primary judge, it is not a “specific alteration to the terms” of an employee’s employment that marks the boundary of the scope of para (c) of Item 1. That boundary is marked by an alteration to the position of the employee and, as set out already, such an alteration would encompass a deterioration in the advantages previously enjoyed by the employee.

120    If that be an error, it is not an error which the grounds of appeal raise. Nor was any suggestion of error of that kind raised in the submissions made on the appeal for Ms Celand. In those circumstances, it is not an error which I need further address. For reasons which will become apparent, even if a proper allegation had been made and the primary judge had taken a broader construction of para (c) of Item 1 in accordance with authority, there are other reasons why Ms Celand’s claim would have failed in any event.

121    It is convenient that I continue to address the question of whether any conduct taken by Skycity in relation to Ms Celand working overtime constituted “adverse action”.

122    Ms Celand contended that the primary judge erred by mischaracterising the nature of the allegations she made in relation to the alleged denial of overtime. The submission was that whilst Ms Celand had alleged that on 28 January 2014 she was told that she was not to be rostered any more overtime and that thereafter she was not offered overtime, the primary judge misconstrued her allegation as an allegation that she was only denied overtime in circumstances where she had already worked more than 10 days in a row.

123    It seems clear that at [308] and [309], where the primary judge held that there was no adverse action taken against Ms Celand relating to overtime, the primary judge was only dealing with any denial of overtime in circumstances where Ms Celand had already worked 10 consecutive days. But, contrary to Ms Celand’s submission, that was not a mischaracterisation of her allegation. As the content of [273] and [276] shows, the primary judge understood that the allegation made was that from 28 January 2014 Skycity had refused Ms Celand access to any overtime work. However, the primary judge did not accept that allegation. His Honour only accepted that Ms Celand’s access to overtime after 28 January 2014 was restricted by being denied overtime where she had previously worked 10 consecutive days. In that respect, the primary judge rejected that Ms Celand had been singled out in relation to the working of overtime and accepted Skycity’s evidence that an overtime restriction was generically imposed on all employees where an employee had already worked 10 consecutive days. On the basis of that factual finding (rather than the allegation made by Ms Celand) the primary judge rejected at [308]–[309] that Ms Celand had been the subject of adverse action in relation to overtime work. There was no mischaracterisation of her claim.

124    Counsel for Ms Celand also submitted that the primary judge erred in finding that she was not denied access to all overtime work after 28 January 2018. Although not specifically raised by appeal ground 3, that contention of an error in fact finding is within the broad scope of that ground and was the only submission of that kind made. I assume that this contention is the basis for ground 3.

125    What Ms Celand needed to establish was that she was offered no more overtime as a consequence of a decision made by Skycity and directed at her to deny or restrict her access to overtime work. On that issue, Ms Celand did not have the benefit of a reversal of the onus of proof by reason of the operation of s 361. The inquiry here was not the reason for particular conduct but whether particular conduct had occurred. On that issue Ms Celand had the burden of proof.

126    In support of her contention, Ms Celand gave evidence of receiving a telephone call on 28 January 2014 from Mr Keith Webster, then a scheduler in the table games department, in which Mr Webster said:

Hi, Jen. I’m really sorry, lovey. I have to cancel your shifts for the overtime, the OTDROs that you’ve got coming up. And we’ve been told we can’t roster you any more. Okay?

127    On the basis of that evidence together with an email from Ms Lesley Small to Mr Webster, to which I will shortly refer, counsel for Ms Celand submitted that the primary judge should have found that Skycity had decided to refuse her any further access to overtime.

128    The primary judge did not make that finding. The primary judge accepted evidence that as a consequence of a conversation between Ms Celand and Skycity’s human resources manager Mr Cameron Tannock, in which Ms Celand said that she was on day 12 of a 17-day shift, Mr Tannock became concerned that the rostering of work was non-compliant with the EA which restricted work to 10 consecutive days in any 14 day cycle. The primary judge also accepted Mr Tannock’s evidence that he was concerned that rostering of that kind had implications for the occupational health and safety risk of Skycity.

129    The primary judge further accepted that as a result of Mr Tannock’s concerns, Mr Tannock gave instructions that his concerns be addressed (at [290]). The primary judge found that another manager Mr Vincent Capurso sent an email the next day, dealing with what he (at that point) regarded to have been a complaint made by Ms Celand to Mr Tannock about being required to work 14 days straight (at [295]). As the primary judge held at [296], as a consequence of Mr Capurso’s understanding (or misunderstanding):

… Lesley Small, an administrator in the scheduling department, at the direction of Mr Capurso, sent the following email at 6:40pm on 27 January 2014 to Mr Webster and Mr May, the employees who actually liaised with casino staff in order to fill the forthcoming roster:

“Vince is sending Linda an email we are not to roster Jenny Celand any more otrdo’s, if she ask we just do not need her, tell you more when I see you”.

130    Relevantly at [298]–[299], the primary judge then held that:

[298]    It was Mr Capurso’s evidence that it was not his intention that the direction should apply only to Ms Celand, although her interaction with Mr Tannock clearly precipitated the chain of events, which led to Ms Small sending the email in question.

[299]    Mr Capurso’s evidence is supported by an email, which Ms Small sent approximately 25 minutes later, again to Mr May and Mr Webster. This email reads as follows:

“Vince just rang again it is not just jenny [sic] no-one can have 14 days stretches ie, must have at least 1 day off per week.”

131    The primary judge (at [301]–[303]) accepted evidence that Mr Tannock as well as two other managers, Mr Troy Whiting and Mr Ken Devine, had each separately communicated with Skycity’s scheduling department (in which Mr Webster worked) directing that work be rostered in accordance with the EA’s requirement that not more than 10 consecutive days are worked in a 14 day cycle.

132    The primary judge held that what Mr Webster told Ms Celand on 28 January 2014 was a result of a misunderstanding (at [305]), that the information given to her was “a communication stuff up rather than evidence of a managerial conspiracy against her” (at [278]). It was on that basis that the primary judge rejected (at [305]) that Ms Celand had been “singled out” or, in other words, that she was the subject of a decision directed at her alone that she should be denied further overtime work.

133    Ms Celand contended that in the absence of Mr Webster and Ms Small being called by Skycity to explain the communication they each made, the primary judge erred in concluding that Mr Webster’s communication with Ms Celand was the product of a misunderstanding rather than a decision directed at Ms Celand to deny her further overtime. Put another way, Counsel for Ms Celand said that without an explanation from Mr Webster and Ms Small, the primary judge was not entitled to infer that their communications were based on a misunderstanding.

134    That submission must be rejected. There was evidence to support a finding that what Mr Webster told Ms Celand was based on a misunderstanding. The information Mr Webster conveyed reflected what he had been told in the first email sent by Ms Small on 27 January 2014. That that email was a misunderstanding of Mr Capurso’s intention is evinced by Ms Small’s second email sent, as the primary judge found at [299], some 25 minutes later. It seems clear that the primary judge inferred that Mr Webster’s advice to Ms Celand was based on Ms Small’s first email in circumstances where Ms Small’s second correcting email had either not come to his attention or, if it had, had not resulted in Mr Webster communicating to Ms Celand that the change to rostering arrangements was not specific to her but was generic. An inference of that kind was available.

135    Insofar as Ms Celand continued to agitate reliance upon the rule in Jones v Dunkel on this issue, I am not satisfied that the finding made by the primary judge should be disturbed.

136    In Jones v Dunkel (1959) 101 CLR 298 at 321, Windeyer J said that “unless a party’s failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case”. However, the rule in Jones v Dunkel “only applies where a party is required to explain or contradict something”: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 at [47] (Barker J). Furthermore, the rule does not of itself permit the drawing of inferences where there is no other basis in the evidence to do so: ABCC v CFMEU at [47]. Rather, it holds that where there are grounds in the evidence for drawing an inference, it may be more confidently drawn in the circumstances contemplated by the rule.

137    It is not clear what inference relevant to the issue at hand Ms Celand says the primary judge should have drawn by reason of the failure of Skycity to call Mr Webster and Ms Small. What is it that Mr Webster and Ms Small would have said that would have been unhelpful to Skycity’s case? The primary judge was not asked to draw any particular inference as the consequence of Mr Webster or Ms Small not being called. Rather, it was put that there was a need for various matters relating to Mr Webster and Ms Small’s communications to have been explained (presumably by Mr Webster and Ms Small). The same submission was made on appeal. But what inference was to be drawn by Skycity’s failure to provide the various explanations called for by Ms Celland’s submission was never specified. The primary judge should not be overturned for failing to draw an inference which Ms Celand did not ask his Honour to draw.

138    Lastly, as to the primary judge’s finding that there was no adverse action by reason of a decision to deny Ms Celand access to all overtime work, Ms Celand contested (at least in her submissions) the finding made by the primary judge at [307] to the effect that she had worked some overtime after the end of January 2014. For that finding, as is apparent from [306], the primary judge relied on Ms Celand’s personal roster. Ms Celand contended that the roster was not the best evidence and that Skycity should have produced Ms Celand’s pay records or payslips for the relevant weeks as those documents would have clearly indicated whether she was provided with overtime work or not. The problem with that submission is that Ms Celand had the burden of proof on this issue. In circumstances where the roster cast doubt on her own evidence that she had not worked overtime, it was for Ms Celand to put before the primary judge the best evidence available on the issue.

139    In any event, what Ms Celand needed to establish was not merely that she had not worked any further overtime but that the working of overtime which could have been made available to her had been denied to her by reason of Skycity’s decision to refuse her access to further overtime work.

140    For those reasons appeal ground 3 should be rejected.

141    I turn then to the holdings made by the primary judge at [155], [156] and [175] that in relation to Ms Celand being passed over for promotion Skycity had not engaged in adverse action by prejudicially altering Ms Celand in her position (para (c) of Item 1), by injuring Ms Celand in her employment (para (b) of Item 1) or by discriminating against her (para (d) of Item 1). The first two holdings are not the subject of any ground of appeal nor was it submitted that the primary judge erred in relation to those findings. The third holding, that in relation to being passed over for promotion Ms Celand was not the subject of adverse action by way of discrimination, is raised by appeal ground 1.1. But the nature of the error is not there specified and was not addressed by the submissions made for Ms Celand. Ms Celand’s submissions on the promotion issue were directed to an asserted failure by Skycity to call Ms Konanc, a matter relevant to the issue of whether any adverse action taken was motivated by a prohibited reason. Accordingly, the basis for the asserted error in relation to the holding that there was no discrimination was not identified and there is no warrant for disturbing that holding on this appeal.

142    The final matter that I need to address in relation to whether the primary judge’s holdings that no adverse action was taken against Ms Celand are the findings made at [382]–[383] that Skycity had not repudiated Ms Celand’s contract of employment, had not constructively dismissed her from her employment and that no adverse action was taken against her by Skycity on that basis. Appeal ground 1.4 as well as grounds 4 and 5 deal with that subject, although those grounds and the submissions made on the issue failed to spell out with any real clarity what the basis for the challenge was other than that the primary judge should have held that Skycity had denied Ms Celand access to all overtime work. That denial was what Ms Celand asserted to be the repudiatory conduct of Skycity.

143    The short answer to what I presume to be Ms Celand’s contention that the primary judge should have held that in repudiating her contract and constructively dismissing her from her employment Skycity took adverse action of the kind specified in para (a) of Item 1, is that Ms Celand failed to establish the alleged repudiatory conduct. For the reasons already given, there is no basis for disturbing the primary judge’s holding that no decision singling out Ms Celand was made to deny her access to overtime work. It follows that the primary judge’s finding that there was no repudiation, no constructive dismissal and no resulting adverse action ought not be disturbed.

144    Appeal grounds 1.4, 4 and 5 must be rejected.

Did the primary judge misapply s 361 of the FW Act?

145    The only remaining ground of appeal is ground 3 which, in addressing the issue of the reason for any adverse action, contends that the primary judge failed to give effect to s 361 of the FW Act. It is not strictly necessary to deal with this ground because Ms Celland’s failure to set aside the primary judge’s holdings that no adverse action was taken by Skycity must result in the dismissal of her appeal. Nevertheless, for completeness, I will address s 361 and some of the issues raised in relation to it.

146    It is convenient that the terms of s 361 of the FW Act be set out:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

147    As is apparent from its terms, s 361(1) is directed at those provisions which give rise to a contravention of Part 3–1 of Ch 3 of the FW Act which require proof that a person took or is taking action “for a particular reason” or “with a particular intent”. Section 340 is such a provision, as it is only adverse action taken “because” another person has or does not have, exercises or has not exercise (etc) a workplace right which is prohibited. In substance, and to use the terminology utilised by a predecessor of s 340, the taking of adverse action is only a contravention of s 340 if it is taken for a prohibited reason, namely the holding, exercise (etc) of a “workplace right”.

148    What s 361 does is reverse the onus of proof by creating a rebuttable statutory presumption that the person who has taken the action has done so because of the reason alleged. Unless the person proves otherwise, it is presumed that the adverse action was, or is being, taken for the reason alleged. The rationale for the s 361 presumption is that the reason for taking action is a matter that lies peculiarly within the knowledge of the person taking the action: General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 (Mason J); RailPro Services Pty Ltd v Vlavel (2015) 242 FCR 424 at [23] (Perry J); Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [22] (Flick J).

149    What for present purposes is important to notice is that the s 361 presumption is only engaged “if … it is alleged” that the action was taken for “a particular reason or with a particular intent”. In the context of s 340, in order to take the benefit of the s 361 presumption an applicant must allege that adverse action was taken for a particular prohibited reason. That requires an allegation to be made that the particular adverse action alleged was taken because of a particular prohibited reason or reasons. Without the specific allegation being made the respondent would not know what it is that it must prove to rebut the presumption.

150    This is a case in which multiple acts and multiple workplace rights were relied upon by Ms Celand to establish contraventions of s 340. It is not necessary to traverse the detail, but it is not apparent to me that Ms Celand did allege that any particular action that she alleged to be “adverse action” was taken for a “particular [prohibited] reason”. Subject to one possible qualification which would involve a generous reading of [31] of the ASOC, the ASOC does not make the requisite allegations which identify the asserted nexus between each particular action impugned and a particular prohibited reason. It would not suffice for that to have been done in the evidence given at trial as at one point counsel for Ms Celand submitted had been done. The requisite allegations needed to have been made clearly and with sufficient time to have provided Skycity due notice of the case it was required to meet. They needed to have been pleaded (CFMEU v BHP Coal at [63]–[64]) or at least “treated by the parties during the trial as being ‘in the ring’”: Miba Pty Ltd v Nescor Industries Group Pty Ltd [1996] FCA 834; 141 ALR 525 at 543 (Merkel J) and CFMEU v BHP Coal at [65].

151    The lack of an assertion by Ms Celand of a nexus between particular adverse action and a particular prohibited reason or reasons seems to have led Skycity to make the following submission which the primary judge accepted at [27] as identifying the broad issues that arose for determination:

a)    did the Applicant suffer ‘adverse action’ within the meaning of s 342(1) Item 1 of the FW Act;

b)    was the alleged ‘adverse action’ taken because the Applicant had or exercised a relevant workplace right. In this context,     

i)    did the Applicant have or exercise a relevant workplace right within the meaning of s 341 of the FW Act;

ii)    what is alleged to be the nexus between the alleged workplace right and the alleged adverse action;

c)    if the Applicant establishes a prima facie connection between the alleged adverse action event and a workplace right, then the onus shifts to the Respondent. The Court’s inquiry is why did the adverse action occur. Did the adverse action occur because the Applicant exercised a workplace right;

d)    if there is a finding of adverse action, what loss or damage did the Applicant suffer?

152    With respect to the primary judge, his Honour erred in accepting the content of para (c) and in particular that it is incumbent upon an applicant to establish “a prima facie connection between the alleged adverse action event and a workplace right” before the onus shifts to a respondent or, in other words, before the s 361 presumption is engaged.

153    On the appeal, Skycity did not ultimately defend the proposition it had put to the primary judge. It conceded that the proposition overstated what s 361 requires and that a connection between adverse action and prohibited reason will be made by the making of the allegation that s 361 requires. Skycity did however, refer to the first of the two qualifications I will now address.

154    There are, on the authorities, two qualifications to the proposition that the making of the requisite allegation suffices to engage the s 361 presumption. The first is that an applicant will not take the benefit of the s 361 presumption unless the applicant establishes as an objective fact the circumstance said to be the reason for the taking of the adverse action. That is the qualification I referred to at [70] of FWO v AWU which is supported by the observations I made at [72] as follows:

As Jessup J (with whom Allsop CJ and White J agreed) said in Tattsbet Limited v Morrow (2015) 233 FCR 46 at [119], there is a history of many first-instance judgments of this Court where:

… it has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact…

See also Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]–[162] (Branson J); Bahonko v Sterjov (2007) 167 IR 43 at [96]–[101] (Jessup J); Police Federation of Australia v Nixon (2008) 168 FCR 340 at [68] (Ryan J); Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306 at [49]–[50] (Moore J); Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [10] (Collier J); Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [329]–[331] (Barker J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59] (Katzmann J); Stephens v Australian Postal Corporation [2014] FCA 732 at [13] (Flick J).

155    A second qualification is that referred to by Flick J in Hall in the following passage at [25]:

Third, in order to invoke the reverse onus of proof, an applicant need only establish that “the evidence is consistent with the hypothesis” that a respondent was actuated by a proscribed reason: Bowling (1976) 51 ALJR at 241. When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded:

Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

See also: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [22] to [23], (2013) 234 IR 139 at 147 per Gray J; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 at [80] to [81], (2015) 253 IR 166 at 186 to 187 per Reeves J.

156    That qualification aligns with what the Full Court (Logan, Bromberg and Katzmann JJ) said in CFMEU v BHP Coal where, after referring to the observations made by Mason J in Bowling as cited by Flick J in the preceding quote, the Full Court at [192] relevantly said this:

It is possible that the alleged reason may be negated by a respondent on the applicant's own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker. But as French CJ and Crennan J observed at [45] of Barclay, “[g]enerally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker”.

157    Neither of those qualifications requires an applicant to establish a prima facie connection between the alleged adverse action and a prohibited reason. There is an obvious difference between establishing a prima facie connection and demonstrating that the connection between the reason alleged and the impugned conduct is not so remote as to be fanciful.

158    The extent to which the primary judge applied the principle which he accepted is not entirely clear. There are passages in the reasons of the primary judge which suggest that some application was given to the principle including at [187] where the primary judge said this:

Nor, in my view, has it been established that sufficient connection exists between Mr Devine’s alleged attitude and any action, which he took concerning Ms Celand, in the workplace. In my view, Ms Celand’s case remains inchoate and ill-defined in this regard.

159    Insofar as the primary judge’s misapplication of s 361 constituted error, it makes no difference. Ms Celand did not establish that any adverse action was taken against her and that in itself was sufficient to have required her claims made under s 340 to be dismissed. Furthermore, though I need not reach a concluded view, there is force in the proposition that any misapplication of s 361 by the primary judge is of no consequence because, by failing to make the requisite allegation in relation to the reasons for each of the actions of Skycity which she sought to impugn as adverse action, Ms Celand failed to avail herself of the benefit of the s 361 presumption.

160    For all those reasons, Ms Celand’s appeal must be dismissed.

161    I respectfully agree with Logan J that the appeal from the judgment as to costs (Skycity Adelaide Pty Ltd v Celand [2017] FCCA 196) should be allowed and that the orders ancillary thereto should be made.

162    In relation to the costs judgment, I would add one further observation which I only make in passing including because it was not the subject of argument.

163    The primary judge held that as Ms Celand had rejected a reasonable offer of settlement, she had engaged in an act or omission which was “unreasonable” within the meaning of s 570(2)(b) of the FW Act. It does not necessarily follow that the rejection of a reasonable offer amounts to an “unreasonable act or omission”. All relevant circumstances need to be taken into account and circumstances other than the reasonable character of the offer may dictate whether its rejection was or was not unreasonable.

164    Secondly and relatedly, the word “reasonable” is not conducive of exact definition. As Stroud’s Judicial Dictionary of Words and Phrases (4th ed, Sweet & Maxwell Limited, 1974, at 2258) says in its definition for the word “reasonable” – “it would be unreasonable to expect an exact definition of the word ‘reasonable’”. The word “unreasonable” takes much of its colour from its context.

165    In the context of justifying an order for indemnity costs in favour of a person who has made a Calderbank offer, the rejection of the offer need not be “plainly unreasonable” and an “especially high standard of unreasonableness” is not to be adopted because that would operate to diminish the effectiveness of the Calderbank offer as an incentive to settlement: Black v Lipovac [1998] FCA 699 at [218] (Miles, Heerey and Madgwick JJ); Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506 at [22] (Bromberg J). Accordingly, in that context the word “unreasonable” may be used synonymously with “imprudent”: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 at [11] (Weinberg J). It denotes an act which is not guided by or based upon good sense or sound judgment. In the context of the use of the word “unreasonable” in s 570(2)(b), taking into account the underlying purpose of that provision which includes the promotion of access to justice (Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ)), a higher standard of unreasonableness is to be adopted. It has been said that the fact that a party has conducted litigation inefficiently or adopted a misguided approach will be relevant to, but not conclusive of, the party having acted unreasonably in a sense relevant to s 570(2)(b): Hutchinson v Comcare (No 2) [2017] FCA 370 at [8] (Bromberg J); Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [29] (Tamberlin, Gyles and Gilmour JJ). The difference in the standards of unreasonableness which are applicable in the two contexts in question needs to be appreciated before the rejection of a reasonable offer of settlement is characterised as an “unreasonable act or omission”.

Associate:        

Dated:    21 December 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

166    I have had the benefit of considering the draft reasons for judgment of both Logan J and Bromberg J.

167    For the reasons given by Bromberg J, I agree that the appeal from the substantive judgment should be dismissed. My concurrence with his Honour’s reasons is subject to one qualification.

168    As has been observed, the reverse onus of proof provided for in s 361 of the Fair Work Act 2009 (Cth) is only enlivened “if ... it is alleged” that an adverse action is taken for “a particular reason or with a particular intent”. This Court has concluded that the primary judge did not err in finding that the respondent either did not take “adverse action” (as defined) or that the respondent, when it took adverse action, did not take it for a prohibited reason. It is unnecessary to consider whether the appellant pleaded or conducted her case with sufficient particularity to enliven the statutory presumption. Submissions on the appeal proceeded on the basis that any such presumption was correctly found by the primary judge to either not arise on the facts, or to have been rebutted in any event. The appellant’s contentions about the application of the principle in Jones v Dunkel (1959) 101 CLR 298 have been rejected. In the circumstances, I would prefer to leave questions concerning the sufficiency of an allegation for the purposes of s 361 of the Act (and the manner or form in which such an allegation must be made) to a case in which the outcome depends upon it.

169    I turn to the appeal from the orders of the primary judge allowing the respondent’s application for costs. I concur with the observations of Logan J as to the undesirability of that appeal coming before the Full Court at the time and in the manner in which it did. I join in his Honour’s proposed order to the effect that the appellant’s application dated 14 March 2017 be deemed to be an application for leave to appeal against the costs order. I respectfully agree that leave to appeal should be granted.

170    I would not, however, allow the appeal against the costs judgment.

171    The question of whether the appellant’s conduct in allowing the offer to expire was an “unreasonable act” required an evaluative assessment of all of the circumstances. It turned on matters of judgment and degree. In my view, the conclusion that the appellant committed an unreasonable act was open to the primary judge to make in all of the circumstances. It was the subjective “satisfaction” of the primary judge as to the existence of an unreasonable act that enlivened the discretion to award costs. The formation by the primary judge of that state of satisfaction has not been shown to be affected by any error warranting appellate intervention. More specifically, it cannot be said that the primary judge misconstrued the test prescribed in s 570(2)(b) of the Act, and it is not enough to show that this Court might have evaluated the same facts in a different way and so arrived at a different result.

172    The reasonableness of the appellant’s conduct in allowing the respondent’s offer to lapse is to be assessed objectively and, as Logan J has emphasised, prospectively. At the time that the offer was made, the appellant had in her possession the affidavit material upon which the respondent would rely at trial. The offer reasonably required the appellant’s careful and commercial consideration, having particular regard to the risk that the factual and legal issues in dispute would be determined against her. Viewed objectively, that risk was considerable and there is nothing in the outcome that could not fairly have been anticipated by the appellant at the time that the offer was made.

173    There is no tension, implicit or otherwise, between the circumstance that the appellant did not institute the proceedings vexatiously or without reasonable cause and a finding that she acted unreasonably at a later time by rejecting an offer of settlement once the strong evidentiary case to be advanced by the respondent at trial was made known to her.

174    I do not agree that the primary judge should have characterised the offer as “derisory” or as a “walk away” proposal. The quantum of the offer fell to be considered against the circumstance that the appellant would not in the ordinary course recover her own costs of the proceedings, even if she were successful. In that statutory context, the appellant cannot answer the claim that she acted unreasonably in rejecting the offer by complaining that the amount of the offer fell short of the costs she had incurred to that time.

175    The discretion to award costs was, in my view, properly enlivened and no miscarriage in the exercise of the discretion of the kind referred to in House v The King (1936) 55 CLR 499 has been demonstrated. I would order that the appeal against that judgment be dismissed.

Associate:

Dated:    21 December 2017