Federal Court of Australia

Harper v Gold Coast Pistol Club Limited [2023] FCAFC 165

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The respondents’ application for costs be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    This is an application for leave to appeal in respect of two interlocutory value judgments in respect of matters of practice and procedure made by a judge of the Federal Circuit and Family Court Division 2 (Circuit Court). The particular value judgments culminated in an order of 20 March 2023. That order reflects the perfection, apparently, of a foreshadowed order, reasons for which were given earlier, on 17 March 2023. By that order, the Circuit Court:

(1)    dismissed an application filed on behalf of the applicant on 15 February 2023;

(2)    dismissed an application filed on behalf of the applicant on 10 March 2023.

More particularly, the reasons for judgment disclose that on 20 March 2023 that the Circuit Court dismissed, respectively, an application further to amend the statement of claim and an application for discovery or, more particularly, compliance with a pre-existing case management order for discovery.

2    To recite the occasion for the leave to appeal application in this way is also to give pause for thought about whether the application for leave was ever apt.

3    Before passing further on that subject, it is necessary to give some brief details, insofar as they emerge on the pleadings, of the background to the proceeding.

4    The proceeding has its origins in the termination of the employment of the applicant, Mrs Kathryn Harper, by the first respondent, the Gold Coast Pistol Club Limited (the Club) in 2021. That termination of employment saw Mrs Harper institute proceedings in the Fair Work Division of the Circuit Court in which she alleged that she had been subject to adverse action in terms of the Fair Work Act 2009 (Cth) (Fair Work Act).

5    There were ancillary causes of action, more particularly described in an amended statement of claim filed in the proceeding. One issue in the proceedings concerns Mrs Harper’s right to have occupancy of premises known as the cottage at 85 Edmund Rice Drive, Ashmore. That cottage is situated on the Club’s premises. At an earlier interlocutory stage, a judge of the Circuit Court dismissed an application by Mrs Harper, on 20 October 2021, for an interlocutory injunction restraining her ejection from the cottage pending the hearing and determination of her substantive application: see Harper v Gold Coast Pistol Club Limited [2021] FedCFamC2G 191. That order of dismissal became the subject of what proved to be a successful application for leave to appeal and related appeal to this Court.

6    On 16 February 2022, this Court in appellate jurisdiction, coincidentally constituted by me, upheld Mrs Harper’s appeal and made an interlocutory injunctive order which, in effect, granted Mrs Harper occupancy of the cottage on terms more particularly set out in the order of 16 February 2022, pending the hearing and determination of the substantive application: see Harper v Gold Coast Pistol Club Limited [2022] FCA 525. In so doing, I observed, at [43]:

What is clear enough is that it is so very desirable that this case be heard as soon as possible.

7    Lamentably, events thereafter have seen not one but two allocated trial periods vacated. The case was initially offered a trial in November last year. In October last year, and with the concurrence of the Circuit Court, the parties sought the vacation of that trial allocation. That followed occasions when the respondents had been indulgent to Mrs Harper in relation to compliance with interlocutory orders. It will be necessary to return to events in 2022 shortly. For present purposes, it is enough to note that a fresh trial period in March this year was allocated.

8    About a month before that trial period, those acting for Mrs Harper agitated the question of the adequacy of discovery by the respondents. This took the form of an email sent by the solicitors for Mrs Harper to the solicitors for the Club and the various natural person respondents. It was a sequel to a directions hearing which had been conducted before the primary judge on 7 February 2023. It was stated:

On reflection, there are a number of categories that should have been discovered/disclosed but where no or only limited documents have thus far been. Those categories are -

1.    Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, Instagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties concerning the working conditions or remuneration of Ms Harper at the Club. No such documents have been produced. Please produce them within 14 days.

2.    Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, Instagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties between 1 January 2020 to date concerning the proceedings. No such documents have been produced. Please produce them within 14 days.

3.    Minutes of meetings (or any visual or audio recording of meetings) for the Committee of the First Respondent, members meetings, AGMs or EGMs during the period 1 January 2000 to date. Please produce them within 14 days.

4.    Minutes of meetings (or any visual or audio recording of meetings) for any meeting of sub-committees formed by Mr Flori to consider the working conditions and wages of Ms Harper at the Club. No such documents have been produced. Please produce them within 14 days.

[emphasis in original]

9    A response was made on behalf of the respondents by their solicitors by a letter dated 6 March 2023 in which in respect of the four identified categories the following was stated:

The position of the First Respondent is set-out adopting the numbering of your email.

Category 1

Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, lnstagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties concerning the working conditions or remuneration of Ms Harper at the Club. No such documents have been produced.

There are no documents which meet the category described.

Category 2

Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, lnstagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties between 1 January 2020 to date concerning the proceedings. No such documents have been produced.

There are no documents which meet the category described.

Category 3

Minutes of meetings (or any visual or audio recording of meetings) for the Committee of the First Respondent, members meetings, AGMs or EGMs during the period 1 January 2000 to date.

Available minutes between 12 January 2008 and 21 June 2021 have already been disclosed in the Respondent's List of Documents filed 9 December 2021 and annexed to the Affidavit of Victor Jonathan Clough dated 23 December 2022.

As previously advised, our client does not hold any records prior to 2008 as those records were destroyed in the floods.

Any Minutes after the date your client ceased employment, being 7 July 2021 are not relevant to the proceedings.

Category 4

Minutes of meetings (or any visual or audio recording of meetings) for any meeting of sub­ committees formed by Mr Flori to consider the working conditions and wages of Ms Harper at the Club. No such documents have been produced.

There are no documents which meet the category described.

That letter also attached, voluntarily, an additional list of documents together with the copies of the documents referred to in that list.

10    The primary judge offered a summary of interlocutory steps beyond those to which I have just made reference. In particular, his Honour at [6] through to and including [10], made reference to how in October 2021 particular orders which included provision for discovery by the respondents came to be made on 27 October 2021. Also in February, the first of the interlocutory applications dealt with in the Circuit Court in March 2023 was filed. That was an application for leave to file and serve the amended statement of claim. That amendment sought to raise a new cause of action. Its terms are set out by the primary judge, at [17], of his Honour’s reasons for judgment. In short form, a cause of action said to be grounded in a constructive trust was sought to be added.

11    In dealing with whether or not to allow that amendment, his Honour stated, at [13], that a particular document had come into the possession of those acting for Mrs Harper in August 2021. It is accepted that this reference to August 2021 came from an affidavit which had not been read before his Honour. Whilst that is an unfortunate error of reference, the position remains, as was conceded before his Honour by those acting for Mrs Harper, that the document concerned, which was said to be inspirational for the amendment, had been in the possession of those acting for Mrs Harper at least from December 2021.

12    Also in December 2021, a list of documents was filed on behalf of the Club. No list of documents was filed on behalf of the other respondents each of whom is a natural person. The primary judge observed in relation to the interlocutory applications that no satisfactory explanation had been advanced on behalf of the applicant as to why there was such a lengthy delay in making a complaint about nondisclosure of documents said to be relevant: see [19]. His Honour also stated that no satisfactory explanation had been advanced by Mr Amirbeaggi, the particular solicitor within the firm acting for Mrs Harper for that absence of complaint. His Honour particularly referred to [17] of an affidavit made by Mr Amirbeaggi on 6 February 2023 which stated:

19    On 9 December 2021, a List of Documents was filed on behalf of the first respondent. No List of Documents was filed on behalf of any of the second to tenth respondents. As was deposed to by Ms Engel at [7] of her affidavit filed on 12 March 2023, the applicant had never made any complaint in relation to the second to tenth respondents not making disclosure until 5.04 pm on 6 February 2023 when the applicant’s lawyers served the affidavit of Mr Amirbeaggi - almost one year and two months after the filing of the first respondent’s List of Documents.

13    It was in that affidavit of Mr Amirbeaggi that the request was made for the discovery of all records relating to the applicant’s employment which had been held, or were being held, by each of the respondents, for the period from 1 January 2010 until 31 December 2022. No satisfactory explanation has been advanced on behalf of the applicant as to why there was such a lengthy delay in the making of a complaint about non-disclosure of documents said to be relevant. Due to the lengthy period of time which elapsed between the filing of the List of Documents on 9 December 2021 and the making of complaint about discovery on 6 February 2023, the Court does not accept as valid the explanation advanced by Mr Amirbeaggi, at [17], of his affidavit of 6 February 2023, which was as follows:

[17]    Because of the complications identified in paragraphs 11 to 16 above [namely the unavailability of Junior or Senior Counsel and the alleged refusal of potential witnesses to assist in giving evidence], and my opinion that YBL [the applicant’s lawyers] should take the evidence of third-party witnesses whilst they were still available and willing to give it, YBL prioritised the third-party witness evidence over the applicant’s evidence. Because of that ordering, YBL only came to learn of many relevant facts and matters from the applicant after YBL had already completed the third party evidence.

(underlining and explanation inserted)

[emphasis in original]

14    As it happened, the trial was to commence on Monday, 13 March 2023. The previous day, a Sunday, no less than six further affidavits were filed on behalf of Mrs Harper. This was well out of time in terms of interlocutory case management directions. It was on 10 March 2023 that the application for “verified disclosure” of records as identified in Mrs Harper’s solicitor’s email of 9 February 2023 was filed.

15    It was against this background that on the first day of the trial, and for some days thereafter it seems, his Honour entertained submissions on the interlocutory applications rather than embarking upon the substantive hearing.

16    Aptly, with respect, his Honour first dealt with whether or not to grant leave further to amend the statement of claim. I say aptly because, necessarily, the scope of any discovery would be dictated by that directly relevant to an issue on the pleadings. His Honour recorded that occasion for the vacation of the November trial period, 14 to 25 November, had been the late filing by Mrs Harper of her affidavit evidence-in-chief. His Honour then made reference to s 139 and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Circuit Court Act). These sections provide:

139    Determination of matter completely and finally

In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:

(a)    absolutely; or

(b)    on such terms and conditions as the Court thinks just;

all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:

(c)    all matters in controversy between the parties may be completely and finally determined; and

(d)    all multiplicity of proceedings concerning any of those matters may be avoided.

190    Overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

Note 1:    See also paragraphs 5(a) and (b).

Note 2:    The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

(2)    Without limiting subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court's overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)    The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)    the Rules of Court;

(b)    any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

[emphasis in original]

17    His Honour observed, at [29], that s 139 must be read in conjunction with s 190 and also the requirement found in s 191 to act consistently with the overarching purpose as described in s 191.

18    His Honour observed, at [30], that he did not accept a submission made on behalf of Mrs Harper that the proposed constructive trust claim did not require any further evidence to be traversed at trial. His Honour stated:

The evidence of Mr Amirbeaggi that further discovery of documents dating back to 2010 would be required as the result of the proposed amendment flies in the face of such submission.

19    His Honour also found it noteworthy, at [31], that although the trial had been listed to commence on 13 March 2023, affidavits continued to be filed on behalf of Mrs Harper as late as 12 March 2023. He observed that this was in the context of there being over 70 persons who had either sworn affidavits on behalf of Mrs Harper or been subpoenaed to appear at trial. Apparently, his Honour had, in the course of the hearing before the interlocutory applications put to senior counsel for Mrs Harper that the nature of the evidence and classes of witness should be examined with a view to culling the large number. His Honour observed. at [31], that:

As late as 15 March 2023 with exquisite nonchalance it was stated to the Court that no forensic decision concerning the number and identity of witnesses to be called on behalf of the applicant had yet been made.

20    His Honour further referred to [23] of Mr Amirbeaggi’s affidavit and to his assessment that a further 12 years of records for the period between 1 January 2010 and 31 December 2022 would need to be disclosed. In any event, it is apparent from [33] that the overarching factor for his Honour was the tardiness of those acting for Mrs Harper in bringing on the amendment application. His Honour found the following, at [34]:

34    The Court finds that the delay on the part of the applicant over time prevented:

(a)    A quick, inexpensive and efficient resolution of the dispute contrary to the provisions of s. 190(1)(b) of the Act;

(b)    The efficient use of the judicial and administrative resources available for the purposes of the Court contrary to the provisions of s. 190(2)(b) of the Act;

(c)    The efficient disposal of the Court’s overall caseload contrary to the provisions of s. 190(2)(c) of the Act;

(d)    The disposal of proceedings in a timely manner contrary to the provisions of s. 190(2)(d) of the Act;

(e)     The resolution of the dispute at a cost which was proportionate to the importance and complexity of the matters in dispute contrary to the provisions of s. 190(2)(e) of the Act.

21    This culminated in a conclusion that Mrs Harper had not conducted the proceeding in a way that was consistent with the overarching purpose of the Circuit Court Act expressed in s 190.

22    There then followed reference by his Honour to Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and to the expression of a view by his Honour that, at [37] that:

The cost and prejudice to the respondents of any further delays in the hearing and determination of this proceeding far outweighs the benefit which might accrue to the applicant by pleading a further cause of action based on an alleged constructive trust.

23    His Honour then made some observations concerning that cause of action and the impact of a limitation period on the Fair Work Act cause of action. His Honour’s statement “and that claim, of course, has limited it more to the extent it is able to be argued having regard to the relevant six year limitation period imposed by section 545, subsection (5)” is clearly referable just to that cause of action.

24    The proposed grounds of appeal insofar as they touch upon the question of leave to amend are, with respect, nothing more than a litany of arguments which might have been and indeed were put to his Honour as to whether Mrs Harper ought to have permission yet again to amend the statement of claim.

25    The approach which a court should take in relation to an application for leave to appeal in respect of a matter of practice and procedure may helpfully be traced to observations made by Jordan CJ in re Will of Gilbert (1946) 46 SR(NSW) 318, at 323, where his Honour stated:

There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges at first instance, the result would be disastrous to the proper administration of justice.

26    That statement was expressly endorsed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, at 177. It was also more recently endorsed by a Full Court of this Court in the context of an industrial case in Sabapathy v Jetstar Airways (2021) 283 FCR 348 (Sabapathy).

27    In relation to the application for leave to amend the statement of claim, this application offers, in my view, a paradigm example where the “tight rein” is called for in respect of an application for leave to appeal. It is necessary to recall that there had already been one occasion for the amendment of the statement of claim and that was approaching about 18 months prior to the March 2023 trial period.

28    In my view, the error that the primary judge admittedly made in assigning to August 2021 rather than December 2021 occasioned for possession of inspirational documents for the proposed further amended statement of claim is truly of no moment on any view. Well over a year had passed without any overt agitation at all of a further amendment to the statement of claim. In that time, there had already been the fixing of trial dates for November 2022 and a prior case management hearing. In my view, it was open to the learned primary judge to take the view that this proposed amendment was not merely the addition of a pure point of law without any factual consequence. The nature of the cause of action sought to be pleaded was radically different to the existing causes of action. At least inferentially, it required a much more searching evidentiary foundation in respect of the state of mind at given times of the Club’s governing committee.

29    It was accepted that the number of natural person respondents did not correlate completely with the membership from time to time of the Club’s governing committee. But putting that aside, and irrespective of whether s 190 of the Circuit Court Act is declaratory of a hitherto position or designed to focus attention in the modern area on the efficient use of a scarce public resource, namely, the number of judges available to exercise judicial power, there comes a time when it is an affront to the administration of justice for those acting for a party to seek yet again to fine tune the subject for the exercise of judicial power by amendment of a pleading.

30    When one looks, as the primary judge did, in retrospect to the conduct of Mrs Harper and those acting for her from the commencement of proceedings, one sees conduct which, with all respect, is antithetical to the overarching purpose. It is apparent from the primary judge’s reasons that his Honour was aware of the existence of the interlocutory injunction. In the face of that interlocutory injunction, it behoved those acting for Mrs Harper to give timely attention to the imperative need to bring the case to trial in a timely fashion. In my view, there was no error of principle in relation to the refusal of the amendment of the statement of claim. Rather, there was an unremarkable exercise of a judicial discretion. It is nothing to the point that others exercising judicial power may, perhaps, have been more sympathetic. The error has to be one of such an order that it would be unreasonable to have refused the amendment.

31    Reference was made on behalf of Mrs Harper to observations made by a Full Court of which, also coincidentally, I was a member in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, at [50] and [51], where it was stated:

50    The Cement Australia parties submit further that the ACCC, which is charged with the enforcement of the TPA, with particular expertise would be expected to have directed its mind to the market in which it alleges contraventions of the TPA took place: see at [25]. This meant, the Cement Australia parties say, that evidence from those instructing the ACCC and counsel was critical to any proper determination of the application and, in the absence of such evidence, a court could not be satisfied that any error of judgment had occurred nor that leave to amend was appropriate. The appellants submit that in this respect the case is indistinguishable from Aon Risk.

51    Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.

[footnote references omitted]

Of course, ultimately, each of these practice and procedure cases turns on the particular background circumstances which inform the making of a particular interlocutory order. Of course, also, case management is not an end in itself. Case management must be the servant, not master of justice. For all that, the rules of the Circuit Court, as for that matter this Court, in the modern era anticipate and provide for the case management of proceedings.

32    Parties are expected to comply with particular case management directions. Where there is occasion to seek to vary to them, particularly where trial dates are fixed, that variation must be made by a timely application. It is hard to envisage a more belated endeavour to amend a statement of claim than that made in the present proceeding. I would therefore refuse leave to appeal insofar as challenge is sought to be made to the dismissal of the application to further amend the statement of claim.

33    As to discovery, it is apparent from the reasons of the judgment of the primary judge that, ultimately, it was delay which proved decisive for his Honour. I say that because, at [50], his Honour stated:

Further, in circumstances where for more than a year the applicant had failed to make application for discovery by the second - 10th respondents having known of the non-filing by them of a list of documents on 9 December 2021 and subsequently in light of there having been no express abandonment of the pleaded privilege claim, the applicant’s own delay disentitles her from seeking further discovery at such a late stage of the proceedings based on the doctrine of laches.

34    His Honour’s reference to further discovery read in context is, in my view, nothing more than a reference to requiring them to give discovery. It is to be remembered that prior to the earlier 2022 trial period there was no agitation whatsoever on behalf of Mrs Harper as to the absence of discovery. That was the time when any application for discovery ought to have been made. It is quite wrong to seek, as Mrs Harper sought to do in her leave application just to focus attention on the agitation which occurred in February 2023. That agitation seems to have been the result of some attention finally being given to the question of discovery as a yet further trial date became imminent.

35    It is true that his Honour also made reference to two cases concerning the question of the waiver of penalty privilege in the context of civil penalty proceedings; one, a judgment of Kiefel J then of this Court in JL Holdings Pty Ltd v State of Queensland (1996) 71 FCR 545 and the other, a judgment of Gray J, Birrell v Australian National Airlines Commission (1984) 1 FCR 526 (Birrell v Australian National Airlines Commission), at 532.

36    It may be that there is a need to consider afresh the question of the extent to which, if at all, the giving of consent to interlocutory orders in a civil penalty proceeding on behalf of natural persons constitutes a waiver of civil penalty proceeding. But this case, in my view, is not an appropriate vehicle in respect of which the Full Court should embark upon a consideration of that question. That is because in any event, as is so apparent from the background facts and [50] of the reasons for judgment of the primary judge, the gross delay which had occurred in this case in the face of the earlier failure to give discovery by natural person respondents was, in itself, a complete answer as to why an application for discovery at the very door of the Court was rightly refused. It is not appropriate in those circumstances to embark on the hearing in appellate jurisdiction of what is truly, in the circumstances of this particular case, an academic issue.

37    Once again, it maybe accepted that case management is a servant rather than master of justice, but to have left some 18 months pass by without any agitation, including letting an earlier trial period pass by, of the question of any waiver is such a defiance of the overarching purpose of civil litigation that the primary judge was well within his rights just for that reason alone to have refused the application for discovery.

38    I was left to wonder how many judicial pronouncements it takes in these proceedings for it to dawn on those acting for each of the parties that the proceeding was one initiated in what is on any view Australia’s busiest federal trial court in respect of which periods of up to a fortnight of judicial time are precious resources not just of the parties to a case but of the Australian public generally. This case is, after all, an industrial one where, as I observed in allowing the earlier interlocutory appeal, there is not just a private but a public interest in timely resolution of a termination controversy. Mrs Harper should be under no illusion that the timeliness with which the case is brought to trial is influential on the Court’s consideration of whether to continue to interlocutory injunctive order which has been granted. Equally, one might well think that the Club’s funds could be much better expended in seeking to reach some sensible compromise, as could Mrs Harper’s for that matter, than pursuing a case to a yet third trial date. Of course, if the parties wish the case to be tried, the Circuit Court is duty bound to hear it. For the present, it is enough to observe that, in relation to the question of discovery also, this is a case which, in my view, offers a paradigm example of where a tight rein needs to be kept.

39    I would therefore refuse leave to appeal in respect of the interlocutory order refusing to order discovery. It follows from the forgoing that I would dismiss the application for leave to appeal.

[The Respondents’ then made an application for costs orally]

COSTS

40    Upon the pronouncement of the Court’s respective reasons for judgment in respect of the fate of the application for leave to appeal, an application was made on behalf of the respondents for an order for costs. The Court’s general power to award costs is found in s 43 of the Federal Court of Australia Act 1976 (Cth). That confers on the Court a discretionary power to order costs. The ordinary way in which that discretion is exercised is that costs follow the event of a particular proceeding. However, in relation to the present case, that general discretionary power in respect of the awarding of costs is qualified by s 570 of the Fair Work Act. That provides that:

A party to proceedings, including an appeal in a court 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, materially, subsection (2).

41    Within s 570(2) it is provided again, materially, that:

A party maybe ordered to pay the costs only if (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause.

42    It was put on behalf of the respondents that the application for leave to appeal ought to be characterised, having regard to the reasons for judgment respectively just delivered, as having been instituted without reasonable cause. In Sabapathy, one of the cases to which I refer in giving reasons for the dismissal of the application for leave to appeal, there was a costs sequel: see Sabapathy v Jetstar Airways (No 2) [2021] FCAFC 68. As it happened, in that particular case the solicitor for the party concerned submitted to the making against him personally of such order as the Court thought apt in light of s 570(2) of the Fair Work Act. Again, as it happened, the Court was of the view, in the circumstances of that case, that the case was one which fell within the class of cases where a costs order might be made.

43    For my own part, I have given very anxious consideration indeed as to whether or not this particular case was also one where it was apt to regard the proceeding, namely, the application for leave to appeal, as one instituted without reasonable cause. However, it is necessary, particularly, to remember two things. The first is that the outcome in Sabapathy is really no precedent at all as to why costs should or should not be awarded in this particular case. The very language of s 570(2)(a) of the Fair Work Act is instructive as to why that is so. The unreasonableness must be in the circumstances of a given case. The second reason is that it is necessary to consider that question as to whether proceedings were instituted without reasonable cause from a prospective perspective.

44    Of course, the reasons for judgment for dismissing an application for leave to appeal can be instructive in that regard but nonetheless, they contain, necessarily, a wisdom of hindsight as far as the institution of proceedings question is concerned. What gives pause for thought for me in relation to the awarding of costs in this case is that there was, unusually one would hope, a reference by mistake by the primary judge to an affidavit which had not been read on the hearing of the interlocutory applications. As it turned out, that led to an error which was not regarded as material in terms of the conclusion as to delay but it was, nonetheless, a particular error of procedure, with respect, by the primary judge.

45    Another point which is influential for me is that in relation to discovery and as was frankly conceded in the submissions made on behalf of the respondents, there is a live issue in the civil penalty procedural jurisprudence as to the correctness of the observation as to waiver made by Gray J in Birrell v Australian National Airlines Commission. It is just that, for reasons that have been given, while that in isolation may have provided occasion for a granting of leave, considered in the context of what was in any event gross delay, the point concerning the correctness of Birrell v Australian National Airlines Commission and its application in the circumstances of this case where orders have been promoted consensually which included discovery by the respondents was academic. Academic in the sense that the case was not an appropriate vehicle which warranted a grant of leave, because the occasion for refusing discovery was in any event found in unexplained gross delay.

46    It is emphatically not the case that costs follow the event in circumstances where s 570(2)(a) is applicable. I remember also that, although I did not regard the refusal of the amendment as turning upon views expressed by the primary judge as to limitation periods and the proposed constructive trust claim, the language of his Honour concerning that aspect of the application was not entirely beyond criticism. It is just that, once again, the refusal of leave could be found, in any event, in the overwhelmingly influential tardiness of the application further to amend the statement of claim.

47    Taking all of these considerations into account and tempering the antipathy which I have for endeavours to challenge interlocutory value judgments on practice and procedure by leave to appeal applications with the particular factors I have just mentioned, I do not see this as a case where it could be said that the case is one where the leave to appeal application was instituted without reasonable cause. It is not sufficient to constitute an institution without reasonable cause that if I had been acting for Mrs Harper, I would not have promoted the institution of the leave to appeal application. To reach a conclusion that it was instituted without reasonable cause, it would be necessary for me to reach a conclusion that it was unreasonable to the point where no reasonable practitioner would have so promoted the institution of the proceeding such that no reasonable party could have so instituted the leave to appeal proceeding. I cannot in all good conscience reach that conclusion in respect of the institution of the proceeding.

48    I would therefore refuse an order for costs.

Associate:    

Dated:    11 October 2023

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MEAGHER J:

49    I agree.

[In respect of the Respondents’ Costs Application]

costs

50    I agree.

Associate:

Dated:    11 October 2023

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MCEVOY J:

51    I also agree with the orders proposed by the learned presiding judge. I am not satisfied the decision of the primary judge is attended by sufficient doubt to warrant a grant of leave, or that substantial injustice would result if leave were refused, supposing the decision to be wrong. I form these views substantially for the reasons which have been given by the presiding judge.

[In respect of the Respondents’ Costs Application]

COSTS

52    I also agree that there should be no order as to costs, substantially for the reasons given by the learned presiding judge. Like him, I am not satisfied that the application was made without reasonable cause having regard to those aspect of the decision of the primary judge which have been mentioned.

Associate:    

Dated:    11 October 2023

SCHEDULE OF PARTIES