FEDERAL COURT OF AUSTRALIA

Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716

THE COURT ORDERS THAT:

1.    The applications for costs be refused.

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

REASONS FOR JUDGMENT

1        On 20 June 2014, I delivered judgment in these proceedings: Stanley v Service to Youth Council Incorporated [2014] FCA 643. This decision concerns the costs of those proceedings and should be read in conjunction with the reasons published on 20 June.

2        The effect of the judgment on 20 June was that all of the applicant’s claims pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) in respect of alleged discrimination and sexual harassment in contravention of the Sex Discrimination Act 1984 (Cth) (the SD Act) were dismissed, and only one of her three claims of contraventions of the National Employment Standards established by the Fair Work Act 2009 (Cth) (the FW Act) was upheld. I found that SYC had contravened s 65 of the FW Act by failing to respond in writing within the prescribed period to the applicant’s request for flexible working arrangements at the end of her period of parental leave but that she had not established contraventions by SYC of ss 83 and 84 of the FW Act. Those claims were dismissed.

3        SYC seeks orders that the applicant pay 50% of its party/party costs of and incidental to the action generally, but 100% of its costs (again on a party/party basis) in relation to the directions hearings held on 19 July and 24 September 2013 and of the argument concerning tendency evidence on 30 September 2013.

4        The applicant opposes those claims. She contends in the alternative that, in the event that her submissions concerning the application of s 570 of the FW Act are not accepted, SYC should pay the costs, on a party/party basis, of the claim pursuant to s 65 of the FW Act on which she succeeded.

5        Section 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) is the principal source of this Court’s power to award costs. It provides (relevantly):

(1)    Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs shall not be awarded.

…

(2)    Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

…

Section 43(1) is expressly made subject to s 570 of the FW Act, which provides:

(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.

(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.

6        The effect of s 570 is to limit the Court’s power under s 43 of the FCA Act in respect of proceedings relating to matters arising under the FW Act. The Court may order a party to such proceedings to pay the costs of another party only if the Court is satisfied (relevantly) that the party instituted the proceedings vexatiously or without reasonable cause, or that the party’s unreasonable act or omission caused the other party to incur costs.

7        It was common ground that neither the SD Act nor the AHRC Act contains any provision qualifying the Court’s power under s 43.

Does s 570 confine the Court’s power?

8        SYC accepted that s 570 applied to the claimed contraventions of ss 65, 83 and 84 of the FW Act and, for that reason, did not seek costs in respect of the dismissal of the applicant’s claims under those sections.

9        However, SYC contended that s 570 does not limit this Court’s costs power with respect to the applicant’s unsuccessful claims under the SD Act and that the Court has its usual discretion with respect to those costs. SYC relied for this submission on Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (No 2) [2013] FCAFC 25; (2013) 209 FCR 464 (CFMEU (No 2)) in relation to the effect of the former s 824 of the Workplace Relations Act 1996 (Cth) (the WR Act). Section 824 provided:

(1)    A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

(2)    Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.

(3)    In subsections (1) and (2):

costs includes all legal and professional costs and disbursements and expenses of witnesses.

As can be seen, s 824 is similar to, but not identical with, s 570.

10        CFMEU (No 2) concerned the costs of an appeal from a judgment that a union official had been involved in a contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and in a contravention of the former s 494(1) of the WR Act; that, in consequence, the CFMEU had contravened those provisions and the terms of a collective agreement; and that the CFMEU was therefore liable to a penalty under the former s 719 of the WR Act. CFMEU’s appeal had succeeded (Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2012] FCAFC 178; (2012) 209 FCR 448), and it sought payment of its costs of the whole of the appeal. Thus, CFMEU (No 2), like the present case, concerned the costs of a proceeding involving a claim under the WR Act as well as a claim under another federal Act.

11        The Full Court (North, Logan and Robertson JJ) made an extensive review of the decisions concerning s 824 and its predecessors. It noted (at [58], 483) that, on previous occasions this Court had reached differing views as to the effect of s 824 or its predecessors in relation to proceedings involving claims under two federal statutes. The Full Court considered (at [62], 484) that there was a strong implication in the BCII Act that, in a proceeding involving the exercise of the Court’s jurisdiction under that Act, the Court had its statutory discretion under s 43 to award costs. It held that both Acts should be construed as having a harmonious operation and concluded (at [64], 484):

Giving the provisions a harmonious operation, in our view where the matter arises under two Acts of the Parliament, s 824 of the WR Act does not apply to the entirety of the proceeding to limit the power of the Court to make a costs order.

The Full Court then ordered the respondent to pay 50% of the CFMEU’s costs of the appeal and remitted to the trial Judge the question of costs of the first instance hearing.

12        SYC submitted that the reasoning in CFMEU (No 2) should be applied in the present case, with the effect that it should be entitled to a costs order in respect of the claims under the SD Act on which the applicant had failed.

13        In my opinion, the decision in CFMEU (No 2) is not conclusive of the position under s 570.

14        There are conflicting decisions at both the Full Court and single judge level regarding the effect of s 347 of the Industrial Relations Act 1988 (Cth), s 824 of the WR Act, and other predecessors of s 570. The Full Court decisions are more pertinent presently. Those which indicate that, when there is a single proceeding, no distinction should be drawn between the claims arising under the FW Act (or its predecessors), on the one hand, and non-federal claims, on the other, include Thompson v Hodder (1989) 21 FCR 467 at 471 (although the Full Court was not then addressing the present issue); Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 351, 367-8; and Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [94]-[95], [164]-[165], [380]; (2007) 163 FCR 62 at 65-6, 70. Decisions involving claims arising under two separate federal laws in which a different view was taken include Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 and CFMEU (No 2).

15        However, it is not necessary to consider the effect of those decisions more closely. As already noted, although s 570 is the counterpart in the FW Act of s 824 of the WR Act, it is not identical with s 824. Regard must be had to its different terminology and to its legislative history.

16        Section 570 formed part of the FW Act when it was enacted and came into operation on 1 July 2009. As originally enacted, s 570(1) provided:

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction 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.

    (Emphasis added)

17        By Sch 1, Item 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s 824 of the WR Act was repealed. Schedule 17, Pt 1, Item 9 of the same Act also amended s 43 of the FCA Act to include the clause “and s 570 of the Fair Work Act 2009”. Both the repeal of s 824 and the amendment of s 43 also came into effect on 1 July 2009.

18        In the Explanatory Memorandum relating to the Fair Work Bill 2008 (Cth), the Minister said in relation to the proposed s 570:

2228.    The ability of the courts to award costs in workplace relations matters has been limited since 1904 and is part of the policy of discouraging legalism in proceedings before industrial courts. However, this clause departs from section 824 of the WR Act, in that it is limited to proceedings in which a court is exercising jurisdiction under the Bill rather than in any matter arising under the Bill. A similar change was made to clause 565 (see above).

2229.    As noted above, the ‘matters arising’ language has been interpreted broadly. A proceeding not brought under the WR Act could still arise under the WR Act. The broad application of the costs provision has given rise to technical arguments that the provision does not apply in a range of proceedings not involving exercise of jurisdiction under the WR Act and its predecessors (see, e.g., Tristar Steering and Suspension v Industrial Relations Commission (NSW) (No. 2) [2007] FCAFC 95; 159 FCR 274). Given the nature and complexity of ‘matters arising’ that are determined before State Supreme Courts, the Federal Court and the High Court, it is not appropriate that the limitation on costs orders apply to matters arising under the Bill which do not involve the exercise of jurisdiction under the Bill.

As can be seen, the intention when s 570(1) was first enacted was to confine the limitation on courts’ powers with respect to costs to those cases in which courts were actually exercising a jurisdiction under the FW Act.

19        In relation to the amendment to s 43 of the FCA Act, the Minister said in the Explanatory Memorandum:

582.    This item makes a consequential amendment to subsection 43(1) to make it clear that the general costs provisions contained in that section do not apply to proceedings in relation to a matter arising under the FW Bill.

583.    In a proceeding where the Court is exercising jurisdiction under the FW Bill, the Federal Court may only order a party to pay costs in accordance with clause 570 of the FW Bill.

584.    The ability of the courts to award costs in workplace relations matters has been limited since 1904 and is consistent with discouraging legalism in proceedings before industrial courts.

(Emphasis added)

20        Save for a minor amendment not presently relevant, s 570 remained in the form in which it was originally enacted until 1 January 2013. On that day an amendment effected by Sch 10, Pt 1, Item 1 of the Fair Work Amendment Act 2012 (Cth) came into operation. The effect of the amendment was to delete from s 570(1) the words “exercising jurisdiction under this Act” and to substitute the words “in relation to a matter arising under this Act”. The Explanatory Memorandum relating to the amendment stated:

Section 570 of the FW Act provides for courts exercising jurisdiction under the FW Act to award costs against a party to proceedings (including appeals) only in circumstances where the court is satisfied that the party instituted proceedings vexatiously or without reasonable cause, the party’s unreasonable act or omission caused the other party to incur costs, or the party unreasonably refused to participate in a matter before FWA that arose from the same facts as the court proceedings. Part 1 of Schedule 10 to the Bill will amend section 570 of the FW Act so that it operates in relation to matters arising under the FW Act, rather than in relation to courts exercising jurisdiction under the FW Act. This amendment confirms that the FW Act is generally a ‘no costs’ jurisdiction (including in appeal proceedings).

(Emphasis added)

21        A transitional provision in Sch 11, Pt 10, Item 31 of the Fair Work Amendment Act 2012 (Cth) provided:

The amendment made by Part 1 of Schedule 10 to the amending Act (which is about costs orders in court proceedings) applies in relation to proceedings commenced after the commencement of that Part.

22        The applicant commenced her proceedings in this Court on 2 April 2013 and so s 570, in its amended form, applies in her case.

23        Three matters of relevance for present purposes can be discerned from this sequence of events. First, as already noted, the legislative intention when s 570 was first enacted was to confine the limitation on costs to cases in which courts were actually exercising jurisdiction under the FW Act. Secondly, the effect of the 2012 amendment was to enlarge the scope of the costs limitation to proceedings “in relation to” a matter arising under the FW Act, whether or not those proceedings involved an exercise of jurisdiction under that Act. Thirdly, when enlarging the costs limitation, the legislature did not revert to the terminology of s 824 and its predecessors. It couched the restriction on the Court’s powers with respect to costs in different language and included the words “in relation to”. That prepositional phrase did not form part of s 824 of the WR Act or its legislative predecessors.

24        Effect should be given to every word in s 570(1): Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; (1998) 194 CLR 355 at 382. This means that s 570(1) is not to be construed as though it provided only that a “party to proceedings in a court in a matter arising under this Act may be ordered by the court to pay costs …”.

25        In my opinion, the inclusion of the prepositional phrase “in relation to” in s 570, the explanation given for the amendment, and the circumstance that the legislature did not revert to the terminology of s 824, together support an inference that the legislative intention is that the costs limitation effected by s 570 should be greater than that afforded by s 824 of the WR Act and its predecessors. Courts’ powers with respect to costs are limited not just in proceedings “in a matter” arising under the FW Act, but in proceedings “in relation to a matter” arising under that Act.

26        The phrase “in relation to” is usually taken to indicate some relationship or connection between two subject matters: Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533. The degree or closeness of the contemplated connection is to be determined by the statutory context: Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285.

27        Ordinarily, the requisite degree of connection in the context of s 570 will be satisfied when an applicant seeks to enforce an entitlement for which the FW Act provides.

28        The limitation on courts’ powers with respect to costs operates in respect of any “party to proceedings”, provided that those proceedings relate to a “matter” arising under the FW Act. On its face, the limitation operates whenever those considerations are satisfied, whether or not the proceedings also include claims under other federal legislation or in the accrued jurisdiction. The FW Act does not define the word “proceedings”, but generally it is used to refer to the action or means by which a party moves a court to grant the desired relief, rather than to individual claims or causes of action in the action. Thus, in Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia) [1996] 1 VR 17 at 20, Tadgell JA said of the word “proceeding” in s 3 of the Supreme Court Act 1986 (Vic):

[It] is used as a generic expression to embrace what was formerly comprehended individually and respectively by the expressions “action”, “cause” and “matter”. The expression “matter in the court” in the definition of “proceeding” in s 3 refers on that assumption to a proceeding in the sense of a vehicle by which the jurisdiction of the Court is invoked and not to the subject matter of a justiciable dispute.

29        In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 509, Mason J noted authorities indicating that “matters” and “proceedings” are not necessarily co-extensive, and that proceedings may involve more than one matter.

30        In Geneff v Peterson (1986) 19 IR 40 at 90, Gray J considered the meaning of the word “proceeding” in s 197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor of s 570, and said:

[T]he section operates in relation to a “proceeding”. There is only one proceeding before the Court, although that proceeding involves a number of separate claims, each of which might have been the subject of a separate proceeding. … In my view, it is impossible to split the claims within a proceeding for the purpose of the application of s 197A.

31        Similarly, in Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) [2011] FCA 816 at [205]; (2011) 211 IR 119 at 182, Moore J considered that s 824 of the WR Act operated in relation to a proceeding in which any claim is advanced as part of a matter constituted by the entire controversy between the parties to that proceeding. See also Grout v Gunnedah Shire Council (No 3) (1995) 59 IR 248 at 260-1 and Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [379]; (2007) 163 FCR 62 at 69.

32        This understanding of the word “proceeding” seems also to be implicit in the decisions concerning the predecessors of s 570 that the word “proceeding” encompasses not only the principal action but also interlocutory applications. In Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736, Wilcox CJ, with whom von Doussa J agreed, said at 745:

As I have indicated, the word “proceeding” is widely used to refer, not only to a principal action (or “proceeding”) between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the words in parenthesis indicate the contrary. If Parliament had intended that “proceeding” should be understood, in s 347, as meaning only a principal action that commenced when the Court’s jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a “proceeding”.

This view of s 347 was endorsed by the Full Court of this Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 at [11]; (2003) 129 FCR 271 at 274.

33        In my opinion, similar reasoning is appropriate in relation to s 570. The possibility that a matter arising under the FW Act may be so minor as to be insignificant in comparison with other causes of action does not require consideration in this case.

34        There is presently only one proceeding before the Court. Although the applicant made multiple claims in the proceeding, raising separate causes of action, I do not think that each claim or each cause of action can itself be described as a “proceeding” for the purposes of s 570. Such a meaning would be inapposite in the context of s 570.

35        SYC submitted that the circumstance that claims arising under the SD Act may be brought independently of the FW Act was relevant to the proper construction of s 570 but, to my mind, that is a circumstance which enlivens the question of construction, rather than an indication of its proper resolution.

36        Accordingly, I conclude that s 570 applies irrespective of whether the claims in the proceedings are confined to FW Act claims. Provided that it can be said that the proceedings relate to matters arising under the FW Act, the costs limitation is applicable even if they include other claims.

The application of s 570

37        SYC submitted that, even on this construction of s 570, subs (2)(b) nevertheless permitted an order for costs in its favour in respect of the directions hearings held on 19 July and 24 September 2013, and of the argument concerning tendency evidence on 30 September 2013.

38        Section 570(2)(b) permits a Court to order a party to pay costs if the Court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs. The Court must be satisfied both that there was either an unreasonable act or omission and that that Act or omission caused another party to incur costs.

39        It was said in respect of s 824 of the WR Act that the Court should 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 in the manner which they deem best: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 at [29]; (2008) 170 FCR 574 at 582. Counsel for the applicant also referred to Ashby v Slipper (No 2) [2014] FCAFC 67 at [35] in which the Full Court, after referring to Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199 at [60]; (2006) 156 FCR 275 at 289, said that s 570 “reflects a policy of protecting a party instituting proceedings from liability for costs” and “costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order”. Counsel submitted that the Court presently should approach the applications of SYC by enquiring whether the circumstances of this case could be regarded as exceptional.

40        Ordinarily, the question of whether an act or omission is unreasonable is to be determined as a matter of fact having regard to the circumstances of each case. That is the approach which I will adopt in the present case but having regard to the evident policy of s 570, as identified in Clarke, that the Court should not too readily find conduct of a litigant to be unreasonable.

41        Against this view of the effect of s 570, I turn to address the individual claims made by SYC.

The costs of the whole proceeding

42        SYC claimed 50% of the cost of the proceedings on the basis that s 570 limited the Court’s powers only with respect to the claims brought under the FW Act. It did not contend that, in the event that its submissions as to the effect of s 570 failed, that it was otherwise entitled to the costs of the whole proceeding.

43        Accordingly, this claim fails.

The costs of the directions hearing on 19 July 2013

44        The applicant commenced her proceedings in this Court on 2 April 2013. At the first directions hearing on 22 April 2013, Mansfield J made orders with respect to pleadings and identification of documents and adjourned the directions hearing to 19 July 2013. The applicant filed her statement of claim on 24 May 2013.

45        Although the application filed on 2 April 2013 named SYC as the respondent, the statement of claim included four further respondents, being Mr Edginton, Mr Furniss, Mr Dyer and Ms England. Both the Court and SYC raised issues with the applicant’s solicitor about the inclusion of the additional respondents in the absence, amongst other things, of leave of the Court. The applicant then filed an interlocutory application on 21 June 2013 seeking the joinder of the additional four respondents, and leave to amend her originating application. A supporting affidavit from the applicant’s solicitors provided an explanation for those respondents not having been included when the action was commenced on 2 April.

46        The interlocutory application was made returnable at the directions hearing on 19 July 2013. However, counsel then informed the Court that the applicant did not persist with the application for joinder and amendment, saying that she had come to the view that it was not necessary to do so in order to obtain the relief which she sought. The Court then made directions with respect to the amendment of the originating application and the statement of claim more generally, and adjourned the matter for further directions on 4 September 2013. SYC then applied for a costs order in its favour in relation to the applicant’s interlocutory application.

47        Mansfield J did not determine that application. He considered that the nature and extent of the conduct alleged against the individual respondents, which he was told would be the subject of evidence in the trial, might inform the proper exercise of the discretion on costs and, accordingly, reserved the costs of the interlocutory application to the trial judge.

48        Although SYC indicated before me that it sought an order for costs in its favour in relation to the directions hearing of 19 July 2013, its submissions indicated that it sought such an order only in relation to the applicant’s interlocutory application which was dealt with that day. Counsel submitted that it had been unreasonable for the applicant to file the interlocutory application because it was doomed to fail. He said that this followed from the circumstance that no complaint had been made about the individual respondents in the applicant’s complaint before the Australian Human Rights Commission (the AHRC). Counsel drew attention in this respect to s 46PO(1) of the AHRC Act which permits an “affected person” in relation to a complaint to the AHRC to commence proceedings in this Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint”. He contended that, as the individual respondents had not been respondents to the terminated complaint, this Court did not have jurisdiction to hear any claim under the SD Act in relation to them.

49        Counsel for SYC accepted that, for this submission to succeed, I would have to determine whether, as a matter of law, it is possible for an applicant to name persons as respondents to proceedings in this Court who have not been respondents to proceedings in the AHRC. In addition, it would be necessary to make findings of fact concerning the course of proceedings in the AHRC as there are some indications in the applicant’s material that the joining of the individuals had been raised with the AHRC, but not persisted with before the AHRC concluded its proceedings. Consideration would also have to be given to this Court’s powers with respect to the joinder of an additional party and to the interrelationship of those powers with s 46PO(1).

50        In my opinion, such a determination is inappropriate. It would require the Court to give the parties the opportunity to make full submissions about these matters and to determine a substantive issue only for the purposes of determining an issue about costs. By itself, this would probably involve the parties incurring more costs than those presently in dispute, something which is inappropriate solely for the purposes of resolution of an issue concerning costs.

51        I agree with SYC that there are aspects of the applicant’s conduct, particularly in bringing an application which was abandoned only one month later, which are unsatisfactory. Nevertheless, I accept that the selection of proper parties to proceedings can in some instances be difficult. There is a general principle that every person whose interests may be directly or adversely affected by the terms of the judgment sought, and whose presence before the Court is necessary for a judgment in the terms sought to be entered, should be named as a respondent to the proceedings. There can sometimes be uncertainties about the application of that principle, especially in circumstances in which an employer is said to have engaged an unlawful activity because of the conduct of one of its employees. If such a claim succeeds, it is almost inevitable that the Court will reach adverse conclusions about the individual employee’s conduct. Thus, I consider it understandable that the applicant may, at one stage, have considered that it was necessary for the individuals to be joined as respondents.

52        It also seems that the applicant’s position was reviewed by her then counsel between 21 June and 19 July 2013.

53        In combination, I consider that these matters indicate that the applicant’s conduct should not be regarded as unreasonable.

54        As these were the only matters on which SYC relied in relation to its application with respect to 19 July 2013, I do not consider that it has established the threshold condition required by s 570(2)(b) to allow this Court’s discretion concerning costs to be enlivened.

The costs of the directions hearing on 24 September 2013

55        At a directions hearing on 4 September 2013, I listed the matter for trial to commence on 30 September 2013.

56        At the request of SYC, I listed an urgent directions hearing on 24 September 2013. SYC sought the directions hearing because the applicant had indicated to it informally that she may wish to adduce medical evidence at the trial when she had not previously foreshadowed any intention to do so, and sought the Court’s direction in that circumstance. Further, the nature and extent of tendency evidence which the applicant proposed leading at trial had become apparent, causing SYC concern, particularly as to its ability to respond in a timely way to the evidence.

57        At the directions hearing on 24 September, the applicant’s solicitor indicated that the possibility that some medical evidence may be appropriate had arisen while she was taking instructions from the applicant shortly after 4 September. Following some further submissions, the applicant indicated that she no longer intended to adduce the foreshadowed medical evidence. I informed the parties that I did not regard a directions hearing as the proper occasion to be making rulings about the admissibility of evidence in the trial and invited counsel for SYC, if so instructed, to raise the issue about the applicant’s proposed tendency evidence after the conclusion of the applicant’s opening of her case on 30 September.

58        In these circumstances, I do not consider that it can be said that an act of the applicant (or an omission by the applicant to mention the possibility of expert evidence at the directions hearing on 4 September) was unreasonable, or that it caused the respondent to incur costs. I note again that it was at the respondent’s instigation that the directions hearing on 24 September 2013 was held. The respondent could have raised its concern about both the foreshadowed medical evidence and the tendency evidence on the first day of trial, only a few days later.

59        Accordingly, this aspect of the application fails.

The tendency evidence argument on 30 September

60        At the conclusion of the applicant’s opening on 30 September, I heard submissions from both parties regarding the proposal by the applicant to lead tendency evidence from two witnesses, Ms Poppy and Ms Curnow. My reasons in Stanley v Service to Youth Council Incorporated (No 2) [2014] FCA 644 indicate the issues and my ruling, and I will not repeat them in these reasons.

61        The applicant had not complied with the procedural requirements in s 97 of the Evidence Act 1995 (Cth) for the adducing of the tendency evidence. That was one omission on which SYC relied presently. It also contended that it had been unreasonable for the applicant to contemplate calling as evidence in her own case the whole of the evidence which Ms Poppy proposed giving in her own proceedings against SYC.

62        I agree that there were some unsatisfactory features of the applicant’s conduct in relation to the proposed tendency evidence. She had made no attempt to give the required notice to the respondent and it was unrealistic to think that the whole of the evidence which Ms Poppy proposed to lead in her own action could be admissible as tendency evidence in any event in the applicant’s action.

63        However, the issues concerning the proposed tendency evidence were relatively straightforward and the submissions concerning them quite confined. They occupied approximately 10 pages of the transcript on 30 September (in addition to the written submissions). Further, the applicant was permitted to lead some of the tendency evidence she proposed.

64        In my opinion, the Court should be particularly cautious about awarding costs in respect of evidentiary rulings. To do otherwise would be to contemplate a multiplicity of costs applications in respect of the various rulings which are invariably made in the course of a trial. Further, I note that SYC had to address Ms Poppy’s statement of evidence in any event in relation to its defence of the claim which she had brought.

65        Accordingly, although there are, as I have said, aspects of the applicant’s conduct in relation to the proposed tendency evidence which were less than satisfactory, I am not satisfied that SYC establishes that these satisfy the unreasonableness criterion for the purposes of s 570(2)(b).

Conclusion on SYC’s application

66        For these reasons, SYC’s costs applications fail.

The applicant’s alternative application

67        As the applicant pursued her costs application only in the alternative, it is not necessary to address it.

Conclusion

68        In summary, I consider that s 570 has the effect of prohibiting the making of any orders for costs in relation to the applicant’s proceedings.

Associate:

Dated:    4 July 2014