FEDERAL COURT OF AUSTRALIA

Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) (No 3) [2017] FCA 1203

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to pay 20% of the first respondent’s costs, such costs to be agreed or taxed.

2.    For the purposes of the order in paragraph 1, the first respondent’s costs are to be quantified on the basis that the total costs incurred jointly by the first and second respondents are attributable to them in equal parts.

3.    The first respondent is to pay 20% of the applicant’s costs, such costs to be agreed or taxed.

4.    The second respondent is to pay 40% of the applicant’s costs, such costs to be agreed or taxed.

5.    The order for costs made in paragraph 3 on 15 June 2016 is varied so as to substitute the words “respondents’ costs” with “the second respondent’s costs”.

6.    The execution of any order for costs against the applicant in these proceedings is stayed pending:

(a)    satisfaction of any costs payable to her by the respondents or any one of them in accordance with these orders or any other order; and

(b)    satisfaction of the order for damages against the second respondent made on 28 July 2017.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant (Alexandra Walsh) joined two respondents on a claim for compensation for victimisation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). Ms Walsh was unsuccessful in her claim against the first respondent (UTHSAC) and successful in part in her claim against the second respondent (Priscilla Larkins): Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) (No 2) [2017] FCA 852.

2    Ms Walsh was found to have made protected disclosures of information which she reasonably suspected indicated that Mrs Larkins may have breached the CATSI Act: Walsh at [6]. Mrs Larkins victimised Ms Walsh by reason of her making the disclosures, specifically by threatening to have Ms Walsh’s husband killed in gaol: see Walsh at [218]. For that act of victimisation, Mrs Larkins was ordered to pay Ms Walsh compensation in the amount of $6,583.22 including prejudgment interest: Walsh at [248].

3    The parties now make applications for costs as follows:

(1)    UTHSAC seeks an order that Ms Walsh pay the whole of its costs on an indemnity basis in reliance upon the outcome of the trial and offers of settlement it made to Ms Walsh;

(2)    Mrs Larkins seeks an order that there be no order as to costs of the proceedings until such point that Ms Walsh pay Mrs Larkins’ costs on and from:

(a)    5 September 2015, being the date of an unsuccessful mediation of the matter;

(b)    3 December 2015, being the date on which a first formal offer of compromise was made;

(c)    27 January 2016, being the date on which a second offer of settlement was made;

(d)    10 May 2016, being the date on which a third offer of settlement was made;

(e)    6 June 2016, being the date on which the fourth offer of settlement was made; and

(3)    Ms Walsh seeks an order that the respondents jointly pay her costs.

4    Costs are in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 43. The discretion is to be exercised in a manner that best promotes the overarching purpose of the case management principles stated in s 37M of the FCA Act: see s 37M(2).

5    The Court may, among other things, make different awards of costs in relation to different parts of the proceeding (s 43(3)(b)), order the parties to bear costs in specified portions (s 43(3)(c)), or award costs in a specified sum (s 43(3)(d)). Costs are to be awarded for compensatory and not punitive purposes: Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at [37] (White J).

6    The “usual rule” is that a successful party is entitled to its costs: Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782 at [2] (Perry J); Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232 (Sheppard J). For the reasons that follow, I consider this to be an appropriate case in which to depart from the usual rule.

7    It is convenient to comment on some salient features of the litigation before turning to consider the settlement offers upon which the respondents rely.

8    Ms Walsh was represented by solicitors when she filed her originating application on 15 April 2015. The statement of claim did not give particulars of the quantum of damages sought by Ms Walsh against either respondent, nor did the pleading delineate between losses said to be attributable to the conduct of UTHSAC and losses said to be attributable to the conduct of Mrs Larkins. However, the pleading clearly delineated the act of victimisation for which the first respondent was liable (namely the suspension and termination of Ms Walsh’s employment) and the various acts of victimisation for which the second respondent was said to be liable. I am satisfied that by about August 2015, Ms Walsh’s solicitors had foreshadowed to the respondents that Ms Walsh would seek damages in the amount of $545,000.00, which included a component of $50,000.00 for exemplary damages (which are not available under the CATSI Act).

9    Ms Walsh terminated the services of her solicitors in January 2016 and was thereafter self-represented in the proceedings, including for the whole of the trial. The circumstance that Ms Walsh is a litigant in person does not relieve her of the obligation to pay costs if an order for costs is otherwise justified: Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 at [12] (Buchanan J).

10    The trial commenced on 27 June 2016 and proceeded over 10 days.

11    In its defence, UTHSAC successfully relied upon a statutory bar erected by s 725 of the Fair Work Act 2009 (Cth) (FW Act). The statutory bar was a complete answer to the claim against it. The bar was pleaded from the first iteration of UTHSAC’s pleading. It turned upon very few facts (none of which were ever in dispute) and the question of whether the bar arose did not otherwise depend on the outcome of any other disputed question. Submissions in relation to this aspect of UTHSAC’s pleaded defence were made in the course of closing submissions at the trial and consumed, on the Court’s estimation, no more than two hours of the total hearing time.

12    UTHSAC made no application for the issue arising under this aspect of its defence to be tried and determined separately on its merits, nor did it apply for summary judgment against Ms Walsh by reference to it. The success of this aspect of UTHSAC’s defence ultimately rendered it unnecessary to determine whether UTHSAC’s termination of Ms Walsh’s employment constituted an act of victimisation. Both UTHSAC and Ms Walsh ought fairly to have contemplated that the costs of that aspect of the proceedings might be wasted if UTHSAC’s reliance on the statutory bar was successful.

13    Considerable costs could have been saved had UTHSAC applied to have the statutory bar determined as a separate issue. It claims not to have done so because it sensed discouragement from another court at a directions hearing where it was said that UTHSAC should consider the utility in making a foreshadowed summary judgment application. The Court’s remarks do not amount to discouragement. The utility in making such an application was obvious, at least insofar as questions of efficiency and overall expense were concerned: s 37M(1)(B) FCA Act.

14    In any event, the statutory bar was not the only defence relied upon by UTHSAC. It could have confined its case to its reliance on s 725 of the FW Act but it did not. Together with Mrs Larkins, UTHSAC adopted a position at trial whereby it put Ms Walsh to proof on her allegation that she had made protected disclosures under the CATSI Act so as to qualify for protection from acts of victimisation. The respondents together ran a case to the effect that (without being exhaustive) Ms Walsh did not have the requisite reasonable suspicion that breaches of the CATSI Act had occurred and that, if disclosures had been made at all, Ms Walsh had not acted in good faith in making them.

15    The allegation that Ms Walsh had not acted in good faith was founded in part on a positive allegation as to certain events that had occurred in 2011 which, it was said, evidenced a malign intent on Ms Walsh’s part. In the course of the cross-examination of Ms Walsh and in their written and oral submissions the respondents asserted, wrongly, that Ms Walsh had paranoid tendencies and that she had illegitimately sought to interfere with the affairs of Mrs Larkins.

16    With one minor exception, all of these particular aspects of the respondents’ jointly run defence were unsuccessful. The allegation of bad faith, in particular, was rejected on the basis that the events that Mrs Larkins said in her evidence happened in 2011 did not happen. Not only were the disclosures made by Ms Walsh found (with one exception) to be protected disclosures, they were disclosures which UTHSAC had not investigated thoroughly and independently of the involvement of Mrs Larkins herself.

17    In many important respects, UTHSAC placed its faith in the testimony of its CEO Mrs Larkins and aligned its interests with hers in the proceedings. Its decision to do so weighs heavily in the Court’s discretion as to the costs of these significant parts of the action.

18    The act of victimisation proven against Mrs Larkins was one of a number of victimising acts alleged to have been committed by Mrs Larkins, or for which Mrs Larkins was said to be responsible. Three of the alleged acts were not made out because Ms Walsh failed to prove that the actions of others, assuming they occurred, were actions instigated or authorised by Mrs Larkins. The single act of victimisation proven against Mrs Larkins involved a contest of oral testimony. Ultimately, I have accepted Ms Walsh’s version of events in respect of the incident. The incident involved Mrs Larkins making a threat to have Ms Walsh’s husband killed in gaol. Although the arrest of Ms Walsh’s husband was not found to be an act of victimisation in its own right for which Mrs Larkins was responsible, the act of the Coober Pedy police in taking Ms Walsh’s husband into custody was a necessary contextual topic for evidence bearing on the later threat to have him killed while in custody.

19    Although Ms Walsh adduced evidence going to the question of whether the acts of the respondents had caused her to suffer economic loss, Ms Walsh failed to establish that any such loss was caused by the single act of victimisation ultimately proven in the proceedings.

20    As Ms Walsh properly acknowledged, any award of damages founded upon the termination of her employment was to be reduced having regard to awards of compensation she had already received in the nature of workers compensation payments and an award of damages made in earlier unfair dismissal proceedings. Accordingly, it was necessary in this action for Ms Walsh to establish significant economic loss in order for this claim to sound in an additional significant monetary award for economic loss.

21    Ms Walsh’s claim for economic loss involved the examination and cross-examination of two medical experts, consuming about half a day of the trial time.

22    The act of victimisation found against Mrs Larkins sounded in a small award of compensation for hurt and distress. The amount of the award does not reflect the seriousness of the conduct found against Mrs Larkins. Rather, it reflects the failure of Ms Walsh to establish that she was entitled to compensation for economic loss as a result of the victimisation and the circumstance that the award is compensatory in nature and not punitive. As I have mentioned, the CATSI Act makes no provision for an award of exemplary damages and the Court is to proceed on the basis that Ms Walsh must be taken to have borne that in mind when considering whether to accept the offers of settlement made by the respondents. In addition, it ought reasonably to have been in Ms Walsh’s contemplation that should UTHSAC successfully rely upon the statutory bar, the damages to which she might be entitled in the proceedings would be significantly reduced.

OFFERS

23    The respondents made three offers of settlement prior to the commencement of the trial and then a fourth offer after the trial had commenced.

24    The first offer was made on 2 December 2015. It was (or at least purported to be) in the form of an offer to compromise under r 25.01 of the Federal Court Rules 2011 (Cth). It relevantly provides:

25.01 Offer to compromise

(1)    A party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree).

(2)    The notice must not be filed in the Court.

…

25.14    Costs where offer not accepted

(1)    If an offer is made by a respondent and not accepted by an applicant, and the applicant obtains a judgment that is less favourable than the terms of the offer:

(a)    the applicant is not entitled to any costs after 11.00 am on the second business day after the offer was served; and

(b)    the respondent is entitled to an order that the applicant pay the respondent’s costs after that time on an indemnity basis.

…

25    The rule creates a rebuttable presumption in favour of an order for indemnity costs in accordance with its terms: Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [10].

26    The offer was made on behalf of the respondents jointly. It offered a sum of $95,000, inclusive of costs, interest and any applicable GST. It contained the following statement:

This offer is conditional upon the entry by the Applicant into an appropriate deed of release and discharge in favour of the First Respondent, Second Respondent and the directors, officers and employees of the First Respondent (both current and past) in relation to the subject matter of the proceeding.

27    The proposed term of the deed of settlement and release were not specified in the offer, except to the extent that the terms would include a term releasing and discharging the respondents and certain other persons who had not been joined in the action.

28    Ms Walsh, by her solicitors, communicated her “acceptance” of the offer on 14 December 2015. A proposed deed was not provided to Ms Walsh’s solicitors until 7 January 2016. As foreshadowed in the offer, the proposed deed contained a clause to the effect that Ms Walsh grant a release from liability to persons other than the respondents (cl 4). The recitals to the proposed deed included (at [I]) the following:

Walsh alleges that she called a meeting of the Board of Directors of UTHSAC on 2 April 2012 with the intention of giving the Board of Directors an opportunity to discuss with the Director of Clinical Services, Arelene Ackland, the details of her working remotely in Adelaide and to discuss all other issues raised by Walsh in her complaints.

29    Proposed cll 3.2 and 3.3 provided:

3.2    Without limiting the generality of the release and discharge referred to in clause 4 hereof, Walsh will make no further claim upon:

3.2.1    UTHSAC;

3.2.2    Larkins;

3.2.3    Patrick Larkins;

3.2.4    any former or current employees, board members, representatives and/or agents of UTHSAC and Larkins;

3.2.5    any of the abovementioned persons’ legal representatives,

in respect of any matter that is directly or indirectly related to the Action, Claims or Disputes.

3.3    Without limiting clause 3.2, above Walsh, will not directly nor indirectly lodge or make any complaint, or present any information or allegations against or involving any of the persons set out in clause 3.2, to any tribunal, commission or commissioner, ombudsman, regulatory, governmental or quasi-governmental body, such as, but not limited to, the Australian Securities and Investment Commission, the Office of the Registrar of Indigenous Corporations, the Independent Commissioner Against Corruption, the Australian Competition and Consumer Commission, South Australia Police or the Fair Work Commission, regarding any acts, conduct, practices, or policies of, or in relation to the persons those persons, and whether directly, anonymously or pseudonymously, or on an alleged ‘whistleblower’ basis.

30    The proposed deed also contained terms to the effect that no party would disparage the other.

31    After reading the proposed terms of the proposed deed, Ms Walsh terminated the services of her solicitors, and on 19 January 2016 she notified the respondents’ solicitor that she acted for herself in the proceedings.

32    On the basis of her affidavit evidence, I find that Ms Walsh subjectively believed the proposed deed to contain terms that were unreasonable, for at least three reasons.

33    First, Ms Walsh took issue with the recital in [I] which, she submits, contained a misstatement of her actual allegations. She considered that if she entered into a deed containing such a recital, her interests in an ongoing dispute concerning her workers’ compensation entitlements would be prejudiced. For present purposes it is sufficient to note that it was the respondents themselves that had alleged that Ms Walsh had been instrumental in arranging the meeting referred to in the recital. That allegation was a critical plank in the respondents’ argument that Ms Walsh was terminated for serious and wilful misconduct in connection with the meeting, and not by reason of her having made protected disclosures. Ms Walsh has always denied the respondents’ allegation that she had instigated the meeting.

34    Second, Ms Walsh considered that a non-disparagement clause would not be in her interests because she was aware of other persons in the Coober Pedy community who were publicly critical of UTHSAC and Mrs Larkins. She feared that allegations of breach of the disparagement clause would too readily be levelled against her by the respondents in relation to disparaging remarks that might be made by other persons with whom she was associated.

35    Third, Ms Walsh considered the proposed cl 3.3 to be a term that wrongly sought to prohibit her from bringing to the attention of regulatory authorities the information forming the subject matter of her disclosures or any other information bearing upon the proper governance of UTHSAC or, for that matter, the conduct of the Coober Pedy police. She considered such a proposed term to be “corrupt”.

36    As a consequence, Ms Walsh would not agree the terms of the proposed deed upon which the offer of settlement was conditioned. On 27 January 2016 Ms Walsh advised the respondents that the offer of settlement was rejected. The respondents invite the Court to find that Ms Walsh “reversed her position” in relation to this offer because she had originally accepted it in December. I will deal with that contention shortly.

37    The second offer was made verbally in the course of informal without prejudice discussions on 27 January 2016 between the respondents’ solicitor, Ms Walsh and her husband Mr Naumovic. The discussions concerned both the monetary sum and the terms of any proposed deed upon which payment might be conditional, although the respondents’ solicitor attempted obtain an in principle agreement as to a monetary sum before turning to the terms attaching to it. The respondents’ solicitor ultimately made an offer of settlement on behalf of the both respondents in the amount of $105,000.00.

38    I find that Ms Walsh (or Mr Naumovic on her behalf) persisted with her objection to the proposed deed, at least insofar as it contained the proposed term at cl 3.3 restricting her ability to make a wide range of complaints or disclosures to certain regulatory authorities. Ms Walsh (or Mr Naumovic on her behalf) told the respondents’ solicitor that they would be providing a copy of the proposed deed “to the authorities” on the basis that the proffering of such a term amounted to corrupt behaviour.

39    The third offer is contained in a letter dated 10 May 2016. It is an offer said to have been made in accordance with the principles stated in Calderbank v Calderbank [1975] 3 All ER 333. It expressed an offer of payment of $95,000, to be paid within 14 days of the execution of “an appropriate deed of settlement and release”. The proposed terms of the deed of settlement are not set forth in the letter. It appears the offer was rejected by Ms Walsh in a telephone conversation on 10 May 2016.

40    The fourth offer was made by email of 6 July 2016 after the commencement of the trial. The email proposed that the matter settle on the basis that each party bear their own costs.

41    I reject the respondents’ characterisation of Ms Walsh’s conduct as constituting a “reversal of position” in respect of the first offer. There might have been some strength in that submission had the proposed deed contained terms limited to the terms set forth or fairly foreshadowed on the face of the offer itself. But that was not what was in fact proposed by the respondents. As at 2 December 2015, the offer was illusory because the conditions attached to it were not known and it was not therefore capable of acceptance at that time. The offer was made capable of acceptance on or around 7 January 2016 when the proposed deed was sent to Ms Walsh’s solicitors. It was rejected by Ms Walsh not because of the amount of the settlement sum but because of the terms attaching to its payment.

42    It is to be borne in mind that Ms Walsh had in fact been the subject of an act of victimisation by Mrs Larkins closely connected with the activities of the South Australia Police in Coober Pedy, of which Mr Larkins was a member. Having regard to the nature of the proceedings, it was not unreasonable for Ms Walsh to reject an offer that would have prevented her from making disclosures or complaints to regulatory authorities in respect of the widely defined subject matter set out in the proposed clause. It is difficult to identify how the legitimate interests of UTHSAC or Mrs Larkins, or Mr Larkins, or, for that matter, the public, could be advanced by the inclusion of such a term. At the very least, the term is inconsistent with the objectives of the CATSI Act and the public interest in suspected wrongdoing in relation to UTHSAC being reported to appropriate authorities for investigation.

43    I am satisfied that Ms Walsh did not act unreasonably in assuming that the second, third and fourth offers were made conditional upon a deed that was to include the same terms as those conditioning the first offer. The subsequent monetary offers were as uncertain as the first in that they did not specify the terms that would attach to the payment. From at least 27 January 2016, the respondents were aware that at least cl 3.3 of the proposed deed was highly objectionable to Ms Walsh and yet they did state that a term to the same effect would not attach to the payment of the subsequent settlement sums offered. Whilst it is true that Ms Walsh might have made a counter offer not including the objectionable terms, for present purposes I am concerned only with the respondents’ claim to be entitled to indemnity costs because Ms Walsh impudently rejected each of their offers. Viewed in all of the circumstances, her refusals were not impudent as alleged.

44    In addition to the findings I have already made, it was not impudent for Ms Walsh to have rejected the fourth offer, made as it was at a time when the trial had already commenced and in light of the circumstances of Ms Walsh being a self-represented litigant burdened at that time with the responsibility of presenting a victimisation case without the assistance of legal representatives. Ms Walsh ultimately obtained a result against Mrs Larkins that was better than the fourth offer in any event. It was not unreasonable for her to refuse to settle with UTHSAC given that the settlement was subject to her also settling with Mrs Larkins.

45    Reliance was placed by the respondents on Ms Walsh’s conduct in making a counter offer of $2.6 million about ten days before the trial commenced. The respondents submit (and I accept) that that offer bore no rational relation to Ms Walsh’s pleaded case. From there, the respondents invite the Court to infer that Ms Walsh was not genuinely concerned with the terms of the proposed deed because she was intent upon proceeding to trial for purposes other than her legitimate interests in obtaining an award of compensation under s 469-10 of the CATSI Act. Ms Walsh, the respondents submit, sought to use the proceedings as the means of conducting something of a royal commission into the affairs of UTHSAC, the members of its Board and their associates. She would not, they submit, have settled on any terms.

46    I reject these submissions for two reasons. First, Ms Walsh had demonstrated in December 2015 that she was in fact prepared to accept a payment in the amount of $95,000.00 subject to appropriate terms. Clearly, the obstacle to settlement at that time was the proposed deed and it was not, as I have said, unreasonable for Ms Walsh to refuse to settle on the conditions proposed in it.

47    Second, on the basis of the evidence given by Ms Walsh at the trial and on the present applications, I infer that Ms Walsh proceeded to trial for purposes in addition to securing an award of compensation; however, her additional purposes were not inconsistent with the CATSI Act, nor were they otherwise improper. The additional purposes included vindication of her position in her long-running dispute with the respondents, particularly in relation to the information she had disclosed about Mrs Larkins and her belief (reasonably held) that her disclosures had not been independently investigated by those responsible for ensuring UTHSAC’s proper governance. In addition, from shortly after the commencement of the trial, Ms Walsh’s purposes included answering recently introduced and potentially harmful allegations that she had acted in bad faith. Ms Walsh, I find, had a campaign mindset to the extent that she believed (not unreasonably) that UTHSAC’s Board had not taken her disclosures seriously, either because its members were conflicted, or inept, or both. That was, I find, a legitimate subject matter for trial because the respondents themselves had positively pleaded that the disclosures had been investigated independently of the involvement of Mrs Larkins. Ultimately, Ms Walsh sought the benefit of a judgment to the effect that her disclosures were protected disclosures, that she had not been protected by the Board of UTHSAC in respect of them and that she had been victimised by Mrs Larkins, including by way of a threatened misuse of powers by the Coober Pedy Police.

48    The circumstance that Ms Walsh had multiple motivations for persisting with the litigation does not, in all of the circumstances, support a finding that she did not otherwise bona fide commence and continue the action for the purpose of securing an award of compensation for victimisation and the benefit of the reasons for judgment explaining the factual basis upon which (especially) the second respondent’s liability was founded.

49    Moreover, I would not make an order that Ms Walsh pay the respondents’ costs on an indemnity basis by reason that Ms Walsh, in the respondents’ submission, chose to “capriciously terminate” a mediation before a Registrar of the Court on 5 September 2015, thus demonstrating an “unwillingness to engage in meaningful attempts to resolve the matter in good faith”. It is true that parties attending at mediation “must attend for the purpose of participating in good faith negotiation”, as to which see Central Practice Note CPN-1 at [9.5]. In this case, the parties were referred to mediation by an order of the Court and yet the respondents did not make any previous complaint that Ms Walsh had not participated in good faith negotiation before the Registrar, as she was obliged to do. In determining a subsequent application for costs, the Court should not indulge in a forensic backward looking analysis of the parties’ conduct in a confidential mediation process more than two years after the event, unless there are compelling reasons to do so. If a party to a mediation takes the view that another party is not negotiating in good faith, then that is a matter to be reported to the officer conducting the mediation and ultimately to a judge of the Court so that the allegation, being a serious one, may be immediately dealt with.

Other relevant factors

50    In exercising the discretion to award costs, the Court may take account of whether a person has taken genuine steps to resolve the dispute and filed a genuine steps statement in accordance with the provisions of the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) Whether a person has taken genuine steps to resolve a dispute is to be assessed having regard to the person’s circumstances and the nature and circumstances of the dispute: s 4 of the CDR Act. For the respondents it is argued that Ms Walsh did not comply with the provisions of the CDR Act before or after commencing the proceedings.

51    The requirements of the CDR Act do not weigh heavily in the balance in this case. Whilst Ms Walsh did not particularise the quantum of her alleged damages until some months after the action was commenced, I do not consider that delay to have had any substantive bearing on the prospects of the matter settling.

52    The failure of Ms Walsh to make a counter offer is a relevant consideration, however in the detailed affidavit material relied upon by UTHSAC in support of its application for costs, nowhere is it said that UTHSAC would have agreed to terms of settlement that did not contain a term such as that contained in cl 3.3 of the proposed deed. Moreover, while UTHSAC was correct in forewarning Ms Walsh about the strength of its case on the statutory bar, UTHSAC did not confine its case (and therefore its expenditure) to that issue. Together with Mrs Larkins, UTHSAC put Ms Walsh to proof on nearly every aspect of her case.

53    If there has been a failure by Ms Walsh to strictly comply with the requirements of the CDR Act I do not consider the failure to have had any significant consequences so as to justify the discretion as to costs being exercised differently than it otherwise would be in relation to either respondent.

54    Finally, it should be noted that the award of damages made in the proceeding falls well below the amount specified in r 40.08. It provides:

Reduction in costs otherwise payable

A party other than in a proceeding under the Admiralty Act 1988 may apply to the Court for an order that any costs and disbursements payable to another party in the proceeding be reduced by an amount to be specified by the Court if:

(a)    the applicant has claimed a money sum or damages and has been awarded a sum of less than $100,000; or

(b)    the proceeding (including a cross-claim) could more suitably have been brought in another court or tribunal.

55    The respondents submit that, by reason of the amount of damages ultimately awarded, the action is one that should more suitably have been brought in another court, namely the small claims jurisdiction of the Magistrates Court of South Australia. In that instance, the submission goes, no party would have been entitled to legal representation as of right and the costs would accordingly have been greatly reduced.

56    As I have mentioned, the damages awarded to Ms Walsh are significantly less than the amount claimed. That result is explained in large part by the failure of Ms Walsh to show a causal connection between the proven act of victimisation and any personal injury or consequent economic loss, together with the circumstance that UTHSAC succeeded in its defence founded on s 725 of the FW Act. It does not follow, however, that the proceeding could more suitably have been brought in another court or tribunal. I particularly reject the respondents claim that the action was one more properly tried in the small claims division of the Magistrates Court of South Australia. The respondents presumably seek to have their costs assessed on the basis that the matter was fit for senior counsel and, having regard to the nature and number of matters disputed by the respondents, I reject the hypothesis that the matter would have proceeded in the Magistrates Court without the parties applying for leave to be represented by senior counsel, as they were in this Court.

57    Whilst it is true that Ms Walsh obtained an award of damages far below the amount of $100,000, I do not consider this to be a proper case for the reduction of any costs that might be payable to Ms Walsh by either respondent. A good proportion of the costs to be awarded to Ms Walsh are attributable to the circumstance that she was put to proof on her allegation that she made protected disclosures. There should be no reduction in the costs payable to her in respect of that issue merely because she did not ultimately achieve a significant damages award.

Orders

58    In all of the circumstances, it is preferable to adopt a pragmatic approach so that the parties’ respective cost liabilities broadly reflect the conduct of the trial and the varying outcomes of the issues determined in the proceedings. The following comments are to be understood as a non-exhaustive list of matters upon which the global orders are based:

(1)    Costs should be quantified on a party-party basis and my references below to “total” costs should be so understood.

(2)    The orders will reflect an assumption that the costs of the two jointly-represented respondents are to be apportioned in equal amounts between them. Similarly Ms Walsh’s total costs are attributable to her case against each respondent in equal parts.

(3)    It may fairly be assumed that the proportions of the parties’ total costs of preparing for trial in respect of a particular issue is the same as the proportion of time devoted to the issue at trial.

(4)    It is not to be assumed that Mrs Larkins has any entitlement to be indemnified by UTHSAC in respect of her costs liabilities. The basis of the claim against Mrs Larkins is not one that could readily be identified as giving rise to any right of indemnity on Mrs Larkins’ part vis a vis UTHSAC in respect of her liability to pay Ms Walsh’s damages or costs. Accordingly, orders that the first and second respondents be jointly liable for any portion of Ms Walsh’s costs will not be made.

(5)    Ms Walsh should pay UTHSAC’s costs attributable to it establishing the legal propositions upon which the statutory bar depended.

(6)    Ms Walsh should pay the respondents’ costs in respect of her claim to have suffered economic loss occasioned by personal injury, including her costs of adducing expert evidence.

(7)    Ms Walsh and UTHSAC should bear their own costs of that part of the proceedings attributable to the undecided question of whether the termination of Ms Walsh’s employment was an act of victimisation.

(8)    UTHSAC should bear its own costs of joining in a defence to the effect that the disclosures were not reasonably made and were otherwise made in bad faith. That issue consumed a considerable portion of the trial time. UTHSAC and Mrs Larkins should compensate Ms Walsh for her costs attributable to that part of the trial.

(9)    Mrs Larkins should pay Ms Walsh’s costs attributable to the claim against her with a moderate reduction to reflect those parts of the claim that did not succeed.

(10)    As Ms Walsh was a self-represented litigant for a large part of the history of the action, it cannot be assumed that her actual costs equate to those of the respondents. Accordingly, there will be no offsetting of a kind that might ordinarily be made where the parties overall costs may be fairly assumed to be the same.

59    In light of all of the foregoing, it is appropriate that:

(1)    Ms Walsh be ordered to pay 20% of UTHSAC’s total costs

(2)    UTHSAC be ordered to pay 20% of Ms Walsh’s total costs.

(3)    Mrs Larkins be ordered to pay 40% of Ms Walsh’s total costs.

60    Two further matters should be mentioned.

61    On 15 June 2016, the Court ordered Ms Walsh to pay the respondents’ costs of an interlocutory application dated 3 June 2016 (being an application for leave to file a further amended statement of claim). The amendments affected only the case against Mrs Larkins. No amendment was made to the pleaded case against UTHSAC. It is appropriate that that order be revoked and substituted with an order that Ms Walsh is to pay Mrs Larkins’ costs of that application, certified fit for counsel. These reasons for judgment should not otherwise be understood to affect any liability of a party to pay costs in accordance with any previous order of the Court.

62    Finally, I consider it appropriate that the enforcement of any order for costs against Ms Walsh to the benefit of either respondent be stayed pending the payment of any costs owing to her by either of them, and pending the payment of the award of damages specified in Walsh at [248]. In light of the findings that have been made in the action, the Court is not confident that UTHSAC would act independently of the instructions or urgings of Mrs Larkins insofar as the enforcement of orders is concerned. Accordingly, it should not have the benefit of any costs order until Mrs Larkins has discharged her own liabilities to Ms Walsh.

Associate:

Dated:    9 October 2017