FEDERAL COURT OF AUSTRALIA

Cook v Australian Postal Corporation (No 2) [2018] FCA 390

ORDERS

THE COURT ORDERS THAT:

1.    Subject to Order 2, the Applicant should pay the costs of the First Respondent as from 23 March 2017.

2.    Order 1 is stayed pending the resolution by the Full Court of the Notice of Appeal as filed on 2 March 2018.

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

REASONS FOR JUDGMENT

1    Judgment in this matter was delivered on 14 February 2018: Cook v Australian Postal Corporation [2018] FCA 81. The proceeding was then dismissed but the question of costs was reserved.

2    It is concluded that the Applicant, Mr Quentin Cook, should be ordered to pay the costs of the First Respondent, the Australian Postal Corporation, as from 23 March 2017 when an offer of compromise was made.

3    For the purposes of s 570(2)(b) of the Fair Work Act 2009 (Cth), it is concluded that the First Respondent has incurred costs caused by the “unreasonable act or omission” of Mr Cook, namely his decision not to accept the offer.

4    It was common ground that a decision not to accept a reasonable offer of compromise may fall within s 570(2)(b).

5    Although a decision not to accept an offer of compromise may not in all cases of itself occasion an exercise of the discretion to award costs, the facts and circumstances of the present case are such as to warrant an order being made. The factors which have led to that conclusion include:

    not only the difficulties normally confronting any applicant seeking to challenge a decision of the Full Bench of the Fair Work Commission refusing permission to appeal;

but also:

    the difficulties peculiar to Mr Cook’s Application, namely the fact that the Commissioner had concluded that an order should be made for the payment of compensation but that an order should not be made for reinstatement.

The additional factors relied upon also include:

    the fact that Mr Cook commenced his proceeding in November 2016 but by February/March 2017 he had not filed any material identifying the errors sought to be canvassed before this Court; and

    the fact that Mr Cook had been extended a further opportunity following the Directions Hearings held on 20 February 2017 and 13 March 2017 to identify the errors he sought to rely upon and had failed to do so. It was thereafter that the offer of compromise was made on 23 March 2017.

It is the culmination of these factors rather than any one or other of them which has led to the conclusion that costs have been incurred by the “unreasonable act or omission” of Mr Cook. The simple fact is that by 23 March 2017 when the offer of compromise was made the First Respondent remained substantially uninformed as to the case it had to meet.

6    Some consideration has been given to confining an order for costs as from 23 March 2017 – but only up to a point of time when the case came back “on track”, that is, that point in time when the issues to be resolved could be identified with some degree of precision. But the making of such a confined order is not considered appropriate because the conduct of Mr Cook’s case even thereafter caused the First Respondent to incur costs by reason of:

    the further amendment to the notice given under s 78B of the Judiciary Act 1903 (Cth) made late in the proceeding, namely on 19 July 2017 and the day before the originally scheduled hearing date. That Notice, it may be noted, was the third such Notice as had been served on the Attorneys-General; and

    the necessary vacation of the hearing otherwise set down for 20 July 2017.

7    There was, moreover – and separate from any consideration that may be given to the issues arising under the Constitution which were sought to be raised by the s 78B Notices – a failure on the part of Mr Cook to progress the balance of his case in an orderly fashion. There was thus, for example:

    a failure to comply with directions made on 13 July 2017 for the filing of an Application Book; and

    the filing on behalf of Mr Cook of “Revised Submissions” on 20 July 2017 in circumstances where no order was made for the filing of revised submissions, the submissions filed were not “in reply” and were submissions seeking in substance to advance a very different case to the one originally canvassed by Mr Cook at the outset.

8    Contrary to the submission advanced on behalf of the Applicant that no order should be made because (inter alia) the February 2018 decision has “foreclosed the possibility that competition under the law for the provision of workplace industrial representative services to workers is an available alternative to that provided by traditional trades unions”, it is respectfully considered that the February 2018 decision neither:

    precludes that possibility;

nor:

    raised any question arising under the Constitution.

Mr Cook in the Application filed in this Court did not raise any question which ultimately turned upon anything other than his own peculiar circumstances.

9    Notwithstanding the reasons for concluding that an order for the payment of costs should be made, the First Respondent has – with respect – failed to identify any reason why costs should be paid (as sought) on an indemnity basis.

THE ORDERS OF THE COURT ARE:

1.    Subject to Order 2, the Applicant should pay the costs of the First Respondent as from 23 March 2017.

2.    Order 1 is stayed pending the resolution by the Full Court of the Notice of Appeal as filed on 2 March 2018.

Associate:

Dated:    23 March 2018