FEDERAL COURT OF AUSTRALIA

Thomas v University of Melbourne (No. 5) [2020] FCA 534

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the University of Melbourne fixed in the sum of $45,000.

2.    The order for costs made above is concurrent with the orders made in VID950 of 2018 and VID1407 of 2018, so that under the orders made this day across the three proceedings the University may not recover more than the total sum of $45,000.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the University of Melbourne fixed in the sum of $45,000.

2.    The order for costs made above is concurrent with the orders made in VID738 of 2018 and VID1407 of 2018, so that under the orders made this day across the three proceedings the University may not recover more than the total sum of $45,000.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the University of Melbourne fixed in the sum of $45,000.

2.    The order for costs made above is concurrent with the orders made in VID738 of 2018 and VID 950 of 2018, so that under the orders made this day across the three proceedings the University may not recover more than the total sum of $45,000.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    On 4 November 2019, the Court dismissed as an abuse of process four proceedings commenced in this Court by Mr Darron Thomas: Thomas v University of Melbourne (No. 4) [2019] FCA 1798 (Thomas No 4).

2    The subject matter of the four proceedings was described in Thomas v University of Melbourne [2018] FCA 1978 at [6]-[28]. The proceedings concerned a range of allegations that Mr Thomas made in relation to the University of Melbourne, its staff, its agents, the Australian Human Rights Commission, and many other people, which stemmed from Mr Thomas’s unsuccessful candidature in a PhD program in the University’s Department of Finance within the Faculty of Business and Economics.

3    Mr Thomas’s conduct of the proceedings was a matter of serious concern. In Thomas No 4 at [38], I described his conduct as a manifestation of an entrenched pattern of querulous behaviour. In particular, at [4]-[16], I described Mr Thomas’s conduct at an interlocutory hearing on 1 February 2019 which resulted in the Court ordering that Mr Thomas be removed from the Court building, and directing that future applications would be heard on the papers. Mr Thomas’s four proceedings were dismissed as an abuse of process because in light of Mr Thomas’s conduct, I held a high degree of confidence that while the proceedings remained on foot, Mr Thomas would systematically attempt to abuse the processes of the Court, to reject the authority of the Court, to attempt to file prolix documents, to make scurrilous allegations, and to attempt to use the proceedings to vex the respondents, and other persons such as their legal representatives, his former lawyers, and the Legal Services Commissioner, who were not parties to the proceedings: see Thomas No 4 at [28]-[39].

4    Upon dismissal of the four proceedings, the Court made orders permitting the parties to file and serve submissions and affidavit material in respect of the costs of the proceedings.

5    The University is a respondent to three of the four proceedings, and seeks a global costs order across the three proceedings, to be assessed by the Court in a lump sum. The University claims that it has incurred costs of some $110,000, but seeks an order that its costs be assessed in the lump sum figure of $50,000. I conclude from Mr Thomas’s written material in response that he opposes that course.

6    Of the three proceedings to which the University is a respondent, in one of the proceedings, VID 950 of 2018, Mr Thomas makes claims that include alleged contraventions by the University of several provisions of the Fair Work Act 2009 (Cth). In relation to costs, s 570 of the Fair Work Act provides (inter alia) –

570    Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

…

7    Under s 570, a party to a proceeding in relation to a matter arising under the Fair Work Act may be ordered by the Court to pay costs incurred by another party only in the circumstances provided for by the legislation. One of those circumstances is if the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause: s 570(2)(a).

8    The application by the University for its costs gives rise to three issues –

(1)    should a costs order be made in favour of the University against Mr Thomas in each of the three proceedings, including VID 950 of 2018, in which Mr Thomas sought to invoke provisions of the Fair Work Act;

(2)    should a global lump sum costs order be made, as submitted by the University; and

(3)    if so, in what amount should the University’s costs be assessed?

Should a costs order be made?

The University’s submissions – should a costs order be made?

9    In relation to proceedings VID 738 of 2018 and VID 1407 of 2018, the University submitted that there was no reason why there should be any departure from the ordinary rule that costs follow the event.

10    In relation to proceeding VID 950 of 2018, the University submitted that the Court should be satisfied that Mr Thomas instituted that proceeding vexatiously, or without reasonable cause, thereby engaging s 570(2)(a) of the Fair Work Act. In advancing its submission that Mr Thomas commenced proceeding VID 950 of 2018 vexatiously or without reasonable cause, the University submitted that the causes of action alleged by Mr Thomas were premised upon an allegation that he was at relevant times a national system employee within the meaning of s 13 of the Fair Work Act. The University submitted that Mr Thomas was not at any material time an employee of the University.

11    In his originating application filed 7 September 2018, Mr Thomas made the following claim –

Employee/Employment details

The Applicant commenced employment on 12 August 2013, working as a Research Trainee toward a PhD in Finance at;

Work Station 11P,

Level 11,

The Spot Building,

198 Berkeley Street,

Carlton VIC 3053.

The employment ended on 30 May 2018. A copy of the notice of termination is attached in four (4) parts as follows:

12    Mr Thomas then included in his application extracts of email communications passing between him and officers of the University. By an email dated 29 May 2018, Mr Thomas advised the University that he was withdrawing his candidacy as a PhD student/research trainee. By its first response dated 29 May 2018, the University requested Mr Thomas to confirm that he wished to proceed with the cancellation of his candidature. By an email dated 29 May 2018 to the University, Mr Thomas confirmed that the University should proceed with the cancellation of his candidature. By an email to Mr Thomas dated 30 May 2018, the University advised that the cancellation of his enrolment would be processed.

13    The claims that Mr Thomas made in his originating application of 52 pages in VID 950 of 2018 were manifold, dense, and lacked coherence. They included numerous allegations of contravention of the Fair Work Act. The first paragraph of the originating application commenced as follows –

In breach of Part 3-1 of the Fair Work Act 2009 == including, but not limited to, s340, s365 and s386 FWA 2009 -- I was forced to resign from my position as Research Trainee/PhD Candidate at the University of Melbourne. The forced resignation is the result of an ongoing attempt to cause my candidacy to lapse while I have no opportunity to work - FORCED RESIGNATION. Under the University of Melbourne's Graduate Research and Training Policy (GRTP), PhD advisors must approve all steps/milestones toward a research trainee's completion of a PhD degree. To protect students from conflicts which may cause supervisors to compromise a research trainee's progress s4.20 of the GRTP requires that if conflict arises between a research trainee/PhD student and supervisors/advisory committee members, those supervisors/advisory committee members should not continue in their role as supervisor of said student. At least ten (10) persons, over the course of at least eighteen (18) months were involved in taking adverse action against me and denying me workplace rights. These adverse actions and workplace rights denials included failure to remove supervisors with whom it was clear that conflict had arisen. The conflict with these supervisors was clear because I had either filed internal Complaints or, Complaints with the Australian Human Rights Commission which listed/implicated them as respondents. Specifically, I am applying for a Serious Contravention in accordance with s.5578(1)- Corporation - s.557A(6). Under subsection s.539(2) the serious contravention is a systematic use of the system of work to engage in acts which denied me workplace rights and are adverse actions under the Fair Work Act (FWA) 2009. At least ten (10) persons over the course of at least eighteen (18) months were involved in taking adverse action against me and denying me workplace rights. Furthermore, officers of the University of Melbourne used the system of work to undermine me in a pattern of bullying involving at least ten (10) persons over the course of at least eighteen (18) months. …

14    The application also referred to a claim for damages –

I claim damages for pain and suffering and pecuniary loss from the University of Melbourne & Others for a psychiatric injury I have sustained in the course of my employment by the University of Melbourne & Others. I allege that the negligence of the University of Melbourne & Others has caused injury by exposing me to an unsafe workplace in which I was subject to Racial Discrimination, bullying, harassing, and intimidating conduct.

15    Other allegations were directed to breach of University policies. However, it was not clear whether these allegations were made in support of the claimed contraventions of the Fair Work Act and denial of alleged workplace rights, alleged bullying, and alleged discrimination, or on some other basis. Finally, there were references in the originating application to provisions of the Work Health and Safety Act 2011 (Cth).

16    On the application for costs, the University relied upon affidavit material that it filed in support of an application for summary judgment, which was not ultimately heard by reason of supervening events. The tenor of that affidavit material was that, while Mr Thomas had been enrolled in a PhD program as a student, he was not employed by the University as a “research trainee”. The only employment of Mr Thomas by the University was as a tutor from time to time under six fixed-term contracts of casual employment, which the University produced. The term of the last of those contracts ended on 3 March 2016, which was more than two years before Mr Thomas withdrew his candidature as a PhD student. The University also produced spreadsheets indicating the hours worked by Mr Thomas during his periods of casual employment with the University, which show that Mr Thomas last worked for the University on 22 October 2015.

Mr Thomas’s submissions – should a costs order be made?

17    Mr Thomas filed an outline of submissions dated 11 December 2019 in which he opposed the University’s application for an order for costs, and an affidavit dated 11 December 2019 which, including annexures, comprised 386 pages.

18    Mr Thomas’s written submissions were characterised by invective. Throughout his submissions, he used derisive language when referring to the Court, the legal practitioners for the University, and other persons identified in the submissions. As the submissions were calculated to scandalise the Court, I shall not give effect to Mr Thomas’s purpose by setting out any of that language. Within the written submissions, the following matters appeared to be advanced by Mr Thomas –

(1)    Mr Thomas described the orders made by the Court on 4 November 2019 as being fraudulent;

(2)    Mr Thomas submitted that a case should be stated, or a question should be reserved, for consideration of the Full Court;

(3)    Mr Thomas submitted that there should be a stay of execution of any orders until after he had pursued appeals, contempt of court proceedings, and a foreshadowed appeal to the High Court of Australia;

(4)    Mr Thomas claimed that the costs of the proceedings should be costs in the appeals;

(5)    in relation to the quantification of costs, Mr Thomas claimed that the University’s solicitors should provide itemised bills which contain more detail and dates; and

(6)    Mr Thomas requested that a hearing should take place in relation to the assessment of the University’s costs, or alternatively, that the assessment of costs should be undertaken by an expert.

19    Mr Thomas’s affidavit dated 11 December 2019 annexed a range of documents across a number of proceedings in this Court, the Supreme Court of Victoria and the High Court of Australia. The documents compromised several prolix sets of submissions and other documents prepared by Mr Thomas in pursuit of his grievances against the University, his former lawyers, the Legal Services Commissioner, the Victorian Civil and Administrative Tribunal, the Supreme Court of Victoria, this Court, and the High Court of Australia. He annexed correspondence and decisions of the High Court of Australia and the Supreme Court of Victoria, by which documents that he presented for filing were rejected. All of these submissions have a manic quality about them which is consistent with Mr Thomas’s behaviour in the proceedings in this Court, to which I referred in Thomas No 4.

20    Mr Thomas did not make any submissions, or adduce any evidence, directed to the University’s claim that he was not at any time material to his claim an employee of the University, with the consequence that proceeding VID 950 of 2018 was instituted vexatiously or without reasonable cause.

Consideration – should a costs order be made?

21    In relation to VID 738 of 2018 and VID 1407 of 2018, the costs of those proceedings should follow the event: see, Northern Territory of Australia v Sangare [2019] HCA 25; 265 CLR 164 at [25]. There is no reason to defer consideration of the University’s application for costs pending Mr Thomas’s pursuit of various avenues of appeal, and there is no occasion to state or reserve any question for consideration by the Full Court.

22    In relation to the costs of proceeding VID 950 of 2018, I am satisfied that Mr Thomas instituted that proceeding vexatiously. In my reasons for judgment of 4 November 2019, at [38], I referred to Mr Thomas’s attempts to abuse the processes of the Court by filing prolix documents, and making scurrilous allegations, and attempting to use proceedings to vex the respondents and other persons.

23    In proceeding VID 950 of 2018, Mr Thomas filed an application of 52 pages in length dated 2 August 2018, and a statement of claim of 49 pages in length dated 9 October 2018. The originating application named the University “and Others” as the respondent, but no other parties were named in the schedule to the application. By his statement of claim, Mr Thomas alleged that at least 25 persons, over the course of at least 18 months, were involved in taking adverse action against him and denying him workplace rights. The statement of claim made a series of confusing, high level allegations against a number of members of the University’s staff. The statement of claim was prolix, and it would not have survived an application to have it struck out.

24    On 9 October 2018, Mr Thomas presented to the Registry of the Court an amended originating application under the Fair Work Act alleging discrimination. This document comprised 248 numbered pages and was also prolix. By a letter received by the Court on 9 October 2018, Mr Thomas requested that he be permitted to amend the originating application in proceeding VID 950 of 2018, including by identifying additional respondents. In his letter to the Court, Mr Thomas stated (inter alia) –

In the current file submitted and accepted by the Federal Court of Australia, VID950/2018, only the University of Melbourne is named as a Respondent. However, throughout the document, several other parties are named as culpable persons. I wish to amend my application to explicitly include those persons as Respondents. The Federal Court of Australia Rule that affords me the opportunity to file the request for leave to file these amendments for orders against the AHRC falls under s.8.21(1)(a) -- to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding. Furthermore, these orders are also sought:

1.    Under s.8.21(1)(g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant;

2.    Under s.8.21(1)(g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:(ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

25    The draft amended originating application submitted by Mr Thomas to the Court did not identify any additional respondents, although it continued to name the respondent as the University “and Others”.

26    At the first case management hearing on 30 October 2018, I informed Mr Thomas that the existing respondent to proceeding VID950 of 2018, namely the University, was entitled to be heard on the questions whether Mr Thomas should have leave to amend his application, and to add additional respondents to the proceeding. On that occasion, I made directions for Mr Thomas to file and serve any application for leave to amend the originating application or to add parties by 4.00pm on 13 November 2018.

27    On 13 November 2018, Mr Thomas presented to the Court another draft amended originating application under the Fair Work Act. He also filed an affidavit, which together with annexures comprised 307 pages, and presented a draft amended statement of claim of 61 pages. The draft amended statement of claim contained a “schedule of respondents” which, including the University, listed 42 respondents. The respondents who were named included the State of Victoria, the Commonwealth of Australia, the Victorian Legal Services Board and Commissioner, Mr Thomas’s former lawyers, officers of the Australian Human Rights Commission, and the Fair Work Ombudsman.

28    Mr Thomas’s interlocutory application to amend his originating application and statement of claim and to add parties was not heard by the Court by reason of the supervening events that occurred on 1 February 2019, which ultimately led to the summary dismissal of the proceeding.

29    Having regard to the sequence of documents referred to above it is plain that, from the outset of this proceeding, Mr Thomas set out to make allegations of the broadest kind so as to vex various persons against whom he had grievances. I infer from the contents of Mr Thomas’s prolix application, statement of claim, and his attempts to bring numerous other parties into the proceeding, that he possessed this collateral purpose at the time he instituted the proceeding.

30    Further, I am persuaded that Mr Thomas did not have a reasonable basis to allege that he was relevantly employed by the University, so as to engage the provisions of the Fair Work Act on which he relied. I find on the evidence that Mr Thomas was only ever employed by the University as a tutor on fixed term contracts of casual employment. Mr Thomas last performed work in that role on 22 October 2015, and the last of those contracts ended on 3 March 2016. There is no evidence that Mr Thomas was employed by the University as a “research trainee”, which was the foundation of his claims, and it appears to me that this allegation was a contrivance. I am fortified in my views by the failure of Mr Thomas to address in any coherent way, or at all, the University’s submissions and evidence on this topic.

31    Finally, I refer to two minor points, which are not material to my decision, but I mention them anyway. If Mr Thomas was an employee of the University, then in order to bring a proceeding seeking common law damages in negligence under the laws of Victoria, Mr Thomas would have to engage one of the gateways to a claim for common law damages under Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). There is no evidence that this has occurred. Second, there is no explanation as to the basis on which the Work Health and Safety Act 2011 (Cth), on which Mr Thomas relied, would be applicable to the University.

32    For the above reasons, s 570(2)(a) of the Fair Work Act is engaged, and Mr Thomas should pay the University’s costs of proceeding VID 950 of 2018.

Should a global lump sum costs order be made?

33    The Court has wide power as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth). The breadth of that power has supported the making of global costs orders in a number of cases: see, Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602; BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557; Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company (No 2) [2018] FCA 1443; and Community First Credit Union Limited v Bendigo and Adelaide Bank Limited (No 2) [2019] FCA 1976.

34    Having regard to the material that Mr Thomas has filed across the three proceedings to which the University is a respondent, and to the related nature of the claims made in those proceedings, it is appropriate to approach the question of costs on the basis that a global costs order should be made.

35    It is also appropriate that the Court should assess the University’s costs of the proceedings in a lump sum. Under the Court’s Costs Practice Note (GPN-Costs), it is stated that the Court’s preference, wherever it is practicable and appropriate to do so, is for the making of a lump-sum costs order: see paragraph [4.1]. The practice note provides for a number of procedures to facilitate the Court making lump sum costs orders, thereby avoiding the costs and inconvenience involved in a taxation of costs. The practice note contemplates that after the exchange of a costs summary, and a costs response, which are to be limited in length, the parties are to co-operate, and the practice note envisages that the parties might even consent to the making of a lump sum costs order. These features of litigation in this Court which underlie the Costs Practice Note are not present in this case. Whilst Mr Thomas has requested a hearing in relation to the assessment of costs, or alternatively that the costs be referred to an assessor, in the special circumstances of this case I decline to take that course. For the reasons set out in the Court’s reasons for judgment of 8 February 2019 in Thomas v University of Melbourne (No 3) [2019] FCA 92, Mr Thomas’s conduct has been such that I determined that there should be no further oral hearings. As I have mentioned, the written submissions that Mr Thomas filed in relation to costs were themselves characterised by invective. I am confident that any assessment of costs, or any further procedural steps in relation to costs, will be misused by Mr Thomas as a further opportunity to make scurrilous allegations against the growing number of persons against whom he has grievances.

36    In the special circumstances of this case, I consider that a lump sum costs order is appropriate in order to avoid the further wastage of time and costs that would be involved should a taxation or other formal assessment of the University’s costs be required. The interests of justice require that the Court exercise its broad discretion under s 43 of the Act by arriving at a lump sum based upon its own familiarity with the issues in the proceeding, the documents that Mr Thomas has filed and served, and the Court’s own view of what would reasonably be involved in the University responding to Mr Thomas’s claims. I shall not give Mr Thomas any further opportunities to vex the University and its legal practitioners, or to disrupt the Court. These proceedings must be brought to a conclusion.

In what amount should the University’s costs be assessed?

37    The University’s claim for costs in the sum of $50,000 was supported by an affidavit of Thomas Michael Molan dated 28 November 2019. Mr Molan is a solicitor employed by Minter Ellison, the solicitors for the University. Mr Molan deposes to ten years of experience as a legal practitioner. Since November 2018, he has had the day to day carriage of the proceedings under the supervision of a partner of the firm.

38    Mr Molan identified the material filed and served by Mr Thomas across the proceedings as follows –

Proceeding VID 738/2018

(a)    Affidavit filed on 15 June 2018 of approximately 121 pages;

(b)    correspondence from the Applicant regarding his claim dated 25 September of approximately 41 pages;

(c)    Affidavit filed on 29 November 2018 of approximately 105 pages;

(d)    Affidavit filed on 13 December 2018 of approximately 172 pages;

(e)    Affidavit filed on 21 December 2018 of approximately 287 pages;

(f)    Notice to Admit received by the Federal Court of Australia on 21 December 2018 of approximately 35 pages;

(g)    correspondence from the Applicant dated 25 March 2019 of approximately 23 pages;

Proceeding V1D 950/2018

(h)    Affidavit served on 24 August 2018 of approximately 255 pages;

(i)    Statement of Claim filed on 9 October 2018 of approximately 48 pages;

(j)    Amended Originating Application received by the Federal Court of Australia on 9 October 2018 of approximately 248 pages;

(k)    Affidavit filed on 13 November 2018 of approximately 304 pages;

(I)    Amended Statement of Claim filed on 13 November 2018 of approximately 61 pages;

(m)    Amended Originating Application received by the Federal Court of Australia on 13 November 2018 of approximately 73 pages;

(n)    Affidavit filed on 21 December 2018 of approximately 304 pages;

Proceedings VID 1407/2018

(o)    Non-Prescribed Notice/Request filed on 1 November 2018 of approximately 8 pages;

(p)    Affidavit filed on 1 November 2018 of approximately 121 pages;

(q)    Affidavit filed on 21 December 2018 of approximately 36 pages;

Documents filed in multiple Proceedings

(r)    Affidavit regarding disqualification of Respondents' legal representatives filed on 19 November 2018 of approximately 115 pages; and

(s)    Notice to Admit received by the Federal Court of Australia on 21 December 2018 of approximately 38 pages.

39    The University’s costs incurred of $110,426.30 excluding GST, were comprised of the following –

40    The University retained experienced junior counsel in the proceeding, whose rates were based upon a daily rate of $3,590.91 per day, excluding GST. I consider that rate to be reasonable for junior counsel of that standing.

41    The University stated that its claim for costs excluded the costs of the hearing on 1 February 2019 that were the subject of separate orders for costs that I made on 4 November 2019.

42    The University’s claim for costs of $50,000 is made on the rationale that, as a rule of thumb, recoverable costs are 50% of those which are incurred, and that a further amount of $5,000 should be deducted. The University’s claim is exclusive of GST, which would appear to be appropriate.

43    The approach that I shall take to the assessment of costs is high-level, which is appropriate in the circumstances, which include my familiarity with the proceedings. The award of costs is not to punish Mr Thomas for bringing the proceedings, or for his conduct in prosecuting the proceedings. The purpose of the award is to indemnify the University in respect of the costs that it has incurred in defending Mr Thomas’s claims. Doing the best I can, I shall fix the University’s costs across the three proceedings in the sum of $45,000. This is the product of a broad-brush and conservative approach. The sum of $45,000 is not intended to be generous, and in fixing costs in this sum I have sought to ensure that there is minimal prospect that the Court’s assessment of costs is unjust to Mr Thomas. I have made the assessment in furtherance of the Court’s objective of bringing this litigation to an end and, within the special constraints that arise in this case, to do justice between the parties.

Associate:    

Dated:    23 April 2020

SCHEDULES OF PARTIES