Federal Court of Australia

Tran v Kodari Securities Pty Ltd (No 2) [2020] FCA 1819

ORDERS

THE COURT ORDERS THAT:

1.    The application for costs by the applicant be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    On 21 June 2019 I delivered judgment in this adverse action case in favour of the applicant, Mr Tran: Tran v Kodari Securities Pty Ltd [2019] FCA 968 (primary judgment). On 9 July 2019, I made orders that the respondents pay a total of $151,000 in compensation and pecuniary penalties, and that the first and second respondents pay interest of $10,789 on the compensation order up to the date of judgment and $216 on the compensation order post-judgment, with the latter interest continuing to accrue until the date of payment. The time for filing and serving a notice of appeal was ordered to run from the date of making those orders. An appeal by the respondents as to the liability and penalty findings, and a cross-appeal by Mr Tran, were subsequently filed.

2    On 25 July 2019, orders were made by consent (and subsequently extended on 11 September 2019) that enabled parties to exchange submissions in support of an application made by the applicant for costs, notwithstanding the general position that costs are not payable in proceedings such as this under s 570 of the Fair Work Act 2009 (Cth). The parties sought to have the costs determination made on the papers. As that determination was capable of being significantly affected by the outcome of the appeal or cross-appeal if either was successful, I determined that the adjudication of the costs application should await the outcome of the appeal and cross-appeal.

3    On 1 October 2020, the Full Court dismissed the appeal and cross-appeal from the primary judgment: Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 (appeal judgment). The Full Court ordered that there be no order as to costs.

4    The pleading and evidence phase of this proceeding is as follows:

(1)    The proceeding was commenced by Mr Tran by an originating application filed in March 2017. The claims made and the outcome are detailed in the primary judgment and also in the appeal judgment, but do not require any detailing in these reasons.

(2)    A defence was filed by all three respondents in May 2017.

(3)    The first respondent, Kodari Securities Pty Ltd, filed a detailed cross-claim later in May 2017, alleging breach of implied contractual duties, breach of fiduciary duties and breach of statutory duties under ss 182 and 183 of the Corporations Act 2001 (Cth).

(4)    Mr Tran filed a defence to the cross-claim in June 2017.

(5)    Mr Tran’s evidence for the proceedings overall was filed in March and May 2018.

(6)    The respondents filed their evidence in June 2018.

(7)    Mr Tran filed evidence in reply in August 2018.

5    On 5 March 2019, just under two weeks before the hearing, Mr Tran offered to settle the proceedings for $75,000. He ultimately secured a total of $151,000, being $85,000 in compensation jointly from Kodari Securities and Mr Yashar (Michael) Kodari (Mr Michael Kodari, the second respondent), $55,000 in penalties payable to him by Kodari Securities, and $11,000 in penalties payable to him by Mr Michael Kodari and his father, Mr George Kodari (the third respondent).

6    In opening submissions for the respondents filed on 12 March 2019, ahead of the trial starting on 18 March 2019, Kodari Securities abandoned the cross-claim, which was subsequently dismissed with costs reserved. Mr Tran seeks his costs thrown away arising from the abandoned cross-claim. That aspect of this costs application is advanced on two grounds:

(1)    the vast majority of the claims advanced in the cross-claim brought by Kodari Securities were instituted without reasonable cause so as to activate that aspect of the exception to the ordinary prohibition on costs being awarded contained in s 570(2)(a) of the Fair Work Act (filing aspect); and

(2)    by filing and serving affidavit evidence in support of what are characterised as the doomed parts of the cross-claim, Kodari Securities engaged in an unreasonable act because of which Mr Tran incurred costs in responding to it, so as to enliven that aspect of the exception to the ordinary prohibition on awarding costs in s 570(2)(b) of the Fair Work Act (evidence aspect).

7    Mr Tran also seeks costs, effectively of the hearing, upon the basis that all three respondents engaged in an unreasonable act by refusing to accept Mr Tran’s offer of compromise to settle the proceedings, so as to enliven that aspect of the exception in s 570(2)(b) of the Fair Work Act.

Mr Tran’s submissions

8    As to the filing aspect, Mr Tran contends that even on the cross-claimant’s own facts, approximately 90% of the matters advanced by the cross-claim were doomed to fail. He submits that the cross-claim sought damages and equitable compensation against him, but did not articulate the loss or damage that it said it suffered in respect of the alleged breaches. He submits that even if those breaches had been established, there was no evidentiary or legal basis upon which Kodari Securities was able to obtain an order of loss or damage against him for those matters. Mr Tran therefore submits that the cross-claim was instituted without reasonable cause and that he was entitled to costs orders in his favour in accordance with s 570(2)(a) of the Fair Work Act.

9    In relation to the evidence aspect, Mr Tran asserts that notwithstanding the inability of Kodari Securities to obtain relief against him for the matters described, it filed and served a significant amount of material seeking to support the assertions, to which he was required to respond. This included responding to large portions of Mr Michael Kodari’s affidavit, and two other affidavits. Mr Tran’s reply affidavit of 1 August 2018 was largely in response to those allegations. Mr Tran therefore submits that the unreasonable act of filing evidence in support of the cross-claim meant that he was entitled to a costs order in his favour in accordance with s 570(2)(b) of the Fair Work Act.

10    Mr Tran chiefly relies upon the principles summarised:

(1)    by Barker J in Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322 at [10]:

It is now well accepted that one way of testing whether a proceeding is instituted “without reasonable cause”, for the purpose of a provision such as s 570, is to ask whether upon the facts apparent to the applicant at the time of instituting the proceeding, there were no substantial prospects of success. If success depends upon resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to say that the proceeding was instituted “without reasonable cause”. But where on the applicant’s own version of the facts it is clear the proceeding must fail, it may be said that it lacks a reasonable cause: see Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 (Kanan) at 264-265 (Wilcox J). In Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [51], the Court (Gray, Cowdroy & Reeves JJ) endorsed the dicta of Wilcox J in Kanan. Accordingly, a proceeding will not be considered to have been instituted “without reasonable cause” simply because an argument in the end proves unsuccessful: The Queen v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473; Cavar v Nursing Australia [2012] FCA 338 at [22] (Flick J).

and

(2)    by Mortimer J in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [66]:

Section 570, and the conditions it imposes on the Court’s general costs discretion under s 43 of the Federal Court Act, is not a licence to parties to ignore the requirements of s 37M of the Federal Court Act, nor the Court’s power to order costs against parties who fail to comply with their obligations under s 37N. The content of ss 37M and 37N, and parties’ obligations to assist the Court in achieving the objectives set out in s 37M, must be reconciled with access to justice provisions such as s 570(1). That reconciliation occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put.

11    Mr Tran summarises the aspects of the cross-claim upon which he relies as alleging the following major particulars of the claim for damages and equitable compensation, namely that he had:

(1)    relocated, without authorisation, employment records of Kodari Securities to an unknown location: cross-claim at [12];

(2)    directed an employee of Kodari Securities to accumulate demerit points on her New South Wales driver’s licence that were issued to another employee: cross-claim at [13];

(3)    obtained authorisation through false representations made to Mr Michael Kodari, to travel, at Kodari Securities’ expense, to the Philippines to attend a wedding with another employee of Kodari Securities: cross-claim at [14];

(4)    opened an account with Telstra Corporation Limited and provided Mr Michael Kodari’s personal residential email address and not his own: cross-claim at [16];

(5)    misused a corporate vehicle for personal purposes during business hours: cross-claim at [19];

(6)    permitted persons not employed by Kodari Securities to use, at Kodari Securities’ expense, mobile telephones belonging to Kodari Securities: cross-claim at [18]; and

(7)    used his Kodari Securities credit card without authorisation to purchase items for personal, non-business related consumption: cross-claim at [20].

12    Mr Tran contends that Kodari Securities’ conduct in commencing and pursuing claims for which it had no ability to obtain relief against him, cannot be consistent with its obligations under s 37N of the Federal Court of Australia Act 1976 (Cth). As will be seen later in these reasons, that aspect of his submissions did not rise any higher than an assertion. He asserts that it is clear that Kodari Securities engaged in unreasonable acts that caused him to incur costs within the meaning of s 570(2)(b) of the Fair Work Act.

13    Finally, Mr Tran turns to his offer of compromise. He made an offer to the respondents to settle the proceedings for $75,000, but ultimately secured a total of $151,000. He asserts that it was imprudent of the respondents to reject his offer, citing McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086; 164 FCR 591 at [26]–[30], in circumstances where he submits it should have been apparent that they were unlikely to succeed in defending the proceeding.

14    Mr Tran therefore submits that he is entitled to a costs order in his favour, and that as he was open to the respondents accepting an offer of settlement in the period between 5 March 2019 and 12 March 2019, any such costs order should include costs on an indemnity basis after 12 March 2019.

The respondents’ submissions

15    The respondents emphasise that while this is “primarily a ‘no costs’ jurisdiction, unless a statutory threshold of unreasonable litigious conduct is demonstrated”, the necessary statutory precondition is not determinative because the Court retains a discretion, quoting Lee J in Bywater v Appco Group Australia Pty Ltd [2019] FCA 799 at [7] and citing [11].

16    In relation to the filing aspect of Mr Tran’s application brought only against Kodari Securities as the cross-claimant, the respondents rely upon following further principles:

(1)    costs are only ordered to be paid under the exception in s 570(2) in rare and exceptional circumstances, citing Australian Workers’ Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; 232 FCR 428 (AWU) at [7]–[16], in turn citing Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 at [12]–[13];

(2)    “a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure”, quoting Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; 156 FCR 275 at [60], accepting that this could be made out if it was clear that the case brought had to fail on Kodari Securities’ own version of the facts, a point that is strenuously denied;

(3)    the time for assessment of the reasonableness or otherwise of the conduct is the time at which the proceedings were instituted rather than the time of their ultimate outcome: AWU at [7], citing R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473;

(4)    the manner in which a proceeding is prosecuted, including any later withdrawal of claim, is not a valid consideration for the purposes of a s 570(2)(a) assessment, citing Morris v McConaghy Australia Pty Ltd [2018] FCA 2099 at [5]–[6].

17    In response to Mr Tran’s assertion that the allegations summarised above were instituted without reasonable cause because “even on the cross-claimants facts” each of those allegations was doomed to fail, Kodari Securities submits that those allegations were supported by evidence in the respondents’ possession at the time the cross-claim was filed. They provide references to that evidence, being an affidavit of Mr Michael Kodari and another affidavit, in a detailed table.

18    Kodari Securities submits that Mr Tran’s assertion that the decision not to press the allegations was made because they were instituted without reasonable cause is not properly available. That submission is made because of the evidence contained in an affidavit of Mr Michael Kodari dated 26 June 2018 (including exhibited documents obtained from unrelated service providers and the like) relied upon as the evidentiary foundation for the assertions of fact pleaded in the cross-claim. Kodari Securities submits that it was not unreasonable for them to bring the cross-claim based on that evidence. Further, Kodari Securities submits that the evidence of Mr Tran in response was not known to the respondents at the time the cross-claim was filed. To the extent that the evidence filed by Mr Tran allowed Kodari Securities to make a forensic decision about the desirability of maintaining a proceeding for each of the allegations, that was a course was taken long after the proceeding by way of cross-claim had been instituted. This was a course that was at all times open to them, particularly in circumstances where the defence to the cross-claim mostly consisted of bare denials which implicitly did not allow the prospects of success to be as critically considered. Kodari Securities therefore contends that it has not been established that it was not reasonable for them to have commenced the proceeding by way of cross-claim.

19    In relation to the evidence aspect of the costs application, concerning the evidence filed by Kodari Securities in support of its cross-claim, the arguments above are also pressed. Additionally, Kodari Securities submits that it was required to carry out the ordinary procedural tasks associated with bringing a claim, including preparing and filing evidence. It therefore submits that filing the evidence by which it sought to prove the allegations in the cross-claim could not be seen to constitute an unreasonable act (per s 570(2)(b) of the Fair Work Act). Nor, it submits, could it be seen as any failure to comply with the duty imposed by s 37N(1) or (2) of the Federal Court of Australia Act to conduct proceedings in a way that is consistent with the overarching purpose described in s 37M(1) and (2) (a mandatory consideration in exercising the discretion to award costs per s 37N(4) of that Act). The manner of pleading the relief sought was not such as to change that conclusion.

20    Kodari Securities relies upon Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; 170 FCR 574 dealing with an analogous provision in s 824 of the Workplace Relations Act 1996 (Cth), in which it was observed (at [29]):

In our view, the respondent has not engaged in “an unreasonable act or omission”. As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable: Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the [Workplace Relations Act (WR Act)] to make a costs order. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being “an unreasonable act or omission” for the purposes of s 824(2). True it is that the concession ultimately given by the respondent that it regarded the decision of Nicholson J as erroneous could have been given earlier. However, it was a concession which was, in light of the decision of this Court on the substantive appeal, properly made and beneficial to the appellants. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as “unreasonable” in the circumstances of this case. Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also 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 under the WR Act in the manner which they deem best.

21    In light of Clarke, Kodari Securities characterises its decision not to press the additional grounds in the cross-claim (that do not form part of the arguments advanced in support of this costs application) as being beneficial to Mr Tran. It submits that even though some costs may have been incurred, those costs should not be considered to be unreasonable in circumstances in which there was no suggestion of delay, non-appearance, non-compliance, nor any other indication of unreasonableness of the kind identified in the cases on this topic.

22    Mr Tran submits in reply that it is no answer to his submissions concerning the asserted lack of evidentiary basis upon which the cross-claimant would be able to obtain an order for loss or damage to say that the respondents possessed enough evidence at the time of filing to establish breach. In support of this submission, the applicant draws the Court’s attention Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758; 49 VR 573 at [63]–[64], [92]–[103], and [104]–[112]. In that decision, Bell J concluded that the applicant had breached the overarching purpose provision of Victorian civil procedure legislation (analogous to s 37M of the Federal Court of Australia Act) because it had commenced and maintained a case to final judgment for nominal damages on principle, and to advance a commercial objective, thereby causing costs disproportional to that outcome to be incurred. I address the material differences between Actrol Parts and this case below.

23    Finally, Kodari Securities’ submissions turn to Mr Tran’s offer of compromise, by which he seeks costs, including on an indemnity basis, from all three respondents. On that issue, Kodari Securities submits that while failure to accept a reasonable offer may constitute an unreasonable act for the purposes of s 570(2)(b), the non-acceptance of the offer is required to be determined in light of the circumstances that existed at the time, relying upon the statement to that effect by Tracey J in Health Services Union v Jackson (No 5) [2015] FCA 1467 at [46]. I note that his Honour in the preceding paragraph provided a pithy summary of some of the principles to be applied in assessing an offer of compromise.

24    In relation to Mr Tran’s offer of compromise, the respondents submit that it did not disclose any genuine basis upon which he asserted that the cross-claim would not succeed, nor any legal reason why that offer should be considered, simply asserting that it was genuine and reasonable, and stating, incorrectly, that nothing had been provided to substantiate the claims made, in circumstances in which affidavit evidence had been filed.

Consideration of the claim for costs based on s 570(2)(a)

25    I have perused the evidence relied upon by Kodari Securities and am of the view that there was an adequate factual basis for the allegations that were made in the cross-claim, both in terms of breach and the necessary potential loss flowing from that, without purporting to adjudicate upon their merit. Mr Tran does not explain in either his submissions in chief, or in his submissions in reply, why, if Kodari Securities had been able to establish a breach of contractual, fiduciary or statutory duties as pleaded in the cross-claim, it would have been inherently incapable of proving loss so as to be entitled to an award of damages, even if proof of such loss may have been problematic. Each type of conduct summarised at [11] above was conceptually capable of producing a financial loss of some kind, not merely nominal damages, even if ultimately no loss (or no more than nominal loss) might have been established for aspects of that conduct. This is quite unlike Actrol Parts, upon which Mr Tran relies, in which the plaintiff commenced proceedings, rather than cross-claiming in existing proceedings, and did so overtly for the purpose of obtaining no more than nominal damages as part of a strategy to contain the loss of staff to a competitor.

26    I do not consider that it is appropriate to find that a case should not have been brought upon the basis of infelicities in the manner in which the relief sought was framed, not least because that would require a conclusion to be reached that this was beyond remedy by amendment, which it is simply not possible to do. After considering the evidentiary material relied upon by Kodari Securities, I am not satisfied that Mr Tran has surmounted the high threshold of demonstrating that it was not reasonable to file the cross-claim against him in the first place and accordingly this foundation for the s 570(2)(a) exception to the ordinary application of s 570(1) of the Fair Work Act is not made out.

Consideration of the claim for costs based on s 570(2)(b)

27    Once a claim is made that has not been shown to be brought without reasonable cause so as to fall within s 570(2)(a), the first alternative or additional basis for a costs order under s 570(2)(b) of an unreasonable act (or omission) causing the other party to incur costs needs to point to the act relied upon being in itself inherently unreasonable in some way. Mr Tran falls well short of that threshold. He points to nothing more than evidence being filed in the ordinary way in relation to a claim that has not been shown to be unreasonably brought. While undoubtedly responding to that evidence meant that costs were incurred by Mr Tran that would not have been had the evidence in support of the claim not been filed, that does not render the filing of that evidence itself an unreasonable act. To the contrary, the evidence was filed in accordance with a Court-ordered timetable. I am therefore not satisfied that Mr Tran has demonstrated that it was an unreasonable act to file evidence in support of the cross-claim, and accordingly this foundation for the s 570(2)(b) exception to the ordinary application of s 570(1) of the Fair Work Act is not made out.

Consideration of the rejection of the offer of compromise

28    The substantive part of Mr Tran’s offer to compromise was in the following terms:

While our client is prepared to prosecute his claim in full, and to seek an order for a full costs indemnity on a solicitor/client basis in accordance with this letter, our client is prepared to resolve this matter on a strictly commercial basis, in terms set out below:

(1)    The Respondents to pay the Applicant 6 month’s pay, or $75,000. This amount is to be paid directly to our trust account as a lump sum;

(2)    The parties apply by consent for the proceedings to be discontinued in full, with no order as to costs;

(3)    The cessation of the Applicant’s employment is to be characterised as a resignation; and

(4)    The parties to formalise the terms of settlement in a balanced deed of settlement, reflecting the above, and including mutual terms as to confidentiality, non-disparagement, releases, bars to proceedings, and indemnities.

29    It is important to note that I do not regard the characterisation of the outcome of the proceeding as being anything like as predictable as Mr Tran’s submissions both in chief and reply suggest. While I ended up preferring Mr Tran’s evidence over that of Mr Michael Kodari and Mr George Kodari, that was far from a simple conclusion to reach, let alone one that could be predicted with any degree of confidence. In any event, these submissions seem to ignore the proper operation of s 570 of the Fair Work Act, which is not to be side-stepped by an ordinary offer of compromise in unremarkable terms. The will of the legislature is not to be so easily set aside.

30    Turning to the terms of the offer, which must be considered in the context of the presumptive operation of s 570 of the Fair Work Act against any award of costs, while Mr Tran did do better than his offer, he did not do so in relation to the major part of his claim, being $75,000 in compensation for economic loss. The rest of the $151,000 award apart was made up of factors that emerged from the totality of the hearing process, which could easily not have gone as well for Mr Tran.

31    I do not consider it either fair or appropriate to characterise the refusal of Mr Tran’s offer as an unreasonable act in all the circumstances. This was not a sufficiently clear case to deviate from the ordinary operation of s 570. It follows that I am not satisfied that t the s 570(2)(b) exception to the ordinary application of s 570(1) of the Fair Work Act is made out.

Conclusion

32    Mr Tran’s application for costs must be refused as he has not satisfied me that s 570(2)(a) or (b) has been satisfied.

Associate:

Dated:    18 December 2020