Federal Court of Australia

Askari v Life Without Barriers [2022] FCA 1347

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) the proceeding be dismissed.

2.    The applicant pay the respondent’s costs of, and incidental to, the proceeding, fixed in a lump sum following a procedure and timetable to be ordered by the Court in accordance with the Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is a representative proceeding commenced in August 2020 under Part IVA of the Federal Court of Australia Act 1976 (Cth), alleging, among other things, contraventions of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) and the Fair Work Act 2009 (Cth) (FW Act). The lead applicant (Mr Askari or the applicant) alleges that Life Without Barriers (the respondent) employed him as a cultural support worker from 22 February 2022 to 22 November 2014. By interlocutory application dated 15 July 2022, the respondent seeks orders dismissing the proceeding and, notwithstanding s 570 of the FW Act, that the applicant pay its costs of and incidental to the proceeding.

2    The respondent relied on an affidavit of Mr Bradley Woodhouse, a Partner at Corrs Chambers Westgarth, the legal representatives of the respondent, who has conduct of the proceeding on behalf of the respondent. The factual matters set out below are taken from Mr Woodhouse’s affidavit.

The facts

3    The applicant commenced this proceeding by an originating application and statement of claim dated 24 August 2020. The statement of claim read relevantly as follows:

…

4.    The applicant was an employee of the respondent from 22 February 2011 to 22 November 2014 (“the Period”) employed as a cultural support worker.

…

6.    During the Period the respondent classified the applicant as a permanent part-time employee.

7.    During the Period the applicant’s employment was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (“the Award”).

8.    During the Period the applicant, as a cultural support worker, performed the duties of, and was entitled to be paid as a social and community services employee level 3 as defined in part B.3 of schedule B of the Award.

9.    As a cultural support worker the applicant provided care and social and cultural support to groups of up to 8 unaccompanied minors, who had arrived in Australia as asylum seekers.

10.    During the Period, the applicant worked:

(a)    24 hour shifts, up to 16 hours per day;

(b)    worked consecutive shifts without at least a 10 hour break;

(c)    on numerous occasions worked up to 15 days consecutively without a day off;

(d)    on at least 1 occasion worked every day in a month without a day off;

(e)    more than 38 hours in any week and was not paid overtime; and

(f)    Saturdays, Sundays and public holidays without being paid a loading for such work.

11.    In the premises of paragraph 10, the respondent contravened clauses 25, 26, 27, 28 and 34 of the Award.

12.    Further to paragraph 11, for all the work that the applicant performed as a cultural support worker, the respondent underpaid the applicant the rates prescribed by the Award.

PARTICULARS

The applicant will provide further and better particulars of the underpayment after discovery.

13.    By

(a)    contravening clauses 25, 26, 27, 28 and 34 of the Award; and/or

(b)    failing to pay the applicant the rates prescribed by the Award –

the respondent contravened section 45 of the [FW] Act.

14.    During the Period the applicant was a member of The Services Union Queensland (“the Union”).

15.    In or about mid 2013 the respondent became aware that it was in breach of the Award:

(a)    to have the applicant work 24 hour shifts; and

(b)    in that it had underpaid him and other cultural support workers that the respondent employed.. [sic]

PARTICULARS

The applicant relies upon an email from Ms Tneka Springett of The Services Union Queensland to Mr Jawadi Askari & others dated 3 June 2013, a copy of which may be inspected by appointment with the applicant’s solicitors.

16.    In the email referred to in paragraph 15 the Union referred to ‘making a claim for underpayment of wages’ on behalf of its members including the applicant.

17.    In the premises of paragraph 16 and for reasons unknown to the applicant the Union took no steps to recover underpayment of wages on behalf of its members including the applicant.

18.    In or about mid 2013 Mr John Te Paea, an employee of the respondent, applied under section 372 of the [FW] Act alleging a contravention of the [FW] Act relating to the respondent unilaterally changing the terms and conditions on which he and other of the respondent’s employees were engaged for employment.

PARTICULARS

The application is C2013/5249 and was lodged through the Brisbane registry of the Fair Work Commission. A conciliation conference was held before Commissioner Spencer, which representatives of the respondent attended but no resolution was reached.

19.    On or about 18 November 2014 the Union notified the respondent that it had wrongly classified cultural support workers as home care workers for the purposes of the Award and that as a result the respondent was likely to have underpaid overtime to those workers including the applicant.

PARTICULARS

A copy of a letter from The Services Union Queensland to Life Without Barriers dated 18 November 2014 may be inspected by appointment with the applicant’s solicitors.

20.    In the premises of paragraph 19, the respondent undertook no review and did not pay amounts to the applicant or any cultural support worker the respondent employed at all.

21.    Further or alternatively to paragraphs 3 – 20 the applicant relies on the decisions of the South Australian Employment Tribunal in Hosseini v Life Without Barriers [2017] SAET 146, Hosseini v Life Without Barriers (No 2) [2018] SAET 19 and Hosseini v Life Without Barriers (No 3) [2018] SAET 15 as being on all fours with his claim against the respondent.

AND THE APPLICANT CLAIMS:

A.    Underpayment of wages.

B.    Pre-judgment interest.

C.    Civil penalties under the Fair Work Act 2009 for contraventions of the Social, Community, Home Care and Disability Services Industry Award 2010.

D.    Any further or other orders this Honourable Court sees fit.

4    The originating motion stated that “[t]he Applicant brings this application as a representative party” under Part IVA of the Federal Court Act, and set out eight questions described as “questions of law or fact common to the claims of the group members”. It also said that “[t]he group members to whom this proceeding relates are or were employees of the Respondent within Australia”. However, the statement of claim made no reference to any group members, and did not define claims of any group members other than those of the applicant.

5    By a letter dated 24 August 2020, Mr Gregory Doran of Nevett Ford Lawyers, the legal representatives for the applicant, sent a letter to the directors of the respondent, serving the documents and asking that the respondent provide the applicant with copies of employment details and time sheets, as well as records of pay, overtime hours, leave entitlements, and superannuation contributions, and records relating to the termination of employment, for 18 employees, including the applicant.

6    The matter was listed for a case management hearing on 15 October 2020.

7    On 12 October 2020, Mr Woodhouse sent a letter to Mr Doran. Among other things, the letter stated that the respondent required further particulars and information with respect to a number of the allegations in the statement of claim, including paragraph 21, in respect of which Mr Woodhouse noted that “the decision referred to in that paragraph has now been set aside” and requested confirmation that the applicant no longer pressed that paragraph.

8    The letter continued, under the heading “Representative proceeding”:

In addition to the matters raised above, we note that your client has also caused to be filed a document headed “Originating Motion Starting a Representative Proceeding under Part IVA of the Federal Court Act 1976”. Despite that fact, neither the Originating Motion nor the Statement of Claim contains any definition of group membership in a way that would satisfy the requirements of Part IVA of the Act (including, in particular, section 33H). It therefore seems to us that, properly understood, the claim which your client seeks to prosecute is a claim brought on his own behalf only and that, properly understood, the claim is not a representative proceeding.

If we have misunderstood the position, we would be grateful if you could please take steps to cure the shortcomings in the documentation filed on behalf of your client so as to ensure that it meets the requirements of Part IVA of the Act.

9    In light of the above concerns, Mr Woodhouse suggested that the parties seek to defer the scheduled case management hearing.

10    Section 33H of the Federal Court Act which is referred to in Mr Woodhouse’s letter reads as follows:

33H    Originating process

(1)    An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

(a)    describe or otherwise identify the group members to whom the proceeding relates; and

(b)    specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c)    specify the questions of law or fact common to the claims of the group members.

(2)    In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

11    On 14 October 2020, Mortimer J made orders vacating the case management hearing, for the applicant to file and serve any proposed amended originating application and amended statement of claim by 6 November, and for the respondent to file and serve its defence by 4 December.

12    On 5 November, Mr Woodhouse sent a letter to Mr Doran seeking clarification as to whether he had instructions to act for all 18 persons named in his 26 August letter, and the basis upon which the request for documents in that letter was made.

13    The applicant filed an amended statement of claim (ASOC) on 6 November by including additional particulars to paragraphs 6, 10, and 12. The applicant also added new paragraphs 22 to 24 as follows:

22.    On or about 1 September 2020 in Life Without Barriers v Hosseini [2020] SAET 163, a Full Bench of the South Australian Employment Court allowed an appeal on the decisions referred to in paragraph 21 hereof, on the basis that the South Australian Employment Tribunal did not have jurisdiction to make the orders referred to in the decisions.

23.    The respondent satisfied the judgments represented by the decisions before 1 September 2020.

24.    Notwithstanding the allowance of the appeal relating to the decisions the substantive issues in the decisions are such that that they remain on all fours with the applicant’s claim against the respondent in this proceeding.

14    Mr Doran sent a letter to Mr Woodhouse and Ms Jade Saunders of Corrs the same day, enclosing, among other documents, a copy of the ASOC. The letter relevantly read as follows:

Having carefully reviewed section 33H of the Federal Court of Australia Act 1976, we are unable to see how any amendment to the originating motion starting a representative proceeding is required.

We have however, as far as we are able before discovery takes place, provided further particulars to enable the respondent to plead its defence.

As you can see from the amended statement of claim, the applicant – and by extension the group members – continue to rely on the substance of the decisions in Hosseini v Life Without Barriers.

As was stated in our letter to Life Without Barriers dated 26 August 2020, we act for the people named in the letter in the representative proceeding and are seeking information that would otherwise become discoverable in that proceeding.

15    On 20 November 2020, Mr Woodhouse sent a letter to Mr Doran, relevantly as follows:

Notwithstanding the concerns our client raised in our letter regarding the failure of the Originating Motion or the Statement of Claim to define group membership in a manner that would satisfy the requirements of Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Act) (including, in particular, section 33H), we note your client has neglected to address those concerns in the ASOC.

Our client does not agree with the comments in your letter to the effect that no amendment to the Originating Motion or Amended Statement of Claim are required to address the defects identified.

The requirements of section 33H of the Act to properly and clearly, within the pleadings, ‘describe or otherwise identify the group members to whom the proceeding relate’ and ‘specify the nature of the claims made on behalf of the group members and the relief claimed’ are expressed in mandatory terms. The authorities in this area make it blatantly clear that if a group member would not be able to ascertain, by reference to the pleading, if they were a member of the class to which the proceedings relate, then the pleadings will not satisfy the requirements of section 33H. That exercise would be impossible on the pleadings as presently drafted. Further, the purpose of the requirements of section 33H is not only to protect potential group members, but to assist in the determination of whether the claims of all the group members give rise to a substantial common issue of law or fact (which, on your client’s present claim, would be equally impossible).

On this basis, as we see it, the failure of the pleadings to disclose a definition of group membership which would satisfy the requirements of section 33H has the effect that the claim which your client seeks to prosecute is a claim brought on his own behalf only, and it is not (notwithstanding the title of the ‘Originating Motion’) a representative proceeding.

Our client is not intending to be obstructive in raising these concerns. To be clear, our client understands from your letter that you are instructed by the individuals listed in your letter dated 26 August 2020. However, if it is the intention of your clients (being those individuals listed in your letter of 26 August 2020) that the Proceeding be prosecuted not only on behalf of Mr Askari, but on behalf of those individuals as well, then the pleadings will need to be amended to properly address the requirements of section 33H to make that clear, and to otherwise nominate the relief sought by those parties.

We would be happy to discuss the concerns raised above with you further. However, unless and until we receive a response, our client intends to proceed on the basis that, in preparing any defence, it is merely responding to the claim brought by Mr Askari. …

(Emphasis in original.)

16    On 2 December 2020, Mr Doran sent an email to Mr Woodhouse and Ms Saunders, relevantly as follows:

Having reviewed sections 33C(1) and 33H(1) of the Federal Court of Australia Act 1976 and cases on their interpretation, I concede your point that the amended statement of claim does not describe or otherwise identify the group members to whom the current proceeding relates.

I confirm that it is the intention of the applicant to act not only for himself but for members of the group as it has been described in the originating motion.

I will later today circulate proposed orders to deal with the case management hearing on 7 December 2020 for your consideration, which will seek its further adjournment so that the pleading issues can be fixed.

17    Mr Woodhouse responded to Mr Doran’s email later that day, relevantly as follows:

… For the avoidance of any doubt, I wanted to make clear that our concern is not simply the absence of a group definition in the Statement of Claim. Rather, our concern is that there is a complete absence of a group definition in any of the Court documents filed by your client – unless your client’s position is that the group members are all people who are employed now or have ever been employed by our client. Is that the intention? If so, there are obviously concerns we will wish to raise about that as a group definition, but I will await your confirmation by corresponding about those issues.

(Emphasis in original.)

18    Two days later, Mortimer J made orders for the applicant to file and serve an amended originating motion and further amended statement of claim by 11 January 2021, for the respondent to file and serve its defence by 8 February 2021, and for the case management hearing to be adjourned until after 15 February 2021.

19    On 22 December 2020, Mr Woodhouse sent a letter to Mr Doran, providing some documents by way of early discovery as requested in Mr Doran’s 26 August letter.

20    The applicant filed and served an amended originating motion and further amended statement of claim (FASOC) on 12 January 2021.

21    The amendments to the originating motion relevantly included new paragraphs 1 and 2, which read as follows:

1.    The Applicant brings this application as a representative party.

2.    The group members to whom this application relates are the persons defined in paragraph 4 of the Further Amended Statement of Claim who:

(a)    were employees of the Respondent, in the role of cultural support workers between or on about 14 June 2009 and on or about 6 December 2017; and

(b)    suffered loss and damage by or resulting from the wrongful conduct of the Respondent in the underpayment of wages including overtime, penalties and allowances as pleaded in the Further Amended Statement of Claim.

22    The “amendments” to the FASOC, for the most part, merely substituted “the applicant and the group members” for “the applicant”. Paragraph 4 of the FASOC read: “The applicant and the group members were employees of the respondent for varying periods from on or about 14 June 2009 to on or about 6 December 2017 (“the Period”) employed as cultural support workers”. The applicant also added new paragraph 25 to the FASOC, specifying the loss and damage suffered by the group members, as follows:

By reason of the matters pleaded herein the applicant and the group members have suffered loss and damage.

PARTICULARS

The loss and damage is the underpayment of wages including overtime, penalties and allowances otherwise due to be paid to the applicant and the group members by the respondent.

Further particulars will be provided after discovery and opt out and the determination of the applicant’s claim and the identification of common issues at an initial trial, and if and when necessary, for a determination to be made of the individual claims for underpayment of wages including overtime, penalties and allowances for the group members.

23    Mr Woodhouse sent a letter to Mr Doran about the amended originating motion and the FASOC on 1 February 2021, relevantly as follows:

We note that the definition of group membership at paragraph 2 of the Originating Motion differs from the definition of group membership at paragraph 4 of the Statement of Claim. Could you please confirm the correct definition?

Further, whichever is the correct definition, as presently drafted the definition of group membership purports to capture employees of our client whose employment could have ceased prior the expiration of the applicable limitation period. Those individuals could have no claim against our client as those claims would be statute barred. We are concerned that this may be misleading to potential group members, and should be rectified.

24    The “applicable limitation period” that Mr Woodhouse referred to is that set out in ss 544 and 545 of the FW Act. Relevantly, s 544 provides that a person may apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision, safety net contractual entitlement, or entitlement arising under s 542(1) “only if the application is made within 6 years after the day on which the contravention occurred”. Section 545(1) relevantly provides that this court may make any order it considers appropriate if it is satisfied that a person has contravened a civil remedy provision, but this is subject to the limitation in sub-s (5) which provides that the court “must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced”.

25    Mr Doran sent a letter to Ms Saunders in response on 4 February 2021, which relevantly read as follows:

We had meant the definition of group members in paragraph 2 of the amended originating motion to embrace any employee of the respondent who was a cultural support worker between 14 June 2009 and 6 December 2017.

We apologise if you or the respondent interpreted this as meaning that the group members must have worked the totality of the period.

Paragraph 4 of the further amended statement of claim was designed to clarify that group members worked during the period but not necessarily for all of the period.

We do not agree that there are differing definitions of group membership between paragraph 2 of the amended originating motion and paragraph 4 of the further amended statement of claim.

So that there is no confusion, however, the group members are employees of the respondent for varying periods from on or about 14 June 2009 to on or about 6 December 2017 employed as cultural support workers.

You can be assured that any applicable limitation period is notified to group members.

26    The respondent filed its defence on 11 February.

27    The proceeding was listed for case management before Mortimer J on 15 February. Mr Doran and Mr Woodhouse appeared for their respective clients. Mr Doran said that, at that stage, 77 people had “come forward to be identified as part of the group”, “there might be another 15 people coming forward to join the group”, and his initial calculations and reviews suggested that the quantum of the claims was “[m]aybe in the low tens of thousands”.

28    Mr Woodhouse then raised the issue regarding the limitation period, submitting as follows:

[T]here is a limitation defence as well. So as your Honour would be aware, sections 544 and 545 of the Fair Work Act [proscribe] claims being brought beyond the six year period after the contravention. The current group definition – bearing in mind that this proceeding was commenced in August last year – is brought on behalf of employees of respondents of varying periods from on or about 14 June 2009 to on or about 6 December 2017.

29    In response, Mr Doran submitted that “the issue of limitations has been raised with the applicants and the group of members”, and explained that this proceeding sought to “ride on the coat tails of” the Hosseini v Life Without Barriers cases referred to in the FASOC, in which, Mr Doran submitted, Mr Hosseini (the applicant in those proceedings) established that there was significant underpayment to him as a cultural support worker.

30    At that case management hearing, Mortimer J made, among others, the following orders:

1.    The parties are to confer on the question of the correct limitation period for the applicant’s and group members’ claims in this proceeding.

2.    On or before 1 March 2021, the applicant is to report by email to the Court whether the parties have agreed on the correct limitation period.

3.    If agreement has been reached, then by 4pm on 15 March 2021, the applicant is to file and serve:

a.    A further amended originating application setting out a group definition which is consistent with the agreed position; and

b.    A second further amended statement of claim which is consistent with the agreed position.

4.    If no agreement has been reached, then by 4pm on 15 March 2021 the respondent is to file and service any interlocutory application concerning the question of the correct limitation period.

31    On 25 February 2021, Mr Woodhouse sent a letter to Mr Doran regarding the limitation period issue, relevantly as follows:

During the [case management hearing] (and in our letter of 1 February 2021) we repeated our concerns regarding the current group definition and the fact that it purports to capture claims which would be proscribed by sections 544 and 545(5) of the Fair Work Act 2009 (Cth) (Act).

As [Mortimer J] emphasised during the [case management hearing], ‘the court will be constrained by the law as it presently is’ and ‘the proceeding and the way the proceeding has to be conducted has to accord with the law and the Fair Work Act about limitation periods’.

As you are no doubt aware (and as raised at paragraph 26 of the Defence), pursuant to sections 544 and 545(5) of the Act, the Applicant and group members are precluded from making a claim, and the Court is precluded from making an award, in respect of periods of work prior to six years before the commencement of the proceedings.

On the most favourable view of matters for your client, the Applicant and group members are precluded from making a claim for any periods of work prior to 24 August 2014 (being 6 years before the proceedings were first commenced).

Accordingly, our client considers the group definition in paragraph 2 of the Originating Motion and paragraph 4 of the Statement of Claim should be amended to define the ‘Period’ as ‘from 24 August 2014 to on or about 6 December 2017’.

For the avoidance of doubt, in agreeing to 24 August 2014 as the applicable limitation period, our client does not intend to waive its rights to rely on other limitation defences that may be available (in particular those raised in paragraph 26 of the Defence). Our client is merely agreeing, in an effort not to be obstructive or cause further delay to the Proceeding, that the limitation period for the purposes of the group definition should be amended to reflect the earliest possible date that the Applicant’s or group members’ claims could arise.

(Emphasis in original.)

32    On 1 March, Mr Doran sent an email to Ms Saunders, copied to Mr Woodhouse, advising that he did not have instructions to agree to the definition of the group set out in the 25 February letter, and that he was instructed to “ascertain whether [the respondent] would deal with any claim to which a limitation period applies so as to exclude a person from being a group member, on the basis, where applicable, of the decisions in Hosseini v Life Without Barriers of the South Australian Employment Tribunal”.

33    Mr Woodhouse responded to Mr Doran’s email twenty minutes later, relevantly as follows:

The directions required the parties to confer in relation to the correct limitation period. We have indicated our position in correspondence, explaining why we have taken that position. Other than to advise that you do not have instructions to agree to the proposed amended group definition, your correspondence says nothing about your client’s position as to the correct limitation period.

Can we please ask you to advise, directly, whether you disagree with the characterisation of the limitation period detailed in our [25 February letter]? If so, please explain the basis for that disagreement. It seems to me necessary for you to take those steps in order to comply with the Court’s directions.

34    On 9 March, Mr Woodhouse sent a letter to Mr Doran relating to “the limitation periods applying to the claims made by [the applicant] and group members”, which read relevantly as follows:

Limitation period

… The Fair Work Act 2009 (Cth) (Act):

(a)    proscribes the bringing of an application more than 6 years after the alleged contravention … ; and

(b)    prohibits the Court from making any orders in respect of a contravention occurring more than 6 years prior to the commencement of proceedings concerning an alleged underpayment …

In raising these issues, our client is not being obstructive, unreasonable or merely seeking to rely on ‘legal formalities’ or a technical defence. This is a substantive issue about which there is no work around in the Court process: the Court does not have a discretion to extend the limitation period; nor can our client consent to the limitation period being extended. Put simply, the litigation can only address claims that are not time barred under the Act.

Justice Mortimer made it clear during the [case management hearing] that this issue needs to be addressed now, not only for the sake of your clients, but to avoid unnecessary time and costs being incurred in relation to claims that the Court has no jurisdiction to determine.

As explained in our letter of 25 February 2021, in our view, the issue can be addressed by a simple amendment to the group definition in paragraph 2 of the Originating Motion and paragraph 4 of the Statement of Claim, namely to define the ‘Period’ as ‘from 24 August 2014 to on or about 6 December 2017’. We explained the reason for the 24 August 2014 date in our letter of 25 February 2021.

To date, you have not endeavoured to explain why the proposed approach is not an appropriate response to the concerns raised by our client (or, indeed, why the concerns raised by our client do not need to be addressed). Our client wishes to deal with these issues as constructively as possible, but in the absence of a substantive response from your client, considers it will be necessary to bring an application of the kind contemplated at the [case management hearing].

As our client is required to file an application regarding the limitation issue by 15 March 2021, which will likely involve the preparation of evidence and briefing counsel, we request your clients’ response to the issues raised above by no later than 5 pm on 9 March 2021.

Time barred claims

The issue of limitation periods and how our client approaches time barred claims are not related. As to claims which are currently captured by the group definition but which, for the reasons explained, fall outside the limitation period, to the extent you act for people who have such claims, then we invite you to write to us setting out the detail of those claims for our client’s consideration.

In extending that invitation, we wish to correct an observation made in your email of 3 March 2021 where you:

(a)    say that it was ‘heartening… for [me] to state in open court on 15 February 2021 that any former employee whose claim is statute barred can approach [our client] directly and make a claim on a without prejudice basis’; and

(b)    seek clarification that ‘such approaches will be considered on the basis that Hosseini v Life Without Barriers is the touchstone for negotiations, which will result in your client making a financial settlement once the merits of any particular claim are established and not relying on legal formalities’.

At no point during the [case management hearing] did I indicate or suggest that there would be any guaranteed negotiation or financial settlement of time barred claims. To the contrary, I made very clear that “I don’t have instructions on whether or not my client has an appetite to look beyond the limitation defence that it has available to it.” It was against that background that I indicated you “could write to my client separately on a without prejudice basis in relation to those claims that predate the limitation period and there can be whatever consensual engagement there is on that front”.

(While the letter refers to an email from Mr Doran dated 3 March 2021, no email bearing this date was in evidence.)

35    Mr Woodhouse deposed that he spoke with Mr Doran about the group definition and the limitation period issues on 11 and 12 March. Mr Woodhouse then sent an email to Mr Doran on 12 March, relevantly as follows:

As you know, our client is endeavouring to adopt a constructive approach to this litigation. We have written to you on several occasions now in relation to the question of limitation periods. In a final effort to avoid any interlocutory application to resolve that issue at this juncture, could you please advise:

1    whether your client accepts that no claim for relief can be brought, and no orders can be made, in this proceeding in respect of work performed by the applicant or any group member in respect of the period on and before 23 August 2014; and

2    assuming your client accepts the proposition in paragraph 1 above, whether the group membership definition in paragraph 4 of the Further Amended Statement of Claim is intended to capture employees who did not work any shift on or after 24 August 2014.

I would be grateful if you can please let me have a response to the above queries as soon as possible so that our client may take into account that response in deciding whether to bring any interlocutory application in accordance with the existing directions.

36    Mr Woodhouse emailed Mr Doran the next morning, requesting a response. Mr Doran responded within the hour, and said, “I agree with the propositions you state but I cannot obtain instructions to agree”.

37    Mr Woodhouse sent a further letter to Mr Doran on 15 March, relevantly advising that the respondent did not intend to bring an application for the determination of the limitation period issue “on the basis that your agreement with the [propositions set out in Mr Woodhouse’s email of 12 March 2021] will be reflected in the manner in which you and your clients proceed from a case management perspective”.

38    Mr Doran sent an email to Ms Saunders, copied to Mr Woodhouse, the next day, attaching draft minutes of order. The email read relevantly as follows:

Whilst I understand your client’s reliance on section 545(5) of the Fair Work Act 2009 and the effect that it will have on your client’s obligations in relation to discovery as part of a representative proceeding for group members, my position has always been that former employees of your client whose claims are wholly barred by operation of section 545(5) of the Act cannot be group members.

At this point 76 former employees of your client have consulted me about what I will call Hosseini type claims.

On the information I have thus far, 26 can be part of the group for the representative proceeding because their period of employment (and therefore days they worked) extended beyond 24 August 2014, 16 cannot because their employment finished before 24 August 2014, and 34 are still to be clarified as I am waiting on them to complete questionnaires, which I had previously sent them to ascertain their position.

Your client and you should therefore take from this exercise that I am working to ensure that group members for the representative proceeding are only those whose claims do not run foul of section 545(5) of the Act.

39    On 16 March, Bromberg J made orders by consent in relation to discovery and the opt-out notice and process, and listing the matter for case management on 2 June 2021.

40    On 29 April, Mr Woodhouse sent a letter to Mr Doran, stating, among other things, that “the proposed opt out notice has caused our client some concern”, and that:

(1)    because of how the group was defined, “all individuals who fall within the group definition will need to be issued an opt-out notice, notwithstanding limitation issues”;

(2)    the use of the expression “on or about” in the definition of the group was “problematic” and introduced imprecision and uncertainty, noting that s 33H of the Federal Court Act required that the group definition should be sufficiently clear so as to enable a group member to determine whether or not they are a member;

(3)    the position adopted by the applicant in correspondence did not match the actual terms of the group definition, which created “practical difficulties” such as identifying who should receive the notice and how Nevett Ford would respond to an inquiry by a potential group member who fell within the terms of the group definition but whose claim was affected by the limitation issue; and

(4)    it remained the respondent’s view that the words “on or about” should be deleted from the pleadings and opt-out notice.

41    A case management hearing took place on 2 June 2021 before Bromberg J. At the case management hearing, Mr Doran noted that he was not in a position to specify the quantum of the underpayment because he had not yet been able to perform the calculations (including because discovery would assist in that calculation). The following exchange took place in relation to the progress of the proceeding:

HIS HONOUR:    Well, I’m afraid you’re not going to get very far with me if your statement of claim isn’t in – isn’t sufficiently detailed to really tease out the issues between you. I – at the moment, I’ve got a statement of claim which seems to me to be deficient. I’ve got a defence that essentially says nothing and that’s unsurprising because the statement of claim doesn’t really push the respondent to set out its case. I’m not allowing this matter to go forward on this basis. I just don’t know where it would go. I mean, how – what are you proposing to do? Go into settlement after – go into settlement discussions after an opt out notice goes out? Is that the idea?

MR DORAN:    That is the idea, sir, but the idea is on the basis that –

HIS HONOUR:    Well, how would you know what to settle for? What details do you have of the work done by the group members and how much they might be owed?

…

I can’t see the court approving a settlement on the basis of – a settlement that’s been reached on the basis of a lack of information.

MR DORAN:    I’m not proposing that the court would approve a settlement on the basis of a lack of information, your Honour.

HIS HONOUR:    Well, I just don’t – I don’t – I’m at a loss at the moment given the lack of particularisation of the applicant’s claim. I’m at a loss to understand how this matter can even move to mediation.

…

I’ve got no basis for being able to assess, at least on the pleadings, what the real nature of this dispute’s about. I mean, there may be no argument between you as to what the applicant actually did. This may be a characterisation dispute. There may well be a dispute between you as to what role the applicant actually performed.

I don’t know that. The pleadings don’t tell me that, and the problem is that the statement of claim doesn’t make the allegations that it needs to make in order to allow the defence to properly identify what it is in dispute. That’s the first problem, and then the statement of claim, at least in relation to the applicant, should then set out the nature of the claim and what are the underpayments, over what periods, and how much? How much overtime was worked, and what of it was not paid. I mean, this statement of claim doesn’t tell me anything.

I mean, you might say to me that you need some discovery. Well, we can talk about that, but at the moment, Mr Doran, I’m not prepared to allow the matter to go forward without the statement of claim being put into proper form.

42    Mr C Tran of counsel, who appeared for the respondent, also raised the limitation period issue. The following exchange then took place:

HIS HONOUR:    … Mr Doran, am I right to think, given what Mr Tran’s said, that you accept that the claims are statute barred at least in relation to the periods prior to 24 August 2014?

MR DORAN:    Well, it doesn’t matter whether I accept it, your Honour, it’s what the Fair Work Act says in relation to claims before 24 August 2020, being the date upon which the proceeding was issued.

…

HIS HONOUR:    It matters in this respect, Mr Doran. Your definition of group members extends to persons employed before that time.

MR DORAN:    Yes.

HIS HONOUR:    So why should we bother those people?

MR DORAN:    Well, we’re not bothering them. Your Honour, we’re preserving the right that they might otherwise have if they worked a shift and were paid after 24 August 2014.

HIS HONOUR:    Well, why shouldn’t the group membership, the definition, reflect the practical capacity of the claim to provide relief. Because otherwise, you’re going to involve people who might have worked before 2014, whatever the date was. You might involve them in the proceeding. They would have to be contacted. They would have to consider opting out or not opting out, but for what purpose?

MR DORAN:    Well, it would be to no purpose. I accept that, your Honour.

HIS HONOUR:    Well, then shouldn’t you amend your group membership definition?

MR DORAN:    Yes, for the sake of clarity.

HIS HONOUR:    All right. So you need leave to amend your amended originating application. Do you seek that leave?

MR DORAN:    Well, in the wake of your Honour’s comments today, I would be seeking leave to file and serve both –

HIS HONOUR:    All right.

MR DORAN:    – I think that amended originating application and the second further amended statement of claim.

…

HIS HONOUR:    Why is [the statement of claim] referring to proceedings in the South Australian Employment Tribunal at paragraph 21 and 22, I think.

MR DORAN:    Yes.

HIS HONOUR:    Telling me that there are other proceedings which are on all fours with this one. How does that – well, what is that, a legal submission?

MR DORAN:    It was to provide a factual context to the claims being made by the applicant and the group members here in that they were analogous to the claim that was made in the South Australian Employment Tribunal by Mr [Hosseini] also against Life Without Barriers.

HIS HONOUR:    What’s the relevance?

MR DORAN:    Well, it’s not relevant to the extent that the decision in that case must, by definition, mean that there’s the same decision in this case, but it does point to a circumstance where it was, if not an identical situation, a similar situation where –

HIS HONOUR:     Well, it sounds like a legal submission of some sort. How are those matters material facts? And if they’re not, they shouldn’t be in the statement of claim. … I would just urge you to think about what material facts need to be pleaded and whether your statement of claim pleads matters which go beyond material facts of any relevance to the case. What I would expect at this point, given the normal approach, Mr Doran, that in an initial trial in this class action, what would be tried would be the applicant’s claim together with the common questions, what I would expect is a, properly particularised statement of claim setting out the nature of the claim of the applicants and the group members, but then particularising the applicant’s claim sufficiently to allow a proper response from the respondent.

43    Justice Bromberg then made orders for discovery, that the applicant file and serve a further amended originating application and a second further amended statement of claim by 1 September 2021, that the respondent file and serve its defence by 27 September 2021, and that the applicant file and serve any reply by 11 October 2021.

44    Corrs sent Nevett Ford further correspondence in relation to discovery over the course of the subsequent few months, in relation to which it is necessary only to note that orders were made by consent on 6 August to extend the deadline for discovery to 30 August 2021, and that the respondent provided discovery on 31 August and 13 September 2021 (with the exception of some documents which had not been provided because the respondent had encountered difficulties with its hard copy records).

45    On 13 September, Mr Woodhouse sent a letter to Mr Doran, requesting an update as to when the applicant expected to be in a position to serve the amended pleadings pursuant to the 2 June 2021 orders.

46    On 27 September, Ms Philippa Munton, a Senior Associate at Corrs, sent Mr Doran an email noting that the applicant was due to have provided his discovery by 30 August and served his amended pleadings by 1 September, and that Corrs had not received any correspondence in relation to either of those matters.

47    Mr Doran responded via email on 6 October, relevantly as follows:

I plan to have the applicant’s list of documents filed and served by 15 October 2021 and the amended statement of claim filed and served by 29 October 2021.

Please let me have your response to this so that I can prepare orders to modify the timetable set out in the orders dated [2] June 2021.

48    Ms Saunders responded to Mr Doran’s email the next day, advising that the respondent consented to those timeframes, subject to Mr Doran’s confirmation that the applicant would also file a further amended originating application, and that there would be extensions of time for the balance of the timetable.

49    Mr Doran sent an email to Ms Saunders the following week, copying Ms Munton and Mr Woodhouse and attaching a proposed minute of order setting out the proposed amended timetable. However (for reasons that are not clear from the evidence), it does not appear that any order was actually made.

50    On 15 October, Nevett Ford provided discovery on behalf of the applicant.

51    Mr Woodhouse sent a letter to Mr Doran on 19 November, noting that while the respondent had expected to complete discovery by 30 October, that was no longer possible. Mr Woodhouse also requested an update as to when the applicant expected to be able to file the amended pleadings, noting that the 29 October date agreed upon in correspondence had passed.

52    On 21 December, Mr Doran sent an email to Ms Munton, copied to Mr Woodhouse and Ms Saunders, which relevantly read:

I have not been able to give this matter the attention it deserved since I provided you with a copy of the applicant’s list of documents because of other commitments that I have had.

This is not to excuse a lack of action but only to explain it.

Mr Askari has asked to step down as the lead applicant and I am in the process of finding a suitable replacement from the group identified to me.

As I read the court rules a formal application will need to be made for the substitution out of Mr Askari, who intends to remain part of the representative proceeding as a group member.

This development will have a ‘knock on’ effect in relation to the amendment of the statement of claim as was ordered on 2 June 2021.

Presently I am working on regularising matters so that substitution and the amendment of the statement of claim are completed by 4 February 2022.

53    Ms Munton responded to Mr Doran’s email two days later, stating that it would be appropriate for the delay to be brought to the attention of the court, and requesting that Mr Doran provide a draft proposed communication to the court.

54    Mr Woodhouse deposed that Corrs did not receive any response to Ms Munton’s email, and that he did not receive any further correspondence from Nevett Ford in relation to the proceeding until 31 May 2022, when Mr Doran emailed Mr Woodhouse (copying Ms Saunders and Ms Munton), attaching proposed orders ahead of a case management hearing scheduled for 1 June 2022, including an order providing for an application under s 33T of the Federal Court Act to substitute another group member as representative party of the group in place of Mr Askari.

55    Mr Doran and Mr Woodhouse appeared for their respective clients at the case management hearing on 1 June 2022 before Bromberg J. At the commencement of that hearing, Mr Doran read out what he described as a “prepared statement”:

In relation to this matter, I was first instructed in the underpayment claim in early July 2020. After ascertaining approximately 70 former employees of the respondent who claim that they had been underpaid, the application was issued on 24 August 2020 as a representative proceeding. The significance of the date of 24 August 2020 is important by virtue of the operation of section 545, subsection (5) of the Fair Work Act which states:

A court must not make an order under this section in relation to an underpayment that relates to a period that is more than six years before the proceedings concerned commenced.

The proof or otherwise of the applicant’s and, by extension, the group members’ claims lies in documents that the respondent was likely to have retained, the applicants and the group members not having the depth of records that you might expect the respondent to have. On 2 June 2021, your Honour made orders as to the conduct of the proceeding, including discovery between the parties. The respondent’s discovery as provided to this date – and documents have been provided to me, your Honour – in my assessment, throws serious doubt on the applicant being able to maintain that he has an underpayment claim that is within six years of 24 August 2014.

Notwithstanding this, the applicant and the other group members remain of the view that they have been underpaid during their period of employment with Life Without Barriers, the respondent, but it is not clear to me that any underpayment of the group members falls into the period after 24 August 2014.

56    Mr Doran then accepted that, based on his inspection of the employment records for the applicant and a second group member received as part of the respondent’s discovery, “what I would have to concede … is that if what is contained in the discovery as it relates to the applicant and this second group member is replicated for the other group members, then, in my view, there would be a difficulty with the proceeding being able to continue”. The following exchange then occurred:

MR DORAN:    … I am seeking the court’s indulgence so that I can review the discovery that the respondent has provided in relation to the other group members to see if there is a group member who can be substituted for the applicant so that the application continues.

HIS HONOUR:    So the long and the short of it is that at the moment it’s not apparent to you whether there are any group members who are not time barred.

MR DORAN:    That is correct, your Honour. … Keep in mind, your Honour, if I may, that there are 84 people identified within the group who had varying periods of employment with the respondent, and the inspection of the documentation as provided to me by the respondent at this stage has not been completed, but the early indications are, as I said before, that if what has been discovered continues, then there would be a difficulty insofar as the operation of section 545(5) of the Fair Work Act applies.

HIS HONOUR:    … I made orders for discovery on 2 June 2021. Discovery was to be provided on or before 6 August 2021. Did that occur?

…

MR WOODHOUSE:    I understand that the process is ongoing. The challenges involve the accessing of archive information technology systems and the recreation of information from those systems. I should indicate, though, your Honour, I don’t understand that it’s my friend’s position that the absence of these records has a bearing upon the matters being raised by my friend this morning.

HIS HONOUR:    Yes. All right. Well, Mr Doran, you’ve had discovery since 13 September 2021. Has there not been sufficient time to do the work that you say you now need to do?

MR DORAN:    There probably was sufficient time, your Honour, and I did not devote the time and resources to doing it.

57    In response to an observation by Bromberg J that the responsibility for the non-compliance with orders made over a year prior to the case management hearing seemed to lie largely with Mr Doran, Mr Doran responded: “It’s not largely, your Honour. It’s entirely”.

58    Justice Bromberg made orders at the case management hearing vacating the orders made on 2 June 2021 that required the parties to file and serve their respective amended pleadings, and relisting the matter for case management on 17 June 2022, “in the expectation that all of the work required to be done … in terms of identifying whether any group members are not time barred and the extent of any claim they might have, would be done by then” and that Mr Doran could, at the next case management hearing, advise as to what the applicant intended to do.

59    The next case management hearing duly took place on 17 June, at which Mr Doran advised that he had reviewed two thirds of the group members’ underpayment claims, and his understanding was that all those claims were time-barred. Mr Doran also said that, in the course of his further investigations of the discovered documents, his view was that there may be contraventions of the Award, other than underpayment, that continued even after 24 August 2020. However, Mr Doran conceded that “at this point, if the two thirds are demonstrated in the one third still to come, then probably the underpayment claim itself, if that was the only basis on which the proceeding was founded, then it probably could not proceed”. In response to a question from Bromberg J as to why he had not had the opportunity to look at the remaining one third of claims, Mr Doran said, “I can’t say anything more than the time available to me was not sufficient for me to get the whole task completed”.

60    At this case management hearing, no application was made for the substitution of Mr Askari as the lead applicant, and Mr Doran indicated that he would obtain further instructions from Mr Askari and the group members on the matter.

61    The case management hearing was adjourned to 24 June 2022. The day before the scheduled case management hearing, Mr Doran emailed Mr Woodhouse, copied to Ms Saunders and Ms Munton, advising that he was “without instructions for the case management hearing”.

62    At the case management hearing on 24 June, Mr Doran said that he was “without instructions as to the further conduct of this matter”, and was not able to say whether he expected to obtain instructions. In response, Mr Woodhouse said that he was instructed to make an application for the respondent’s costs of the case management hearing, and that he would need time to take instructions as to whether the respondent wished to make an application to dispose of the proceeding. Justice Bromberg accordingly made orders adjourning the case management hearing to 28 July, and suspending any outstanding obligations imposed by the 6 August 2021 orders for the respondent to give discovery.

63    The respondent filed its interlocutory application to have the proceeding dismissed on 14 July 2022. Accordingly, the case management hearing originally scheduled for 28 July was vacated.

64    The matter was then re-allocated to my docket. On 1 September 2022, I directed that the parties file any written submissions on which they wished to rely. They duly did so. Having considered those submissions and Mr Woodhouse’s affidavit, I determined that it was appropriate in all the circumstances to determine the matter on the papers.

Consideration

65    By its interlocutory application, the respondent sought orders dismissing the proceeding under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) and that the applicant pay the respondent’s costs of and incidental to the proceeding.

66    I will turn first to the question of dismissing the proceeding.

67    Rule 5.23(1)(b)(i) provides:

5.23    Orders on default

(1)    If an applicant is in default, a respondent may apply to the Court for an order that:

(a)    …

(b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately …

68    Rule 5.22 defines when a party is in default, as follows:

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

69    The principles relevant to the application of O 10, r 7 of the Federal Court Rules 1976 (Cth) (the predecessor to r 5.23) were discussed in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395-397 (Wilcox and Gummow JJ):

It is to be noted that the power given by [O 10, r 7, now r 5.23] is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

…

The observations which we have just made about the scope of O 10, r 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding. On the contrary, the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim … We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.

The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court’s directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.

70    In Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at 60 [35]ff, the Full Court said that the power in r 5.23 “is similar to that conferred by the former O 10 r 7”.

71    As Wilcox and Gummow JJ observed in Lenijamar, the relevant power “is conditioned on one circumstance only”, being that a party “is in default”. In the current proceeding, the respondent relied on the applicant’s failure to prosecute the proceeding with due diligence.

72    The applicant filed brief written submissions, which were said to be made “insofar as it addresses the issue of section 570 of the Fair Work Act 2009” (that is, the costs issue). The applicant made no submissions as to the question of whether the proceeding should be dismissed pursuant to r 5.23, although the respondent submitted, and this is obviously so, that the court must be independently satisfied that this is an appropriate case in which to exercise the discretion to dismiss the proceeding.

73    Having considered the parties’ submissions, and having had regard to the history of the proceeding that I have set out above, I am satisfied that the applicant is “in default” by reason of his failure to prosecute the proceeding with due diligence. The following facts, which the respondent emphasised in its written submissions, are particularly relevant:

(1)    the proceeding has been on foot for over two years, yet there is still no proper originating motion and statement of claim;

(2)    the limitation period issue has been live since 1 February 2021, and Mr Doran accepts that there is a limitation problem but has not been able to identify any claim that is not time barred;

(3)    on 21 December 2021, Mr Doran advised that Mr Askari wished to withdraw as the lead applicant, and raised this issue at the case management hearings on 1 and 17 June 2022, but no suitable replacement applicant has been put forward and no application for any substitution has been made; and

(4)    at the last case management hearing, Mr Doran had no relevant instructions to progress the matter.

74    The power to dismiss the proceeding having been enlivened, there remains the question of whether this is an appropriate case in which to do so.

75    In my view, in all the circumstances, it is appropriate in this case to make such an order.

76    As the respondent submitted, this proceeding falls within the first category in Lenijamar where “the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period”. It seems to me that the history of non-compliance here indicates such an unwillingness to cooperate. The applicant was in default of the June 2021 orders requiring the filing of amended pleadings, which was not cured by the applicant doing what was required of him, but only by Bromberg J making orders almost a year later to vacate the earlier orders. No satisfactory reason for this delay has been proffered.

77    While it is not the case that “any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding”, it seems to me that here, the failure to comply with court orders, the length of time of that non-compliance, the lack of a reasonable explanation as to that delay, and the lack of any indication (prior to Bromberg J vacating the orders) as to when that non-compliance would be cured, if at all, weigh strongly in favour of dismissing the proceeding.

78    Further, as Wilcox and Gummow JJ said in Lenijamar, “the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule”.

79    In this regard, the fact that Mr Doran appeared without instructions at the last case management hearing and has not indicated that there is any person who is willing to take the place of the lead applicant are particularly important considerations. Further, Mr Doran candidly accepted at the case management hearing on 1 June 2022 that “if what is contained in the discovery as it relates to the applicant and this second group member is replicated for the other group members, then, in my view, there would be a difficulty with the proceeding being able to continue”. But the applicant has given no indication as to when he may complete any such analysis that could confirm whether the proceeding can continue. With respect, the applicant has been unable to articulate what the next steps in prosecuting the matter may be, or how he envisions the proceeding progressing.

80    These circumstances indicate that, as the respondent submitted, there is no person who actually wishes to prosecute the matter, and it seems to me that neither the applicant nor any group member actually “wishes the matter to go to trial within a reasonable period”, if they wish for the matter to go to trial at all.

81    Accordingly, I am satisfied that this is an appropriate case in which to exercise the discretion to dismiss the proceeding in its entirety.

82    I turn now to the question of costs. As a proceeding instituted under the FW Act, any order awarding costs must be made pursuant to s 570 of that Act, which provides as follows:

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.

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

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

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

83    The respondent sought orders that the applicant pay its costs of and incidental to the proceeding, relying in particular upon s 570(2)(b).

84    The authorities establish that, in relation to whether a party’s unreasonable act or omission caused the other party to incur costs, “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”, and “[s]imply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion … to make a costs order”. See Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 [29] (Tamberlin, Gyles and Gilmour JJ) in relation to s 824 of the Workplace Relations Act 1996 (Cth), which was in relevantly similar terms to s 570 of the FW Act.

85    The respondent submitted that this was a case in which the proceeding was “misconceived in the sense of being incompetent or unsupportable”, because it was clear that the applicant commenced the proceeding without having made any attempt to calculate his own underpayments, which might have helped reveal that his claim was statute barred, as were the claims of group members.

86    The respondent also pointed to the fact that the applicant has:

(1)    relied upon defective pleadings from the outset;

(2)    been slow to respond to correspondence and when responding did not engage substantively with the respondent;

(3)    not been in a position to advance matters at case management hearings; and

(4)    not been able to identify any claims which are not statute barred, despite efforts to do so.

87    I accept that the proceeding was misconceived in the sense of being incompetent or unsupportable, and that the applicant’s unreasonable acts caused the respondent to incur the costs. This is not a case in which reasonable arguments were simply rejected by a court, but one in which, by Mr Doran’s own admission, “there would be a difficulty with the proceeding being able to continue” if it was the case that all the group members’ claims are time barred. And yet the applicant failed to identify the limitation period issue or, once the issue was brought to his attention, address it effectively.

88    As the respondent submitted, the pleadings were defective from the beginning because they failed to identify or define relevant group members. And although the applicant then sought to address this through filing the FASOC and the amended originating motion, these amendments brought to light the limitation period issue. See [20]-[23] above. The applicant’s pleadings have not, at any stage since the commencement of the proceeding, articulated the basis upon which he and the group members are able to claim relief.

89    Further, the applicant was aware of the limitation period issue, and his unexplained delay in filing any amended pleadings to address the issue in default of court orders was also unreasonable in the circumstances. As is clear from the facts set out above, the issues with the pleadings occupied much of the correspondence and case management hearings, and the failure to comply with the orders to amend the pleadings (responsibility for which Mr Doran accepted lay “entirely” with him) prevented the proceeding from progressing at all. This obviously caused the respondent to incur costs, in that it was required to address this issue in correspondence and at several case management hearings, with no progress being made through no fault of its own.

90    With respect, the applicant’s submissions on the costs issue go no further than to contend that the court should not order costs against him because he, and the other group members, considered that they had grounds for commencing and continuing the proceeding and that accordingly, the applicant and group members did not act unreasonably or fail to do any act which otherwise caused the respondent to incur costs.

91    First, the applicant submitted that he, and the group members, sought to take advantage of the South Australian Employment Tribunal decisions involving Mr Hosseini, and that the “substance of the judgment as to findings of underpayment and the imposition of pecuniary penalties still applied” notwithstanding that those earlier decisions were reversed by the Full Bench on jurisdictional grounds on 31 August 2020 in Life Without Barriers v Hosseini [2020] SAET 163, and that the respondent has never argued that the continuation of this proceeding was a fruitless exercise in the wake of that Full Bench decision. The applicant also argued that in exercising any discretion under s 570 of the FW Act, the court should take into account that the application of a limitation period has been conceptually difficult for the applicant and group members to understand in circumstances where they see themselves “in the identical position of Mr Hosseini in the cases heard in the South Australian Employment Tribunal”.

92    That an applicant “sought to take advantage” of other decisions in relation to the same respondent is irrelevant, as is the fact that the applicant and group members may have had difficulty understanding that their claim may be without merit. With respect, an important reason why parties may choose to retain legal practitioners to represent them is, in an appropriate case, to have difficult legal concepts explained to them. And as the respondent submitted, it is no role of s 570(1) to immunise applicants from costs consequences where they have been told that their claim is hopeless, but have difficulty accepting that proposition.

93    The applicant’s submissions note that as a result of the respondent’s discovery, “an assessment was able to be made of the degree to which any limitation period would apply” and “written advice was provided to the applicant and class members in the wake of the [respondent’s] discovery” on 5 March 2022, but “instructions have not been forthcoming”. From as early as 13 March 2021, Mr Doran himself agreed with the propositions put by the legal representatives for the respondent regarding the group definition, but could not “obtain instructions to agree”. See [36] above. It seems to me that the applicant and group members’ conduct in refusing to accept legal advice from their own representatives, and refusing to provide instructions, can only be described as unreasonable.

94    Further, while the decisions in relation to Mr Hosseini may have motivated the applicant and group members to commence and continue this proceeding, this does not relieve them of the obligation properly to plead their case on the facts relevant to this proceeding. As Bromberg J observed at the 2 June 2021 case management hearing, the references to the litigation in the pleadings do not constitute material allegations of fact.

95    The applicant also submitted that it was relevant that the applicant and group members are aware of other large employers which have self-reported underpayments but where as they understand it, such employers are not relying on limitation periods in the assessment of such claims. The applicant did not adduce any evidence to support this claim. But, in any event, it is self-evidently irrelevant.

96    Finally, the applicant also submitted that he and the group members had attempted at all times to address the respondent’s concerns regarding procedural matters. That is simply not so, as the sorry history set out above makes clear.

97    Accordingly, I am satisfied that the applicant’s unreasonable acts caused the respondent to incur costs.

98    The respondent also relied upon s 570(1)(a) (that the proceeding was instituted without reasonable cause). However, the only submissions made by the respondent in this regard relied upon the passages set out above from Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 [29], which address only the question of whether a party’s unreasonable act or omission caused another party to incur costs. In light of my reasons in relation to s 570(1)(b), it is unnecessary to address the issue of whether the proceeding was instituted without reasonable cause.

Disposition

99    For the reasons set out above, I will order that:

(1)    Pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) the proceeding be dismissed.

(2)    The applicant pay the respondent’s costs of, and incidental to, the proceeding, fixed in a lump sum following a procedure and timetable to be ordered by the Court in accordance with the Costs Practice Note (GPN-COSTS).

Associate:

Dated:    15 November 2022