Federal Court of Australia

Pigozzo v Mineral Resources Ltd (No 2) [2023] FCA 478

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 50% of the costs of the first and second respondents of the application for leave to appeal (including the application for costs), but excluding the costs of the application for an extension of time made on 31 January 2023.

2.    The costs payable under these orders be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Steven Pigozzo was formerly employed by Mineral Resources Ltd (MRL). He claims that MRL, its chief executive officer and one of its senior managers contravened the Fair Work Act 2009 (Cth) in respect of his employment. He claims to have been unlawfully dismissed from employment. He also alleges that a firm of solicitors aided and abetted the alleged contraventions. An application to strike out the statement of claim in proceedings brought by Mr Pigozzo in this Court was successful. Leave was given to re-plead.

2    Mr Pigozzo brought an application for leave to appeal the decision to strike out the pleading. The application identified 39 proposed grounds of appeal. To a significant degree, the complaints made were to the effect that the primary judge adopted an overly technical approach which was said to be a departure from modern practice. It also advanced a claim that, as to a specific part of the pleading that was struck out, it was not possible to re-plead because there was no further factual matters to plead. There was also an issue as to whether by reason of fraud or an iniquity, there was no privilege in certain material that Mr Pigozzo sought to rely upon in his pleading. In those two limited respects, the proposed appeal was formulated as an appeal that would have consequences for the ongoing conduct of the claim. Otherwise, it was not suggested that the case could not be re-pleaded to address the concerns exposed by the primary judge or that there would be undue expense or difficulty in doing so.

3    The claim that it was not possible to re-plead the specific part of the statement of claim was not accepted. It was also found that the decision by the primary judge on the strike-out application did not finally determine the question whether there could be a pleading of a properly formulated claim that referred to particular material on the basis that there was no privilege by reason of fraud or iniquity. As to the other proposed grounds it was found as follows (Pigozzo v Mineral Resources Ltd [2023] FCA 331 at [36]):

Finally, it is apparent from the extent of the grounds that Mr Pigozzo seeks to pursue on appeal that there has been no real effort to confine those grounds to what is significant. The identification of 39 separate grounds of appeal arising from a pleading summons each of which is alleged to be of sufficient significance that leave ought to be given for its consideration by the Full Court indicates a lack of discrimination. Senior counsel invited the Court on the leave application to consider each ground not specifically addressed in submissions. Each of the remaining grounds was said to be an example of the primary judge applying an unduly pedantic approach that was not consistent with modern practice. Nothing more was said about them. For reasons that have been given, a claim of that kind is not a sufficient basis upon which to seek leave. It is a complaint about a matter of pleading practice and procedure that is not said to have any particular consequence.

4    In those circumstances, leave was refused.

5    The active respondents to the application for leave to appeal (MRL and its chief executive officer) now seek an order that Mr Pigozzo pay the costs of the application for leave (including the costs of an unsuccessful interlocutory application for an extension of time based upon availability of counsel and the costs of the application for costs).

6    Section 570 of the Fair Work Act limits the circumstances in which such a cost order may be made. It provides that a 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 [Fair Work Commission];

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

7    The respondents submit that the application for leave to appeal was totally unnecessary because leave to re-plead was given and there was no cogent or convincing reason why that course was not taken. It was submitted that the bringing of the application had delayed the proceedings and related proceedings (that had been stayed pending the outcome of the application) for six months. It is claimed that the appeal was commenced unreasonably.

8    In addition, it is claimed by the respondents that the application for leave to appeal was pursued in an unreasonable manner. The respondents point to the fact that the application for leave proposed 39 grounds of appeal in respect of a statement of claim that contained 49 paragraphs. They also submit that the grounds were not confined, substantial affidavits were filed (to which no real reference was made) and even though oral argument on many of the grounds was confined it was necessary for the respondents to consider and address each of the grounds in dealing with the leave application.

9    In response, Mr Pigozzo emphasises the policy behind the terms of s 570. He relies upon the summary of the relevant principles by Bromberg J in Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 at [7]-[9]. Those principles emphasise the need for something that can properly be characterised as unreasonable. The emphatic rejection of arguable grounds of appeal is not, of itself, a basis for concluding that the appeal was commenced unreasonably in the relevant statutory sense: Liu v Stephen Grubits and Associates (No 2) [2019] FCAFC 42 at [22] (Reeves, Kerr and Lee JJ).

10    Having regard to long-standing principles discouraging appeals concerning matters of practice and procedure (Pigozzo v Mineral Resources Ltd at [3]), the scope of the appeal could not reasonably be justified in circumstances where leave to re-plead had been given. Even more so when it was advanced without any apparent discrimination.

11    The only reasonable bases for an application for leave to appeal in the present case were the points in relation to (a) whether the decision of the primary judge meant, in effect, that part of the case could not be advanced because there was nothing more to plead; and (b) whether the issue of fraud or iniquity had been determined. If the application for leave to appeal had been confined to those points then, in my view, it could not have been characterised as unreasonable (even though ultimately firmly rejected). Further, if the application had been so confined then it could have been dealt with quickly and efficiently.

12    I am not satisfied that the bringing of the interlocutory application for an extension of time was unreasonable in the requisite sense. It sought to have the application listed at a time that was convenient to counsel for Mr Pigozzo. It was refused on the basis that listing the matter having regard to the limited availability of counsel would have resulted in a considerable delay.

13    In my view, the discretion to award costs has been enlivened to the extent indicated. In considering whether to make a costs order, there should be regard to the evident statutory purpose to the effect that the risk of cost orders should not operate to discourage the bringing of claims by parties seeking to avail themselves of the statutory protections afforded by the Fair Work Act. The discretion should be exercised with some caution: Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ).

14    I am satisfied that, in the circumstances I have described, the discretion should be exercised in favour of making a costs order. It was suggested that in deciding whether to make such an order I should have regard to the size of MRL. It is perhaps conceivable that the commercial size of a responding party may have relevance to an assessment as to whether the conduct of the other party was reasonable. However, it seems unlikely. That is because the legislation is directed towards an assessment of the reasonableness of the conduct of the party against whom a costs order is sought. In the present case, I do not consider it to be a relevant matter.

15    The appropriate way to give effect to the conclusions I have reached is to order that Mr Pigozzo pay 50% of the costs of the appeal (including the application for costs), but excluding the costs of the application for an extension of time.

Associate:

Dated:    16 May 2023