Federal Court of Australia
Talbot v Tesolin Consulting Pty Limited trading as Ray White Quakers Hill [2023] FCA 925
ORDERS
Applicant | ||
AND: | TESOLIN CONSULTING PTY LIMITED T/AS RAY WHITE QUAKERS HILL Respondent | |
DATE OF ORDER: | 10 august 2023 |
THE COURT ORDERS THAT:
1. The respondent’s application for an order for costs arising from the amendment of the applicant’s Statement of Claim be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GOODMAN J
1 On 26 June 2023, I made an order granting leave to the applicant to file an Amended Statement of Claim. The respondent sought an order in its favour concerning the costs of that amendment.
2 It is common ground that as the proceeding relates to a matter arising under the Fair Work Act 2009 (Cth) (FW Act), no order for costs may be made unless the Court is satisfied of the presence of one or more of the circumstances described in s 570(2)(a), (b) or (c) of the FW Act, and then exercises its discretion so as to make an order for costs.
3 The respondent contends that the Court should be satisfied that unreasonable acts and omissions of the applicant relating to the amendment of the Statement of Claim caused the respondent to incur costs, thus satisfying s 570(2)(b); and that the Court should exercise its discretion so as to order the applicant to compensate the respondent for those costs. For the reasons set out below, I do not accept the respondent’s contention.
4 In view of the submissions made by the respondent in support of its contention, it is necessary to set out the background facts in some detail.
5 The applicant commenced this proceeding on 5 January 2023 by filing an Originating Application. On 23 February 2023, I made orders, by consent, for the filing of pleadings, including orders requiring the applicant to file and serve her Statement of Claim by 10 March 2023; and the respondent to file and serve its Defence by 7 April 2023. On 10 March 2023, I made orders by consent, extending the timetable by seven days.
6 On 17 March 2023, the applicant filed and served her Statement of Claim. Broadly stated, the Statement of Claim included the applicant’s claims that: she was employed by the respondent on terms that included those set out in an Employment Contract dated 14 June 2022; the Employment Contract included a term, implied by law, that the respondent would take reasonable care to provide her with a safe place of work (Safe Work Term); as the result of a function held on Melbourne Cup Day 2022 the respondent breached the Safe Work Term as well as various provisions of the FW Act; and, as a result of which the applicant suffered loss and damage.
7 Of present relevance are the following paragraphs of the Statement of Claim:
B: The Applicant’s engagement with the Respondent
6. The Employment Contract included an implied term that the Respondent would take reasonable care to provide the Applicant with a safe place of work (Safe Work Term).
Particulars
The Safe Work Term was implied by law.
…
G. Contraventions and breaches by the Respondent
…
G.2 Breach of contract- Safe Work Term
38. By way of its actions at the work function of 1 November 2022 pleaded at [11] above, the Respondent, or, on its behalf, its agents, employees etc breached the Safe Work Term of the Applicant’s employment (Breach of Safe Work Term).
H. Loss and damage
39. By reason of the contraventions of the FW Act and the Breach of Safe Work Term, the Applicant has suffered loss and damage.
Particulars
Lost income;
Mental harm;
Hurt, humiliation and distress;
Loss of enjoyment of life;
Requirement for ongoing psychological and medical treatment; and
Further particulars to be provided prior to trial.
Relief Claimed
40. The Applicant seeks the following relief:
a. in relation to the contraventions of the FW Act:
i. a declaration that the Respondent contravened s.340 of the FW Act;
ii. further, or in the alternative to (i) above, a declaration that the Respondent contravened s.352 of the FW Act; and
iii. an order, pursuant to s.545 of the FW Act, for compensation for loss that the Applicant has suffered because of the contravention(s) cited at (i) and/or (ii) above; and
iv. an order, pursuant to s.546 of the FW Act, imposing a pecuniary penalty upon the Respondent, payable to the Applicant.
b. in relation to the Breach of Safe Work Term, damages for loss sustained;
c. interest;
d. costs; and
e. such other orders as the Court thinks fit.
(emphasis in original)
8 On 22 March 2023, the solicitor for the applicant wrote to the solicitor for the respondent:
I refer to the below matter and the filed statement of claim as served last week.
I note that it has come to my attention that the document as filed was the incorrect copy of the statement of claim. As such, I would be seeking to file the corrected copy in lieu of the document filed last Friday.
If able, can I please have a chat with you, if able, regarding the above as I seek to correct this issue.
9 There is no evidence of a response to this email prior to 31 March 2023. On 31 March 2023, the solicitor for the respondent wrote to the solicitor for the applicant:
Please confirm that you will be sending a draft SMO for our review to amend the current orders.
10 There is no evidence of a response to this email.
11 On 14 April 2023, the respondent’s Defence was due to be filed. The respondent did not file a Defence. Instead, at 3:39pm on that day, the solicitor for the respondent wrote to the solicitor for the applicant (as written):
We refer to our previous correspondence with your firm requesting that you confirm your intention to amend the pleading. To date, we have not had the courtesy of a response and we assume you will not be amending. On that basis, we provide the following observations.
The statement of claim alleges that Ms Talbot has suffered a personal injury arising out of or in the course of her employment. We presume that Ms Talbot seeks to invoke the court’s jurisdiction in associated matters pursuant to s 32 of the Federal Court Act or otherwise within the court’s accrued jurisdiction.
The Respondent says that the claim for a personal injury is seriously deficient and does not plead the material facts that are necessary to give the Respondent fair notice of the case to be made at trial in that:
a) The claim was made within 6 months, contrary to s 151D of the Workers Compensation Act 1987 (NSW);
b) The claim does not allege that Ms Talbot has suffered any permanent Impairment, let alone that the degree of such impairment is at least 15%, contrary to s 151H(l) of the Workers Compensation Act;
c) The claim does not identify whether the alleged permanent impairment is an impairment arising from a physical injury or an impairment arising from a psychological injury contrary to s 151H(2) of the Workers Compensation Act; and
d) The claim does not allege that the degree of permanent impairment has been assessed as provided in s151H of the Workers Compensation Act and Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Therefore, we invite Ms Talbot to immediately amend her claim to either plead the essential elements of her claim or remove the claim. Our client will consent to Ms Talbot being given leave to amend her claim upon the payment of our costs thrown away.
If Ms Talbot does not seek to amend her claim, our Client reserves its right to seek to have the relevant paragraphs struck out pursuant to rule 16.21 of the Federal Court rules.
We await your urgent response and otherwise reserve our Clients rights and act on the assumption that until your clients position is confirmed, we will not be filing our Clients’ defence.
(I note that the reference to s 151D of the Workers Compensation Act 1987 (NSW) appears to be an error; and that a reference to s 151C appears to have been intended.)
12 On 11 May 2023, some four weeks later, and on the day before the scheduled case management hearing, the solicitor for the applicant responded:
We refer to your correspondence of 13 April 2023 (sic).
We note that as foreshadowed, we seek variation of the Statement of Claim filed in the proceedings, we also contemplate the matters as addressed in your aforementioned correspondence.
We note that we propose the following orders (as attached).
If suitable, we seek the filing of said orders by 12 today.
We look forward to your response.
13 On the same day, the solicitor for the respondent indicated the respondent’s consent to the proposed orders, and I made orders by consent providing for the applicant to file and serve her Amended Statement of Claim by 12 May 2023 and for the respondent to file and serve its Defence by 16 June 2023.
14 The applicant did not comply with the order requiring her to file her Amended Statement of Claim by 12 May 2023.
15 On 15 May 2023, the solicitor for the respondent wrote to the solicitor for the applicant noting that an Amended Statement of Claim had not been filed; and foreshadowing an application to “strike out the current claim and seek our costs for doing so” if the Amended Statement of Claim were not filed by 10:00am the following day.
16 On 17 May 2023, the solicitor for the respondent wrote to the solicitor for the applicant serving an unsealed strike out application and an affidavit in support made by the respondent’s solicitor, and indicating that the respondent would be approaching the Court seeking to have the matter re-listed to seek orders timetabling a strike out application. The email concluded:
As we have had no communication from your firm, this is the appropriate action to resolve extant issues.
17 The attached draft interlocutory application sought the following orders:
1. Paragraphs 6, 38 and 40(b) of the statement of claim filed on 17 March 2023 be struck out pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth).
2. The words “and the Breach of Safe Work Term,” in paragraph 39 of the statement of claim filed on 17 March 2023 be struck out pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth).
3. The Applicant pay the Respondent’s costs of this application pursuant to s 570(2)(b) of the Fair Work Act 2009.
18 The attached affidavit of the solicitor for the respondent stated:
…
2. On 14 April 2023 I sent a letter by email to the solicitors for the Applicant. …
3. I did not receive a reply to that letter.
4. On 11 May the Court made orders by consent that the Applicant would file and serve an amended statement of claim by 4:30pm on 12 May 2023.
5. As the Applicant had not complied with the order, at 3:35pm on Monday, 16 May 2023 I caused my paralegal to send an email to the solicitors for the Applicant. ...
6. I have not received a reply to that letter.
19 On 22 May 2023, the respondent sought the re-listing of the proceeding and on 24 May 2023, I re-listed the proceeding for case management on 31 May 2023. On 31 May 2023 at the case management hearing, I made orders for the respondent to file and serve any application, together with an affidavit in support, by 5 June 2023 and for the exchange of short written submissions concerning the proposed application.
20 On 2 June 2023, the solicitor for the applicant wrote to the solicitor for the respondent:
We write further to the listing in the above matter on 31 May 2023.
At the listing, the parties agreed that the Respondent defer any filing of a strike-out application until 5 June 2023, in order to enable the Applicant to consider the Respondent’s underlying assertions regarding the impugned paragraphs of the Statement of Claim (SOC), as communicated on 30 May 2023.
As we understand, the Respondent’s position is that (adopting the short-hand references used in the SOC), the claim pertaining to the Breach of Safe Work Term ought to be removed, as the relief sought for the purported breach of this term relates to a “personal injury”, and that this is impermissible in circumstances whereby the Applicant has not been duly assessed pursuant to the workers compensation legislation scheme.
In light of the Respondent’s position, the Applicant notes that it is her intention to amend her SOC. The amendments are reflected in the attached document.
In short, other than certain minor changes, the underlying amendment to the SOC is the relief now sought as a result of the purported Breach of Safe Work Tenn. As you will read, the relief sought is solely for “disappointment and distress”. It is not tethered to any personal injury. We note that seeking relief of this kind, subsequent to a breach of contract, is permissible, pursuant to the High Court decision of Moore v Scenic Tours Pty Ltd [2020] HCA 17 (Moore).
Whilst Moore dealt with relief sought pursuant to the Australian Consumer Law, its underlying principles are apposite for our matter and, critically, clarify the scope of relief that can be obtained for breach of contract. As noted in Moore, damages for disappointment and distress can be sought in circumstances whereby such contentions are “the rational reaction of an unimpaired mind” to a set of circumstances - and thereby sit distinct from any relief sought for personal injury. To be clear, therefore, in our amended SOC, consistent with Moore, the relief we seek for the purported Breach of Safe Work Term is limited to damages for disappointment and distress, and not for any personal injury. As you will read, for clarity, we have also explicitly noted this contention.
We are of the view that these amendments thereby satisfy the concerns raised by the Respondent, and that there is no need for the strike-out application.
Can you please advise of your position in relation to the above, and whether you consent for the enclosed amended SOC to be filed with the Court. If so, we also suggest that in any short minute to chambers, we include subsequent orders for a Defence, Reply and mediation.
21 The proposed amendments to the Statement of Claim, in so far as is presently relevant, were the deletion of the words “and the Breach of Safe Work Term” in paragraph 39 and the addition of paragraph 39A in the following terms:
39A. By reason of the Breach of Safe Work Term, the Applicant has suffered loss and damage.
Particulars
The Applicant claims damages for disappointment and distress as articulated in Moore v Scenic Tours Pty Ltd [20201 HCA 17 at [41]. For the avoidance of doubt, the loss and damage the Applicant contends is not related to any personal injury for the purposes of s.4 of the Workers Compensation Act 1987.
22 On 5 June 2013, the following emails were exchanged:
(1) the solicitor for the respondent (as written):
We have to hand the proposed amended Statement of Claim (“PASoC”) provided to our firm on 2 June 2023 at 11.33am.
We have had regard to the ordersd made on 31 May 2023 by the Court. Particularly, order #2 which requires that the Respondent file our Applicant and affidavit in support by 5pm today.
Our Client has been placed to costs because of the way in which the Applicant prosecutes her proceedings, including failing to amend their deficient pleading in accordance with previous orders. As such, and with a view to resolving the present issue, we require that the Applicant to confirm that’s she will pay the Respondents costs thrown away in the matter, on an ordinary basis, pursuant to s 570 (2)(b) of the Fair Work Act.
Costs of this type are of a specie not dissimilar to those considered recently by Snaden J in Isser v BHP WAIO Pty Ltd [2023] FCA 580.
Please have your response to our firm by no later than 4pm today as a failure to respond will see the Respondent comply with the current timetabling orders.
(2) the solicitor for the applicant:
You have corresponded to our office, and stated that:
1. You have to hand the proposed Statement of Claim; and
2. You suggest that our client be liable for costs in relation to proposed statement of claim.
In such correspondence, there is no matter for me to consider or reply to.
I note that you have also referred to the judgement of Isser v BHP WAIO Pty Ltd [2023] FCA 580.
I note that such case is authority for the position that costs in an interlocutory motion be costs in the cause of a penultimate proceedings and note that without further comment about the effect of such a case, cannot see how such is relevant to the matter at hand.
I note that I propose orders the following orders by consent as attached.
If acceptable, I would seek to urgently seek such be sent to the court for consideration before your client is to do certain things today.
(3) the solicitor for the respondent:
Those orders are not acceptable. We will proceed with the current orders.
(4) the solicitor for the applicant (as written):
In relation to the exchange of correspondence today.
For clarity, can you please confirm whether the proposed amended statement of claim duly addresses the purported the original shortcomings of the original statement of claim that you alleged?
And if so, is the sole issue between the parties the costs of the purported conduct of the applicant?
23 On 13 June 2023, the solicitor for the applicant wrote to the solicitor for the respondent:
We write further to the ongoing correspondence between the parties.
We note that since you have been in receipt of our draft amended statement of claim, the Respondent has not filed any strike-out application (as per the Court’s orders).
Accordingly, we presume that the draft amended statement of claim duly responds to the concerns the Respondent had indicated with our original pleading, and the matter can progress in the orthodox manner.
In the circumstances, and consistent with the deliberations of the parties before his Honour last week, we propose that the attached orders be filed with the Court.
Can you please advise of your position?
24 On 15 June 2023, the following emails were exchanged:
(1) the solicitor for the applicant:
We write further to our correspondence.
We note that the Respondent has not filed its interlocutory application upon receiving our proposed amended statement of claim.
In the circumstances, we reiterate our position that the parties enter into the proposed short minutes we served on you namely, namely that the parties file their respective pleadings and then the matter be allocated for mediation.
Can you please advise by close of business today whether you are amenable to this pursuit. If we do not hear from you we will be writing to the Court on Friday and exercising liberty to apply.
Our client reserves her costs position and rights generally.; and
(2) the solicitor for the respondent:
We do not consent to the filing of the proposed ASoC on the basis you have not agreed to pay our clients costs thrown away so we will be seeking an order for our costs on the next occasion.
...
The fact that you are now proposing an ASoC grounds our argument that the strike out application was necessary to deal with the defective pleading.
25 On 19 June 2023, the solicitor for the applicant wrote to the solicitor for the respondent:
We write in relation to your correspondence below.
We deny that there is any basis for a costs order against the Applicant. To the contrary we contend that the Respondent’s failure to both properly put the Applicant on notice about its position in relation to the original statement of claim and/or promptly liaise with either the Court or the Applicant about the management of this matter amounts to an unreasonable act or omission for the purposes of s.570(2)(b) of the Fair Work Act 2009 (Cth).
In any event, to ensure that this matter does not become further protracted, and consistent with s.37M of the Federal Court Act, we propose that any application(s) that either party seeks to agitate regarding costs be reserved and dealt with after the mediation or at any substantive hearing of the matter.
We contend that this is the most appropriate course of action and should be agreeable to you, for it reserves both parties’ rights and ensures the proper management of this case.
To that end, please find attached updated orders reflecting this position. Can you please advise by 12pm tomorrow if you are agreeable to this approach. We note that we otherwise intend to exercise liberty to apply and will rely on this correspondence.
26 On 21 June 2023, at the request of the solicitor for the applicant, I re-listed the proceeding for case management on 26 June 2023. On 26 June 2023, I made orders, inter alia, granting leave to the applicant to file her Amended Statement of Claim; for the parties to file any submissions concerning the costs of the amendment of the Statement of Claim; and for the question of costs to be determined on the papers. The amendments for which leave was granted and which are relevant to the present application are as follows:
39. By reason of the contraventions of the FW Act and the Breach of Safe Work Term, the Applicant has suffered loss and damage.
Particulars
Lost income;
Mental harm;
Hurt, humiliation and distress;
Loss of enjoyment of life;
Requirement for ongoing psychological and medical treatment; and
Further particulars to be provided prior to trial
39A. By reason of the Breach of Safe Work Term, the Applicant has suffered loss and damage.
Particulars
The Applicant claims damages for disappointment and distress as articulated in Moore v Scenic Tours Pty Ltd [2020] HCA 17 at [41]. For the avoidance of doubt, the loss and damage the Applicant contends is not related to any personal injury for the purposes of s.4 of the Workers Compensation Act 1987.
27 As noted above, the respondent contends that the discretion in s 570(1) of the FW Act to award costs in favour of a party to a proceeding is enlivened pursuant to s 570(2)(b) because unreasonable acts or omissions of the applicant caused the respondent to incur costs.
28 Section 570(2)(b) of the FW Act requires proof that: (1) the party against whom costs are sought has by its action(s) or omission(s), behaved unreasonably; and (2) those unreasonable act(s) or omission(s) caused the other party to incur costs: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 at [25] (Katzmann J).
29 Whether a party behaved unreasonably is a question that is to be determined objectively: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 at 402 [32] (Tracey J).
30 In Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574, the Full Court (Tamberlin, Gyles and Gilmour JJ) made the following observations concerning “an unreasonable act or omission” (at 582 [29]):
… 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 WR Act to make a costs order. ... 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.
31 The proposition that the discretion is to be exercised with caution is well-established. In Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8], the Full Court (Siopis, Collier and Katzmann J) endorsed the following explanation from Mortimer J (as her Honour then was) in Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at 122 [64]:
… The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s 611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s 570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) (2012) 203 FCR 430; [2012] FCAFC 103 at [3]-[4] per Jessup and Tracey JJ.
32 To similar effect, see Hutchinson v Comcare (No 2) [2017] FCA 370 at [7] to [9] (Bromberg J).
Were there unreasonable acts or omissions?
33 The respondent contends that the following were unreasonable acts or omissions of the applicant.
34 First, that the Statement of Claim was a defective pleading. The respondent submitted, in essence, that the applicant failed to plead the material facts necessary to sustain the personal injury claim for an alleged breach of contract particularised at paragraph 39 of the Statement of Claim; the applicant subsequently abandoned all loss and damage in relation to the alleged breach of contract so particularised and pleaded an entirely new and different claim in paragraph 39A; and the abandonment and re-pleading was a concession that the personal injury claim was misconceived in the sense of being incompetent or unsupportable for the reasons set out in the 14 April 2023 email.
35 I do not accept this submission. The pleading in the Statement of Claim in the paragraphs preceding paragraph 39 propounded claims based on: (1) contraventions of the FW Act; and (2) breach of contract. Paragraph 39 then pleaded that the applicant suffered loss and damage as a result of such contraventions of the FW Act and breach of contract. The particulars to paragraph 39 set out various heads of loss, and concluded with the statement that further particulars would be provided prior to trial.
36 In that form, the pleading was ambiguous as to which particulars accompanied the claimed contraventions of the FW Act and which accompanied the claimed breach of contract. It is possible that all of the particulars applied to both; that all of the particulars applied to one only (with particulars of the other to be supplied prior to trial); or that some of the particulars applied to one and some to the other.
37 Such ambiguity falls well short of unreasonable conduct. Further, contrary to the submissions made for the respondent, there was no failure to plead material facts; and the claim in contract was not abandoned. Rather than recognise the ambiguity (which it must be remembered arose from an incomplete set of particulars and not pleaded material facts) and seek to clarify it by correspondence with the solicitor for the applicant, the solicitor for the respondent appears to have embarked on a confrontational course which assumed that the particulars that could be considered to relate to personal injury accompanied the breach of contract claim and thus the applicant was propounding a claim in personal injury contrary to the Workers Compensation Act; and threatened a strike out on that basis.
(2) Failure to respond to correspondence
38 The second matter relied upon by the respondent was the failure of the applicant’s solicitor to respond to correspondence from the respondent’s solicitor. The respondent submitted, in essence, that the applicant’s solicitor failed to respond to the emails sent by the respondent’s solicitor on 14 April 2023 and 15 and 17 May 2023; and this failure, and in particular the failure to respond to the May 2023 correspondence sent by reason of the applicant’s failure to file her Amended Statement of Claim on 12 May 2023 in accordance with the order made on 11 May 2023, was contrary to the applicant’s obligations under s 37N of the Federal Court of Australia Act 1976 (Cth) and, as such, was plainly unreasonable.
39 It is clear from the chronology of events set out above that:
(1) the applicant’s solicitors did not respond to the 14 April 2023 email until 11 May 2023 (when the case management hearing scheduled for 12 May 2023 was looming);
(2) the applicant, having consented to an order made on 11 May 2023 that she file an Amended Statement of Claim by the following day, failed to comply with that order; and
(3) the applicant’s solicitor did not respond to the respondent’s solicitor’s emails dated 15 and 17 May 2023.
40 The applicant’s conduct has been far from ideal. In particular, the failure to file an Amended Statement of Claim on 12 May 2023 in accordance with an order made by consent the previous day was regrettable. That omission is unexplained.
41 Further, practitioners are expected to engage with correspondence from other practitioners in a timely manner. The evidence suggests that four weeks passed between the respondent’s solicitor’s 14 April 2023 email and the response sent on 11 May 2023. This delay is also unexplained.
42 Such conduct is unsatisfactory. However, I am not persuaded that it is conduct that is unreasonable within the meaning of that term in s 570(2)(b) of the FW Act. As the Full Court noted in Clarke at [29], unreasonableness is not established by inefficiency in the conduct of litigation. See also Hutchinson at [8].
(3) Time taken to abandon the personal injury claim
43 The third matter relied upon by the respondent is the time taken by the applicant to “abandon” her personal injury claim. The respondent submitted this time was excessive. I do not accept this submission, for the reasons set out at [34] to [36] above.
44 For the reasons set out above, I am not satisfied that the applicant has engaged in conduct that was unreasonable within the meaning of s 570(2)(b) of the FW Act. It follows that it is unnecessary to consider whether any such conduct caused the respondent to incur costs.
45 As s 570(2)(b) of the FW Act has not been satisfied, the discretion in s 570(1) of that Act has not been enlivened. In any event, I would not have exercised the discretion favourably to the respondent for the following reasons.
46 First, as noted above, the Defence to the Statement of Claim was due on 14 April 2023 pursuant to the orders made on 10 March 2023. The respondent’s solicitors received the Statement of Claim on 17 March 2023. They did not raise their concerns as to the Statement of Claim until four weeks later, late in the afternoon on 14 April 2023, the day on which the Defence was due.
47 Secondly, instead of complying with the order requiring the filing of a Defence by 14 April 2023 the respondent decided not to file a Defence and chose to send the 14 April 2023 email (which, as noted above, proceeded on an assumption that all of the particulars of personal injury related to the breach of contract claim). In this regard, the respondent was only required to plead to the material facts and not to the particulars set out in the Statement of Claim. The respondent has not suggested that it could not have pleaded to the material facts and there is no obvious impediment to it doing so.
48 Thirdly, it follows that the respondent has not itself conducted this proceeding with the efficiency, or compliance with Court orders, that is required (or that it demands of the applicant).
49 Finally, as pleadings were not closed, r 16.51(1) of the Federal Court Rules 2011 (Cth) allowed the applicant, at all relevant times, to file her Amended Statement of Claim without seeking the consent of the respondent or the leave of the Court, and the respondent’s demands that the applicant pay its costs as a condition of the respondent’s consent to the filing of the Amended Statement of Claim (see [11]; [22(1) and (3)]; and [24(2)] above) were misplaced. I note, for completeness, that the applicant did not seek an order for costs under s 570 of the FW Act against the respondent.
50 The respondent’s application for an order for costs arising from the applicant’s amendment of her Statement of Claim should be dismissed. I will make an order accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. |
Dated: 10 August 2023
