Federal Court of Australia

Obel v Central Desert Regional Council (No 4) [2023] FCA 967

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs of and incidental to:

(a)    the mediation referred to in paragraph 4 of the orders of 16 February 2023; and

(b)    the case management hearing on 28 April 2023.

2.    The costs are to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This action was dismissed by an order made on 28 April 2023. That order was made under r 5.23 of the Federal Court Rules 2011 (Cth) on the basis of the applicant’s non-attendance at a hearing set down for that day. Oral reasons for judgment were given.

2    By his originating application, the applicant had alleged that the respondent (his former employer) breached and repudiated the employment contract and contravened the Fair Work Act 2009 (Cth) (FW Act). Prior to the dismissal of the application, the Court made orders striking out parts of the pleaded case, including allegations of contravention of s 340 of the FW Act:  Obel v Central Desert Regional Council [2022] FCA 1355.

3    The respondent applies for an order under s 570 of the FW Act requiring the applicant to pay its costs with respect to its:

(1)    preparation for and attendance at the commencement of a mediation; and

(2)    preparation for and attendance at the case management hearing held on 28 April 2023.

4    Section 570 of the FW Act provides:

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

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

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

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

(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.

5    The respondent filed written submissions in support of the costs application. The submissions contain assertions of fact with respect to events occurring in the course of the proceeding. Those events are known to the parties and to the Court and are otherwise evidenced by material marked as exhibits at the hearing on 28 April 2023. The facts and circumstances relied upon by the respondent and described below are evidenced by the Court record.

6    The applicant was afforded an opportunity to file written submissions and affidavit material but has not done so.

7    In the absence of opposing submissions, the costs application has been determined on the papers.

8    The respondent relies on s 570(2)(c) of the FW Act. There is no evidence that the applicant unreasonably refused to participate in a matter before the Fair Work Commission. The power to award costs is not enlivened under that provision.

9    Reliance is also placed on s 570(2)(b). On that aspect of the application the Court must be satisfied that there has been an “unreasonable act or omission” on the applicant’s part that has caused the respondent to incur costs.

10    As the Full Court observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 (at [18]):

… the word ‘unreasonable’, which is central to the phrase ‘unreasonable act or omission’ is not capable of precise definition and is ‘inherently sensitive to context’ (see Minister for Immigration and Border Protection v SZFVW (2018) 92 ALJR 713; [2018] HCA 30 (SZVFW) at [59] per Gageler J).  …

Costs of the mediation

11    The matter was set down for a case management hearing on 16 February 2023. The applicant sought to have that hearing adjourned. Reasons for refusing to grant an adjournment were given orally and later recorded in Obel v Central Desert Regional Council (No 2) [2023] FCA 152. After he failed to secure an adjournment, the applicant remained in the hearing but refused to make further submissions in opposition to the orders that were sought by the respondent. The Court made an order referring the matter for mediation before a Registrar of the Court. The applicant made no submission opposing that order and at no time sought to have it set aside.

12    On 24 April 2023, the Registrar provided a report on the outcome of the mediation. It is now marked MFI-A. The report states:

Dear Judge

I refer to your orders of 16 February 2023 referring this matter to mediation. The mediation is listed for Friday 28 April 2023, immediately after the CMH before you. As per usual practice, I was to conduct intake calls with both parties today.

Registry emailed parties on 2 March 2023 to list the mediation. On 7 March 2023, Mr Obel noted that he was seeking leave to appeal the orders of 16 February 2023, including the mediation orders. On 15 March 2023, I confirmed that the mediation would be listed on 28 April 2023 as the leave application had not been accepted for filing, the mediation orders were not stayed (and Mr Obel did not seek that they be stayed) and the Respondent wished to proceed.

Registry then proceeded to email parties to arrange intake calls. Mr Obel was sent an email on 23 March 2023, 17 April 2023 and 21 April 2023, asking him to confirm the proposed time and telephone number for the intake call. Mr Obel did not respond to any of the emails. At the proposed time of the intake call, Registry twice rang the telephone number on the court file for Mr Obel. Mr Obel did not answer the call. Registry left a message asking him to return the call which he has not done.

I proceeded with the intake call with the Respondent. As Mr Obel has not engaged with the mediation process, the Respondent does not wish to proceed with the mediation on Friday, but remains of the view that a mediation at a later date would be appropriate.

For the purposes of the CMH on Friday, Mr Obel’s leave application has now been accepted for filing NTD9/2023 - Home (fedcourt.gov.au). It focuses only on the inclusion of the general protections cause of action and does not reference the mediation order. The matter is listed for a 5 day trial commencing on 19 June 2023, however, the leave application has not yet been listed.

Given Mr Obel’s failure to engage, I agree with the Respondent that proceeding with the mediation on Friday is likely to be futile and may be best postponed. If you agree with this approach, I had intended to write to the Respondent to confirm the mediation has been vacated so that it does not unnecessarily waste time and resources. Otherwise, I would be happy to discuss in advance of Friday.

13    For the purposes of the present application I find that the events occurred as set out in that report.

14    I am satisfied that the applicant’s failure to attend at the mediation was an unreasonable omission within the meaning of s 570(2)(b) of the FW Act, notwithstanding his self-represented status. It was explained to the applicant that the orders referring the matter to mediation remained operative, notwithstanding that he had sought leave to appeal from the orders of 16 February 2023. The applicant had the opportunity on 16 February 2023 to oppose the orders referring the matter to mediation or to seek a stay of the proceedings, but he did not do so. Nor did he inform the respondent in advance of the mediation of his intention not to engage in the process at all so as to avoid the respondent incurring preparation costs.

15    The respondent properly engaged in the mediation process. The failure of the applicant to attend in the circumstances I have described has caused the respondent to incur costs. He has made no submission as to why I should not exercise the discretion under s 570(1) of the FW Act in the respondent’s favour.

Failure to attend at the case management hearing

16    As explained above, the applicant failed to attend at the case management hearing on 28 April 2023 notwithstanding that he was aware that the hearing had been set down for that day and notwithstanding that he was aware that the Court’s orders had not been stayed.

17    The applicant has not filed submissions or evidence in opposition to the costs order and there is therefore no basis for a finding that he was ignorant of the requirement to attend at the case management hearing. As I have said, it had earlier been made plain to the applicant that the Court’s orders remained operative. In addition, on 28 April 2023, the Court deferred the commencement of the case management hearing when the applicant did not appear. In the meantime an email was sent to the applicant in the following terms (now marked MFI-C):

Dear Mr Obel,

This matter was called on for a case management hearing at 9.30am (ACST) today.

The date for the hearing was fixed on 16 February 2023 in your presence and after consultation with you concerning your availability.

You made no request for a link to facilitate your attendance by Teams.

You were not in attendance at the commencement of the hearing either in person or via Teams.

There have been four unsuccessful attempts to contact you by telephone.

The Court is in receipt of correspondence from the Registrar responsible for conducting the mediation in this matter. The correspondence is attached. On the basis of that correspondence the Court may conclude that you have failed to respond to email communications from the Registrar, failed to make yourself available by telephone and failed to engage in the mediation.

Rule 5.23 of the Federal Court Rules 2011 (Cth) confers power on the Court to dismiss an originating application in the event of a party’s default, including a party’s failure to attend a hearing in the proceeding (see r 5.22).

The case management hearing has been stood down to 11.00am (ACST) today to make further attempts to contact you.

A Teams link has been provided to facilitate your attendance at the resumption of the hearing.

In the event of your non-attendance at 11.00am (ACST) today, your originating application may be dismissed.

18    At the time of the case management hearing there were a number of important issues to be addressed so that the trial of this matter could proceed on the dates the Court had fixed. I am satisfied that the respondent has incurred costs in preparing for that hearing as well as the costs of Counsel’s attendance. In the circumstances described, and having proper regard to the applicant’s status as a self-represented litigant I am satisfied that his failure to attend at the case management hearing was unreasonable and that he should accordingly pay those costs. It is reasonable to infer (and I find) that the applicant did not attend because he preferred to exercise his appeal rights in the expectation that the Court’s orders of 16 February 2023 would be set aside. That was his choice, made against express guidance that this matter remained on foot and that the Court’s orders remained operative.

Correspondence

19    Following the dismissal of his originating application, the applicant corresponded with my Associate concerning the orders made on 28 April 2023. I have not taken that correspondence into account in determining the question of costs. To the extent that the applicant considered the correspondence to be relevant, it was open to him to make submissions about its relevance and import so that the respondent might have the opportunity of reply. He has elected not to make any submissions.

Discretion

20    In the circumstances described I am satisfied that the discretion to award costs is enlivened. The applicant has put forward no reason as to why the respondent should not be compensated for the costs it has incurred. In the exercise of my discretion I have regard to the policy underpinning s 570(1) of the FW Act, especially the desirability of employees bringing claims against employers without the threat of financial ruin in the event that their actions do not succeed. However, in the present case the costs application is properly confined to those events in which the applicant has acted unreasonably by failing to diligently engage in the proceeding. It is plain that the applicant took issue with the orders made on 16 February 2023 and that he wanted to seek leave to appeal from those orders, as he was entitled to do. However, it is not an answer to the present costs application to say that the orders of 16 February 2023 should not have been made.

21    Orders will be made to the effect sought by the respondent.

Associate:

Dated:    16 August 2023