FEDERAL COURT OF AUSTRALIA Cutler v Donric Pty Ltd [2011] FCA 396 Citation: Cutler v Donric Pty Ltd [2011] FCA 396 Parties: PHILLIP WILLIAM CUTLER v DONRIC PTY LTD (ACN 005 627 092) File number: VID 605 of 2009 Judge: MARSHALL J Date of judgment: 21 April 2011 Legislation: Workplace Relations Act 1996 (Cth) s 650(2), s 650(2)(b), s 650(2)(d), s 659, s 659(2), s 659(2)(e), s 663, s 666, s 666(1)(a), s 666(1)(b) Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Cutler v Donric [2010] FCA 1387 Date of hearing: 18 April 2011 Place: Melbourne Division: GENERAL DIVISION Number of paragraphs: 19 The Applicant appeared for himself. Counsel for the Respondent: Ms S Bingham Solicitor for the Respondent: Macpherson & Kelley IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 605 of 2009 BETWEEN: PHILLIP WILLIAM CUTLER Applicant AND: DONRIC PTY LTD (ACN 005 627 092) Respondent JUDGE: MARSHALL J DATE OF ORDER: 21 APRIL 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application of the respondent for costs pursuant to s 666(1) of the Workplace Relations Act 1996 (Cth) is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 605 of 2009 BETWEEN: PHILLIP WILLIAM CUTLER Applicant AND: DONRIC PTY LTD (ACN 005 627 092) Respondent JUDGE: MARSHALL J DATE: 21 APRIL 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This judgment deals with an application made by Donric Pty Ltd ("Donric") for costs pursuant to s 666 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). 2 Section 666(1) of the WR Act at all material times provided that: Subject to this section, a party to a proceeding under section 663 must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party: (a) instituted the proceeding vexatiously or without reasonable cause; or (b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first mentioned party in connection with the conduct of the proceeding. 3 Section 663 of the WR Act is the provision under which a dismissed employee was able to apply to this Court for a remedy in respect of an alleged breach of s 659 of the WR Act. Section 659(2) of the WR Act prohibited termination of employment on certain grounds including a termination for reasons which include the reason set out in s 659(2)(e). 4 Section 659(2)(e) referred to: the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities. 5 By application filed on 14 August 2009, Mr Cutler sought the imposition of a penalty on Donric pursuant to s 663 of the WR Act, reinstatement in his employment with Donric and reimbursement of lost remuneration. Donric summarily dismissed Mr Cutler on 1 May 2009. Mr Cutler alleged that its reasons for so doing included the prohibited reason contained in s 659(2)(e). 6 The matter first came before the Australian Industrial Relations Commission ("the Commission"). On 3 July 2009 Foggo C, after conducting a conciliation conference, issued a certificate under s 650(2) of the WR Act. Under s 650(2)(b), Foggo C indicated to the parties her assessment of the merits of Mr Cutler's application. Commissioner Foggo said: On the basis of the submissions of the parties in conciliation I believe this application has limited merit. (Emphasis added.) 7 Section 650(2)(d) obliged the Commission to advise the parties should it consider that the application had no reasonable prospect of success. Commissioner Foggo did not so advise the parties. 8 Having elected to bring a proceeding under s 663 of the WR Act in this Court, Mr Cutler participated in that proceeding up to Monday 18 April 2011 being the first day of a scheduled four day trial. Shortly after the commencement of the hearing Mr Cutler consented with counsel for Donric, Ms Bingham, to his application being dismissed. Mr Cutler said that he did not want to pursue his application because he was unwell. Ms Bingham then informed the Court that Donric wished to apply for its costs pursuant to s 666 of the WR Act. 9 The sole ground relied on by Ms Bingham under s 666(1)(a) is that the proceeding was instituted without reasonable cause because Foggo C indicated that the application had "limited merit". Just because a proceeding has limited merit does not mean that it has been instituted without reasonable cause. It would be a different matter if the Commission had indicated that the application had no prospects of success. The Court rejects Donric's application insofar as it is based on s 666(1)(a) of the WR Act. 10 In the context of s 666(1)(b) of the WR Act, Ms Bingham relied on one alleged unreasonable omission and one alleged unreasonable act. The unreasonable omission was said to be Mr Cutler's failure to file an outline of submissions. The unreasonable act was said to be Mr Cutler's sending of an email to Donric's solicitors at 4.10 pm on Friday 15 April 2011. 11 Ms Bingham submitted that the failure of Mr Cutler to file an outline of submissions means that Donric was required to prepare submissions in a vacuum. I do not accept that the failure of Mr Cutler to file an outline of submissions was an unreasonable omission in all the circumstances. First, the failure of Mr Cutler to file his outline did not prevent Donric from filing a reasonably comprehensive outline of submissions on 13 April 2011. Second, in communications with the staff of the docket judge, Donric's solicitors had advised of their client's preparedness to present its evidence before Mr Cutler presented his evidence. The lack of an outline of argument by Mr Cutler did not inhibit Donric in organising its evidence in a way it thought necessary to meet a case it was likely to confront at the hearing. Further, Mr Cutler had previously filed a notice of motion on 17 November 2010 for his matter to be transferred to the Federal Magistrates Court. That motion set out the basis of Mr Cutler's claims in the proceeding. They are recorded at [1] in the reasons for judgment of Kenny J in Cutler v Donric [2010] FCA 1387. At [2], her Honour set out material passages from an affidavit of Mr Cutler which raised factual issues which would be relevant on a final hearing. Donric also had the benefit of a proposed amended statement of claim by the time Kenny J dealt with the motion on 10 December 2010. Under her Honour's orders made on 10 December 2010, Mr Cutler was to file his outline of submissions by 1 April 2011. He failed to do so. The docket judge's executive assistant pressed him on his delay. He undertook to file the submissions by 15 April 2011. He did not do so as on that day he informed the docket judge's associate that, due to ill health, he wished to withdraw from the proceeding. 12 Having regard to all the factors referred to in the above paragraph, the Court considers that the omission of Mr Cutler to file his outline of submissions was not an unreasonable omission within the meaning of s 666(1)(b) of the WR Act. 13 The Court now turns to the alleged unreasonable act, being the sending of the email at 4.10 pm on Friday 15 April 2011 by Mr Cutler to Ms Sakkas of Macpherson and Kelley (the solicitors instructing Ms Bingham). Omitting the formal parts of the email, it said: It is with regret that I inform the court that I will not be appearing in this matter, I will not have alternate representation and no witnesses will attend. I have been struggling to maintain good health and have decided that my well being is paramount. 14 The 4.10 pm email was immediately preceded by an email sent to the docket judge's associate at 4.08 pm by Mr Cutler. Omitting formal parts that email said: It is with regret that I inform the Court that I will not be appearing in this matter, I will not have alternate representation and no witnesses will attend. I have been struggling to maintain good health and have decided that my well being is paramount. I will notify Tonia Sakkas of my decision. 15 Ms Bingham submitted that prior to 4.10 pm on 15 April 2011, Mr Cutler had given every indication that his application would proceed. Ms Bingham said that Donric was entitled to its costs of preparing for trial and also its costs of preparing to argue that the proceeding be dismissed in light of the foreshadowed non attendance of Mr Cutler. 16 In all the surrounding circumstances, the sending of the email at 4.10 pm was not an unreasonable act. It is true that Mr Cutler led Donric and the Court to believe he would file his outline of submissions by 15 April 2011 and that he was pressing his application. By 4.08 pm on 15 April 2011, Mr Cutler formed the view that his health would not permit him to have any further role in the proceeding. So much is broadly consistent with his appearance on 18 April 2011, essentially only as a courtesy to the Court to work out the best and most cost efficient way to extricate himself from the proceeding. Ultimately, he consented to an order for dismissal but was not well enough to stay in Court to hear Ms Bingham's costs application. 17 By Mr Cutler consenting to the dismissal of his application at the commencement of the hearing he saved Donric at least 3 days hearing time plus the inconvenience of organising the attendance of witnesses. Given the long proposed witness list prepared by Mr Cutler it was unlikely that the evidence of both parties, let alone the final hearing, would have concluded within the 4 days set aside. Taking into account these matters and those addressed in the preceding paragraph, the Court considers that the sending of the email at 4.10 pm on 15 April 2011 was not an unreasonable act within the meaning of s 666(1)(b) of the WR Act. It should also be noted that had the matter proceeded to a hearing and determination, and had the application not succeeded, Donric would not have been able to seek costs in respect of its preparation for the hearing having regard to the strict limitations provided by s 666(1)(a) of the WR Act on the Court's otherwise general powers under s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs. 18 The above reasoning does not deal with the submission that Donric was required after the 4.10 pm email to prepare a submission to seek the dismissal of the proceeding in Mr Cutler's likely absence. Such preparation would have been transitory. It is not a difficult task to request a Court to dismiss a proceeding for non-attendance when the moving party has said that he or she will not attend. Any minor cost inconvenience pales into insignificance in considering the cost saving to Donric of the matter not proceeding. ORDER 19 The application of the respondent for costs pursuant to s 666(1) of the Workplace Relations Act 1996 (Cth) is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 21 April 2011