Case: Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534
Outcome: referred to
The applicant was correct to accept that s 347(1) applied to subsidiary applications made in the course of a proceeding. Although there are conflicting authorities, (as to which see the cases collected in Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534 at 536-539), the conflict was resolved by the decision of the Full Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. In that case the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed the decision of Wilcox CJ (with whom von Doussa J agreed) in the Industrial Relations Court in Shackley v Australian Croatian Club Limited (1996) 141 ALR 736. In Shackley Wilcox CJ said (at 745) that: "As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding"". 28 Section 824(2) is cast more widely. It applies if a party "has, by an unreasonable act or omission, caused another party to the proceeding to incur costs ...". A party may potentially be liable to pay costs under this sub-section even if it did not institute the proceeding in which the relevant conduct occurred. That conduct may be an act or an omission. The liability may arise, as Young J noted in Paras (at 538 [16]), "irrespective of the outcome of the particular application in question and of the proceeding as a whole." 29 The respondent submits that the applicant acted unreasonably by pressing its amended statement of claim and its further amended statement of claim despite being aware of the respondent's detailed critique which pointed to manifold deficiencies. The first amended statement of claim was struck-out substantially for the reasons advanced by the respondent. The respondent contends that "[p]ressing a major cause of action which has no reasonable prospect of success is unreasonable conduct." 30 The respondent submits that the applicant's conduct in relation to the second further amended statement of claim was also unreasonable. The respondent noted the reservations which I expressed when granting leave, on 6 November 2006, to the applicant to replead its case insofar as it relied on Part XA of the Act . The second further amended statement of claim contained substantially similar allegations as appeared in its predecessor in seeking to plead a case under Part XA. This, it is said "was not a reasonable action". The respondent also contends that the applicant acted unreasonably by failing to have regard to the Court's reasons when it undertook the repleading the exercise. The respondent again places reliance on the alleged failure of the applicant to heed the respondent's written submissions in which the deficiencies in the pleadings were identified.