…industrial law
The court’s general jurisdiction to award costs under s43 of the Federal Court of Australia Act 1976 (Cth) is subject to, among other things, s570 of the Fair Work Act 2009 (Cth) (FW Act).
In Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20 (25 January 2023), the court considered applications for costs pursuant to s570 of the FW Act. This followed the dismissal of the applicants’ case alleging contraventions of ss50, 323, 340 and 355 of the FW Act, concerning the termination of their employment by the first respondent as members of the second respondent’s staff.
The judgment sets out the general principles for costs under s570 of the FW Act (at [8]-[17]). The general prohibition under s570 against the awarding of costs in a matter arising under the FW Act is subject to exceptions, in that the court’s traditional discretion as to costs survives:
(i) insofar as a matter might be said to have been instituted vexatiously or without reasonable cause, or
(ii) in respect of costs that are incurred in consequence of another party’s unreasonable conduct (at [11]).
The court was not satisfied that the applicants instituted the proceedings vexatiously (at [49]-[53]) or without reasonable cause (at [54]-[64]). However, the court held the applicants committed unreasonable acts occasioning costs. This included filing large amounts of irrelevant material (at [40] and [65]-[66]).
Snaden J held that being litigants in person did not prevent a costs order: “Self-represented litigants are not at liberty to waste their opponents’ (and the court’s) time by requiring that they sift through and consider – and, as here, oppose – acres of irrelevant and scandalous material” (at [67]).
In addition, the applicants filed an excessive number of notices to admit which was unreasonable conduct (at [69]-[71]). The court concluded they were attempts to put before the court evidence that, although damning (or potentially damning) of the second respondent, was wholly unrelated to any pleaded cause of action (at [71]).
The applicants were also found to have acted unreasonably by extending the duration of the trial, and they were not to be spared the consequences that flow from that conclusion merely because they were self-represented (at [72]-[77]). Yet the applicants’ rejection of an offer of compromise was not unreasonable so as to be an additional basis for an adverse costs order, under s570 of the FW Act (at [78]-[80]).
The court made orders requiring that the applicants pay to the first respondent costs fixed in the lump sum of $47,300, representing half of approximately 55% of what the first respondent incurred in consequence of the applicants’ unreasonable conduct (at [90]).
Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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