INDUSTRIAL LAW - Termination of employment - alleged unlawful termination by reason of race.

CONTRACT - Unpaid employment entitlements - contractual terms.

Federal Magistrates Act 1999 (Cth), ss. 21, 22, 23, 67, 68, 79(2) and (3)

Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(b), Schedules 1 and 3

Workplace Relations Act 1996 (Cth), ss.170CS, 650(2), 659(2)(f), 666, 824

Attwood v Wangka Maya Pilbara Aboriginal Language Centre [2010] FMCA 342

Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392; [2007] FCA 879

Benyk v Mater Misericordiae Health Service Brisbane Ltd & Anor (2009) 228 FLR 478; [2009] FMCA 544

Bognar v Merck Sharp & Dohme [2008] FMCA 749

Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143

Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42

Donnelly v Edelsten [1994] FCA 992; (1994) 49 FCR 384

Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120

Harrington v Lowe (1996) 190 CLR 311

Ho v Regulator Australia Pty Ltd & Anor (No. 2) [2004] FMCA 402

Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 2) [2008] FMCA 1336

McBride v State of Victoria (No. 2) [2003] FMCA 313

Pierson's Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250

M. Steele (Ed) Federal Magistrates Court Guide Book (Sydney: Thomson Law Book Co, 2010)

(1) The applicant's application for costs be dismissed.

(2) The respondent's application for costs be dismissed.

(3) There be no order as to the costs of the applicant's or the respondent's application for costs.

1. In this case both parties make applications for costs.
2. The applicant, Ms Attwood, applies for the costs of her application insofar as she was successful in relation to a claim in the associated jurisdiction of the Court with respect to entitlements under a contract of employment.
3. The respondent, Wangka Maya Pilbara Aboriginal Language Centre,[1] applies for its costs insofar as it was successful in opposing the applicant's application with respect to alleged unlawful termination on the grounds of race.

1. The nature of the substantive application was as follows:
   • 1. The applicant, Ms Attwood, seeks compensation in the amount of $24,443 under s.665(1)(c) of the Workplace Relations Act 1996 (Cth)[2] in respect of alleged conduct by the respondent, the Wangka Maya Pilbara Aboriginal Language Centre, said to be conduct in contravention of s.659(2)(f) of the WR Act_, namely termination of employment for a prohibited reason, that reason being Ms Attwood's race. Further, and in the alternative, Ms Attwood seeks damages in the amount of $44,271.98 in respect of alleged unpaid entitlements under an employment agreement between Ms Attwood and Wangka Maya dating from about July 2007, which expired on 30 June 2008. That claim is brought under s.18 of the_ Federal Magistrates Act 1999 (Cth), in the Court's statutory associated jurisdiction.[3]

1. On 21 May 2010 the Court handed down judgment in relation to the substantive application. The Court concluded that:
   • (a) Ms Attwood's termination of employment was not by reason of her race, but rather her performance and conduct, particularly the carrying out of activities which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya and her application alleging unlawful termination on the basis of race will be dismissed; and
   • (b) Ms Attwood's claim for unpaid entitlements under her contract of employment has been made out, and there will be orders for payment of unpaid salary and superannuation plus interest, in the amounts set out above, payable within fourteen days.[4]
2. The Court made orders accordingly, in the following terms:
   • (1) That the application under s.663 of the Workplace Relations Act 1996 (Cth) ("WR Act") for an order under s.665 of the WR Act in relation to an alleged unlawful termination of employment of the applicant under s.659(2)(f) of the WR Act be dismissed.
   • (2) That the application under s.18 of the Federal Magistrates Act 1999 (Cth) in relation to alleged unpaid entitlements under the applicant's contract of employment be upheld, and that by 4 June 2010 the respondent pay the applicant:
     • (a) the sum of $37589.20 for unpaid salary;
     • (b) the sum of $3383.03 for unpaid superannuation;
     • (c) a lump sum in lieu of interest of $3758.92 on unpaid salary;
     • (d) a lump sum in lieu of interest of $338.30 on unpaid superannuation.

Law with respect to costs generally in this Court

1. The Court's jurisdiction and power to award costs in proceedings other than family law or child support proceedings is set out in s.79(2) and (3) of the Federal Magistrates Act 1999 (Cth),[5] as follows:
   • (2) The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
   • (3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.

1. This Court has recently observed that:
   • 43. It is clear from a combined reading of:
     • a) the FMCA Rules;
     • b) information available on the FMCA Website;
     • c) cases decided by the Court; and
     • d) other secondary sources,

and the Court's own experience, that it is well established and well known that the primary source used for fixing costs in general federal law proceedings (other than, arguably, in bankruptcy) in this Court is the event-based scale in Schedule 1 of the FMC Rules. Whilst there is discretion to depart from the event-based scale, that is the exception rather than the norm. The event-based scale under Schedule 1 of the FMC Rules exists to provide simplicity and certainty in determining costs, such that a lawyer attending to take final judgment ought to have been able to calculate the exact costs, in the vast majority of cases.[6]

1. Generally speaking, costs follow the event in general federal law proceedings in this Court,[7] and a successful party is entitled to recover their costs according to the event-based scale set out in Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).[8] Where a party has been successful in part and unsuccessful in part the Court may apportion liability for costs on a percentage basis, and in so doing sets the method by which costs are to be calculated looking at the outcome in substance, rather than attempting to artificially calculate costs on a purely mathematical basis.[9]

Law with respect to costs - workplace relations proceedings - section 666 of the WR Act

1. Section 666 of the WR Act provides as follows:
   • (1) 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.
   • (2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.

"costs" includes all legal and professional costs and disbursements and expenses of witnesses.

1. The object of s.666 of the WR Act is to allow an employee to exercise their right to apply for an order under s.665 of the WR Act unencumbered by the spectre of "a potentially disabling cost penalty".[10]
2. In Construction, Forestry, Mining and Energy Union v Clarke[11] the Full Court of the Federal Court was dealing with the provisions of s.824(2) of the WR Act, which in very similar terms to s.666(1)(b) of the WR Act, provides for an exception to the usual rule that costs must not be ordered, except where "a court ... is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, ..."[12]
3. In Clarke the Full Court of the Federal Court said:
   • [28] We turn now to s 824(2) of the WR Act. This provision carves out another exception to the usual rule in s 824(1) that costs orders are not to be made in respect of proceedings in a matter arising under the WR Act. The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) [2007] FCA 247; (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criteria are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.
   • [29] In our view, the respondent has not engaged in "an unreasonable act or omission". 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] FCA 166; (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. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being "an unreasonable act or omission" for the purposes of s 824(2). True it is that the concession ultimately given by the respondent that it regarded the decision of Nicholson J as erroneous could have been given earlier. However, it was a concession which was, in light of the decision of this Court on the substantive appeal, properly made and beneficial to the appellants. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as "unreasonable" in the circumstances of this case. 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.
   • [30] The appellants in this case suggest that the respondent's best course was, upon responding to the appeal to this Full Court, "to concede that the foundation of ... the decision of Nicholson J was unsupportable ... and also concede that the Industrial Magistrate erred". We do not accept this proposition. Ideal as this outcome may have been for the appellants, the respondent was entitled to meet the appeal. The mere fact that it could have done so in a different or timelier fashion is not sufficient, in itself, to warrant the making of an adverse costs order against it, particularly where the usual practice in litigation arising from the WR Act is to make no orders as to costs.__[13]
4. In determining whether an act or omission is unreasonable for the purposes of s.666(1)(b) of the WR Act it must be first and foremost remembered that the primary position is that matters of this type brought before this Court under the WR Act are ordinarily not the subject of a costs order.
5. The award of costs is limited not only in respect of a claim brought in reliance upon the WR Act but also in respect of other claims joined in the same proceeding, including claims in the associated jurisdiction of the Court.[14] In Bognar v Merck Sharp & Dohme,[15] this Court accepted, citing Nikolich, that the cost exclusionary provision in s.666 of the WR Act should also apply to claims in the Court's associated jurisdiction.[16] Thus, the costs exclusionary provisions of s.666(1) apply in this matter to that part of the application in which Ms Attwood was successful, that is, her contractual entitlements claim in the Court's associated jurisdiction.
6. To achieve an award of costs under s.666(1)(b) of the WR Act two pre-requisites must be fulfilled. They are:
   1. that a party must have engaged in an unreasonable act or omission; and
   2. that the unreasonable act or omission must have caused another party to incur costs in connection with the proceeding.[17]
7. Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case.[18]
8. An unreasonable act or omission does not occur simply because:

1. a party does not conduct litigation efficiently;[19] 2. a concession is made late;[20]

1. a party may have acted in a different or timelier fashion;[21]

1. a party has adopted a genuine but misguided approach.[22] In Pilots Association the Federal Court observed as follows: * [36] In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania [1989] FCA 166; (1989) 28 IR 129, Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138-9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category. I take a different view of the applicant's conduct in relation to the second strike-out application. The second further amended statement of claim contained the same major deficiencies as its predecessor insofar as it dealt with the Part XA claim. The applicant instituted but then withdrew an application for leave to appeal from my decision. It persisted with pleadings which were inconsistent with my reasons for striking-out the first amended statement of claim. In so persisting, I consider that the applicant acted unreasonably for the purposes of s 824(2). The second further amended statement of claim also sought to plead a cause of action under Part 16. That aspect of the pleading failed by reason of embarrassment, not because it was untenable. I do not consider that it was unreasonable for the applicant to pursue the Part 16 aspect of its claim. In my view it is appropriate to order that the applicant pay half the respondent's costs of the second strike-out application.[23]

Against that background the Federal Court went on to find that a "bona fide but misguided approach" did not constitute conduct warranting a departure from the ordinary no costs rule.[24]

1. Finally, it must be remembered that even when the necessary pre-requisites have been met, that an order of costs under s.666(1)(b) is still a matter which requires the Court to exercise a discretion, but not hastily.[25]

1. Ms Attwood submits that there are the following objective circumstances in this case:

1. Ms Attwood offered to settle her claims for $15,000 on 6 August 2008;[26] 2. Wangka Maya did not accept the settlement offer of $15,000;

1. Ms Attwood made an offer of compromise under r.1.05(3)(b) and Schedule 3 of the FMC Rules and O 23 of the Federal Court Rules[27] to settle her claim, inclusive of interest and costs, on 17 October 2008 for $32,000;[28]

1. Wangka Maya did not accept the offer of $32,000; 2. Ms Attwood received judgment in her favour for $45,069.45, inclusive of interest and costs, on 21 May 2010.
2. Ms Attwood also says that the refusal of an offer of settlement is a highly relevant objective circumstance in circumstances where the Court has an ongoing obligation to endeavour to resolve disputes otherwise than by way of the exercise of judicial power under ss.21-23 of the FM Act. The FM Act:

1. in s.21 defines "dispute resolution processes" to mean procedures and services for the resolution of disputes other than by the exercise of the judicial power of the Commonwealth, and specifies various sorts of dispute resolution processes for that purpose as being included therein;[29] 2. in s.22 makes it mandatory for the Court to consider whether or not to advise the parties to proceedings before it about the dispute resolution processes that could be used to resolve any matter in dispute;[30] and

1. provides in s.23 that if the Court considers that a dispute resolution process may help the parties to resolve a dispute, the Court must advise the parties to use that dispute resolution process, and if considers it desirable to do so, to adjourn the proceedings to enable the dispute resolution process to occur.[31]
2. It has been said that the approach underlying s.22 of the FM Act is that:
   • ... the process is voluntary and parties cannot be compelled to settle. However, it is appropriate for some procedures to be available, in the public interest and often in the real interests of the unwilling parties, to give an opportunity to explore the prospects for peacemaking.[32]
3. Ms Attwood's case is essentially that reasonable offers were rejected by the respondent and therefore she ought to be awarded costs. Ms Attwood submits that:

1. the rejection of a reasonable offer is not to be automatically regarded as unreasonable,[33] the rejection of a favourable offer at a time when the party had ample time to assess a claim can be unreasonable in circumstances where it would be unfair to require another party to bear costs for which it was not reimbursed;[34] 2. in Donnelly the Full Court of the Federal Court said that: * ... The foundation for the order is the need for the costs order to do equity where a party who has succeeded in the proceeding has made a reasonable attempt to terminate the proceeding by an offer to compromise shown to have been a fair offer in all the circumstances and to have provided appropriate opportunity for the offeree to consider and deal with the offer.[35]

1. failure to accept an extremely favourable offer may be conduct which is quite unreasonable.[36]
2. Ms Attwood says that Wangka Maya's refusal to accept the offers made by Ms Attwood must also be considered in light of:
   1. Ms Attwood having travelled to Perth from Port Hedland for a mediation which she attended with her solicitors and which only the legal advisers of Wangka Maya attended;[37] and
   2. a concern raised by the Court at the commencement of the first day of hearing that:
      1. with the number of legal practitioners in court for Wangka Maya; and
      2. the amount of Ms Attwood's claim,

that serious consideration ought to be given to settlement options.[38]

1. Ms Attwood says that the August 2008 Offer rejected by the respondent was for less than one third of the judgment amount. It was made at a time before the affidavits of the parties were prepared and filed and the parties prepared for and attended a two day trial. Ms Attwood asserts that the costs of the two day trial must have exceeded the amount of the offer. That is a matter about which there is no evidence. Ms Attwood says that the offer was extremely favourable to Wangka Maya and that the failure to accept it was quite unreasonable.
2. In relation to the offer of compromise made under the provisions of

O 23 of the FC Rules, O 23 r.11(4) of the FC Rules provides as follows: * Costs * ... * (4) If: * (a) an offer is made by an applicant and not accepted by the respondent; and * (b) the applicant obtains judgment on the claim to which the offer relates not less favourable than the terms of the offer; * then, unless the Court otherwise orders, the applicant is entitled to an order against the respondent for costs incurred in respect of the claim: * (c) up to and including the day the offer was made -- taxed on a party and party basis; and * (d) after that day -- taxed on an indemnity basis. 3. On the basis of O 23 r.11(4) of the FC Rules Ms Attwood says that Wangka Maya ought pay Ms Attwood's costs on a party and party basis to 17 October 2008 and on an indemnity basis from 18 October 2008. 4. In response, Wangka Maya says that this is a case in which it is inappropriate to do other than apply the normal no costs rule with respect to the costs sought by Ms Attwood. Further, Wangka Maya says that it was reasonable for it to defend the application on the basis that its reputation as an independent aboriginal language centre in the Pilbara was at stake by reason of Ms Attwood's native title activities in the course of her employment, and her claim of unlawful termination on the basis of race contrary to s.659(2)(f) of the WR Act which she claimed was because of her involvement in those native title activities. Effectively, Wangka Maya argued that it was reasonable for it to defend the claim in order to obtain a judgment which it could use to maintain its reputation.

1. Wangka Maya argues that Ms Attwood acted unreasonably in connection with the conduct of the proceedings by failing to discontinue proceedings despite having received a conciliation certificate under s.650(2) of the WR Act[39] which stated that Ms Attwood's case was tenuous with no reasonable prospect of success, and which recommended that Ms Attwood not pursue the application further.
2. Wangka Maya says that Ms Attwood acted unreasonably in failing to discontinue the proceeding because upon the facts apparent at the relevant time, there was no substantial prospect of success, and that the relevant time in this case was once the Australian Industrial Relations Commission recommended that Ms Attwood not pursue the application further.
3. Wangka Maya therefore says that Ms Attwood did act unreasonably in failing to discontinue the application, and that Wangka Maya ought get its costs in relation to that part of the proceedings relating to the allegation of unlawful termination on the basis of race contrary to s.659(2)(f) of the WR Act.
4. In response, Ms Attwood argued that costs ought not be awarded to Wangka Maya in relation to the unlawful termination claim because it was an arguable case, essentially adopting an observation made by the Court in the course of argument that the Court's initial impression was that the unlawful termination case was arguable, and that it was only after a detailed examination of the facts that it was dismissed.

1. At the time at which Wangka Maya refused the August 2008 Offer it had the benefit of the Conciliation Certificate in which the Australian Industrial Relations Commission recommended that Ms Attwood not proceed with her application. Furthermore, at that time affidavits dealing with the merits in these proceedings had not been filed (the application was commenced by way of a statement of claim filed with the application), and it would not therefore have been possible for Wangka Maya to make any proper or formal assessment of the strength of Ms Attwood's case. Wangka Maya was entitled to take the Conciliation Certificate at face value in determining whether to accept the August 2008 Offer. The August 2008 Offer was a very reasonable settlement offer, particularly with respect to a case listed for a two day hearing to deal with claims of unlawful termination and for contractual entitlements. However, a significant issue for Wangka Maya in the proceedings was the importance of Wangka Maya not being seen to be involved in native title issues, which were perceived as being detrimental to Wangka Maya's role as a language centre for all Pilbara aboriginal languages. Ms Attwood alleged that her termination of employment was a consequence of her being a native title claimant, and was by reason of her race, and therefore unlawful under s.659(2)(f) of the WR Act.[40] In Wangka Maya (No.1) the Court concluded as follows with respect to Ms Attwood's unlawful termination claim:
   • [73] In all of the circumstances described above, the Court has come to the conclusion that the termination of Ms Attwood's employment was not on the basis of race, but rather her performance and conduct, including the carrying out of activities which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya. It follows that the application alleging unlawful termination of employment on the basis of race must be dismissed.[41]
2. Importantly, the above finding established that "activities", which were native title activities, were not part of the role of Wangka Maya or part of the duties of Wangka Maya's employees. This point of principle underpinned Wangka Maya's defence of these proceedings: Wangka Maya said it was important for the maintenance within Pilbara Aboriginal communities of its reputation as a language centre not involved in native title activities. In the Court's view, Wangka Maya were entitled to weigh the prospect of obtaining a finding of the type set out above, and the worth of such a finding to Wangka Maya's reputation within the Pilbara Aboriginal community, in determining to reject the August 2008 Offer and the later Offer of Compromise.
3. The Offer of Compromise was made after the hearing had concluded. Because of the time at which it was made it could not effect any savings in costs in relation to the hearing itself, save for the minimal $240 cost of taking judgment.[42] The Offer of Compromise was made at a time when Wangka Maya were in a position to assess the strength of the case as a whole, and when the costs of the litigation had already been incurred. Even though, in retrospect, the Offer of Compromise might appear a reasonable settlement, it may not have looked as attractive to Wangka Maya at the time it was made, having regard to their assessment of the case as a whole, the costs already incurred and the issue of Wangka Maya's reputation.
4. Ms Attwood suggested that Wangka Maya's reputation might have remained intact if it had accepted a settlement and an order had issued dismissing the proceedings, it being submitted that that would be seen as a refutation of the claims made by Ms Attwood. Whilst an order of dismissal might legally mean that no part of the claim can be said to have been made out, it does not remove the reputational slur - whether actual or merely perceived - in as emphatic a manner as do Reasons for Judgment. Reasons for Judgment allow Wangka Maya to point to the actual reasons of a judicial officer making it clear that there was no race based unlawful termination.
5. Order 23 of the FC Rules cannot, in its own terms, operate so as to prevail over the requirements of s.666(1)(b) of the WR Act.[43] The fact that the circumstances for the ordinary operation of O 23 of the FC Rules might have been met is not alone sufficient to warrant a finding of unreasonableness and to found a costs order under s.666(1)(b) of the WR Act. There must first be a finding of unreasonableness by a court. Order 23 of the FC Rules might be a consideration in making that determination, but until that determination is made it cannot operate independently. Even when the determination of unreasonableness is made O 23 of the FC Rules may still have no work to perform given the wide - and possibly all-embracing - definition of "costs" in s.666(3) of the WR Act. That is, however, not a matter which needs to be further dealt with in these proceedings.
6. The disposition of the substantive matters in these proceedings required the detailed consideration of a number of matters - both factual and legal - and it cannot be said that it was manifest before the hearing as to what the outcome was likely to be. Indeed, the Court's first impression, contrary to what was contained in the Conciliation Certificate, was that Ms Attwood's argument concerning unlawful termination on the basis of race had some basis, and it was only by a lengthy process of fact finding that the Court arrived at a view that there was no unlawful termination. The argument with respect to Ms Attwood's contractual entitlements required quite detailed consideration of the provisions of Ms Attwood's contract of employment and the relevant industrial award, and of a number of authorities,[44] before the Court was able to arrive at a view that there was a fixed term contract, and therefore a contractual entitlement on the part of Ms Attwood. And, as the detailed consideration of the authorities in Wangka Maya (No. 1) showed, issues associated with the correct interpretation and characterisation of contracts said to be fixed term contracts under the provisions of the WR Act, and prior legislation, have much troubled Australian courts and industrial tribunals over at least the last fifteen years. It is usually the case, as it was here, that the answer lies in detailed analysis of the relevant contractual provisions and any relevant industrial instrument. Refusal to settle in those circumstances can hardly be said to be an unreasonable act or omission.
7. In relation to the Court's observations in the early part of the hearing on 23 September 2008, the Court observed that Wangka Maya had "quite a few hundred dollars-an-hour presently sitting at the bar table and the solicitors' table"[45] and suggested, notwithstanding that there had already been mediation, that the parties utilise an adjournment to see if there was "scope for settlement in relation to the matter".[46] There were discussions between the parties but the matter proceeded.[47] There is nothing in that sequence of events which constitutes an unreasonable act or omission by Wangka Maya. Wangka Maya was entitled to as much or as little representation as it desired. It took part in the discussions suggested by the Court. There is no evidence of anything in relation to Wangka Maya's representation or the conduct of the Court suggested discussions which would constitute an unreasonable act or omission.
8. Ms Attwood argued that Wangka Maya's failure to send a representative to attend the mediation before a Registrar of this Court in person constituted an unreasonable act or omission in circumstances where Ms Attwood attended the mediation in person. The conduct of the mediation is a matter for the Registrar concerned. In this case it seems both parties had lawyers in attendance, and the Court was told that Wangka Maya's representative participated by telephone, a course not unusual in mediations, and even in hearings,[48] before this Court in the Perth Registry where there are parties or witnesses located in rural Western Australia or interstate. It is difficult to understand why this particular submission was made by Ms Attwood. This course of conduct undertaken by Wangka Maya cannot be said to amount to an unreasonable act or omission.
9. Balancing the merits of the unlawful termination and contractual entitlements claims, the reputation issue and the nature and quantum of the settlements offered in the August 2008 Offer and by the Offer of Compromise, the Court does not consider that there was any act or omission of Wangka Maya which was unreasonable. Likewise, looking at the merits of the unlawful termination claim, the Court does not consider that there was any act or omission of Ms Attwood which was unreasonable.
10. In this matter there were arguments open to be put by each party in the substantive proceedings, which arguments were put in good faith, and in respect of which the Court made the determination and issued the orders set out above.[49] There was no unreasonable act or omission by either party, and s.666(1)(b) of the WR Act does not operate so as to impose a costs penalty merely because a party has been unsuccessful in whole or part of their argument.
11. In what is primarily a no costs jurisdiction the Court is not prepared to find that there was an act or omission by Ms Attwood or Wangka Maya which was unreasonable, or so obviously unreasonable, as to warrant any award of costs under s.666(1)(b) of the WR Act.

1. The Court has concluded that there was no unreasonable act or omission for the purposes of s.666(1)(b) of the WR Act by either party in this case. Because no unreasonable act or omission has been made out, it is unnecessary for the Court to go on to consider whether an act or omission actually caused another party to incur costs in connection with the proceeding.
2. There will be no order as to costs in respect of each party's costs application.

I certify that the preceding 45Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-fiveforty-five (45) paragraphs are a true copy of the reasons for judgment of Lucev FM

[3] Attwood v Wangka Maya Pilbara Aboriginal Language Centre [2010] FMCA 342 at para.1 per Lucev FM ("Wangka Maya (No 1)") (some footnotes omitted).

[4] Wangka Maya (No 1) at para.111 per Lucev FM (footnote omitted).

[6] Pierson's Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at para.43 per Lucev FM (footnotes omitted).

[7] Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 2) [2008] FMCA 1336 at para.6 per Lucev FM.

[8] "FMC Rules". See para.8 above; also Benyk v Mater Misericordiae Health Service Brisbane Ltd & Anor [2009] FMCA 544; (2009) 228 FLR 478 at 482 and 483 per Wilson FM; [2009] FMCA 544 at paras.29 and 33 per Wilson FM.

[9] FMC Rules, r.21.02(2)(b); Ho v Regulator Australia Pty Ltd & Anor (No. 2) [2004] FMCA 402 at para.17 per Driver FM; McBride v State of Victoria (No. 2) [2003] FMCA 313 at paras.8-10 per McInnis FM.

[10] Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 at 65 per Black CJ; [2007] FCAFC 120 at para.92 per Black CJ ("Nikolich"). In Nikolich the Full Court of the Federal Court was considering s.170CS of the WR Act which was the immediate legislative predecessor of s.666 of the WR Act. The terms of both sections are identical.

[11] (2008) 170 FCR 574; [2008] FCAFC 143 ("Clarke").

[13] Clarke FCR at 582-583 per Tamberlin, Gyles and Gilmour JJ; FCAFC at paras.28-30 per Tamberlin Gyles and Gilmour JJ.

[14] Nikolich FCR at 64 per Black CJ and 70 per Jessup J; FCAFC at para.86 per Black CJ and para.380 per Jessup J.

[15] [2008] FMCA 749 ("Bognar").

[16] Bognar at para.42 per FM O'Sullivan. See also paras.12-18 of Bognar for a discussion of the Federal Court authorities in this regard.

[17] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.28 per Tamberlin, Gyles and Gilmour JJ.

[18] Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 at 402 per Tracey J; [2007] FCA 879 at para.32 per Tracey J ("Pilots Association"); Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.28 per Tamberlin, Gyles and Gilmour JJ.

[19] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[20] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[21] Clarke FCR at 582-583 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.30 per Tamberlin, Gyles and Gilmour JJ.

[22] Pilots Association FCR at 403 per Tracey J; FCA at para.39 per Tracey J.

[23] Pilots Association FCR at 402-403 per Tracey J; FCA at para.36 per Tracey J.

[24] Pilots Association FCR at 403 per Tracey J; FCA at para.39 per Tracey J.

[25] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[32] M. Steele (Ed) Federal Magistrates Court Guide Book (Sydney: Thomson Law Book Co, 2010) page 25603, para.FMA 22.20.

[33] Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 at para.11 per Jessup J.

[34] Donnelly v Edelsten [1994] FCA 992; (1994) 49 FCR 384 at 396 per Neaves, Ryan and Lee JJ ("Donnelly").

[35] Donnelly at 396 per Neaves, Ryan and Lee JJ.

[36] Donnelly at 396 per Neaves, Ryan and Lee JJ.

[37] See Ms Attwood's solicitor's letter dated 6 August 2008 attached to the Applicant's Outline of Submissions in relation to costs.

[38] Transcript, 23 September 2008, page 8.

[40] Wangka Maya (No.1) at para.17 per Lucev FM.

[41] Wangka Maya (No.1) at para.73 per Lucev FM.

[43] See, for example, Harrington v Lowe (1996) 190 CLR 311 at 324-325 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

[44] Wangka Maya (No 1) at paras.74-103 per Lucev FM.

[45] Transcript, 23 September 2008, page 8.

[46] Transcript, 23 September 2008, page 8.

[47] Transcript, 23 September 2008, page 9.