Conradsen v Carpentaria Land Council Aboriginal Corporation

Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138; (2014) 226 FCR 240

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306

Conradsen v Carpentaria Land Council Aboriginal Corporation (No 2) [2025] FCA 292

Construction, Forestry, Mining and Energy Union & Ors v Clarke [2008] FCAFC 143

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCAFC 97; (2015) 230 FCR 337

Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745; (2006) 152 FCR 534

Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155

Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia (No 4) [2024] FCA 453

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION ABN 99 121 997 933; INDIGENOUS CORPORATION NO. 268

1. There will be no order for costs in relation to the appellant's application for leave to appeal and appeal.

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

1. The appellant brought proceedings seeking relief in respect of the respondent's alleged contravention of s 340 of the Fair Work Act 2009 (Cth) (the FWA) in the Federal Circuit and Family Court of Australia (the FCFCOA). His proceeding was dismissed, and he subsequently applied to this Court for an extension of time to file a notice of appeal.
2. On 3 April 2025, I allowed the appellant's application for an extension of time, but dismissed his application to admit further evidence, and ultimately dismissed the appeal itself: Conradsen v Carpentaria Land Council Aboriginal Corporation (No 2) [2025] FCA 292.
3. Following delivery of judgment, the respondent made an oral application for costs against the appellant, relying on s 570(2)(b) of the FWA. I subsequently made orders for the filing of affidavit evidence and written submissions by the parties on the question of costs.
4. I will proceed to consider the question of costs. It is necessary to read these reasons together with my previous reasons dismissing the appeal.

1. The respondent is an incorporated Land Council, which was a service provider for a number of Prescribed Bodies Corporate.
2. The appellant was employed by the respondent on 21 November 2019 as a project officer on a probationary basis. The appellant's employment was terminated on 1 May 2020, at the end of the probation period.
3. The appellant alleged that the respondent had contravened s 340 of the FWA by terminating his employment because he had exercised his workplace right to make complaints in relation to his employment.
4. The primary judge decided, relevantly, that the appellant had failed to adequately plead adverse action in respect of a number of the alleged complaints, and had only established that he had made a "complaint" for the purposes of s 341(1)(c) of the FWA in respect of two of his alleged complaints. The primary judge did not "accept that the applicant was a credible witness" and described the appellant's evidence concerning various alleged complaints as "implausible", "evasive", and "bizarre, illogical and nonsensical". On the other hand, the primary judge found that one of the relevant decision-makers, Mr Murphy, was a "logical and sensible" and "credible" witness, and another, Ms Amini-Yanner, was a "logical, thoughtful and intelligent witness of credit". The primary judge dismissed the appellant's claim, holding that the decision to terminate the appellant's employment was not made for any prohibited reason.
5. In respect of the appellant's application to admit further evidence before this Court, I found that the evidence he relied on was not directly relevant to the issues in dispute, and I was not satisfied that he had demonstrated he was unaware of the evidence, nor that he could not, with reasonable diligence, have become aware of this evidence before the trial.
6. I was satisfied that the appellant's explanation for his delay, the comparatively short length of that delay and the absence of any specific prejudice weighed in favour of granting an extension of time to file the notice of appeal. I was satisfied that, although the grounds of the proposed appeal were not strong, it was appropriate to grant the extension of time.
7. The appellant raised seven grounds of appeal before me. I rejected each of his grounds. I do not propose to repeat my reasons.

1. Section 43 of the Federal Court of Australia Act 1976 (Cth) provides the Court with a discretion as to costs. However, in relation to a matter arising under the FWA, that discretion is limited by s 570 of the FWA, which provides:

Costs only if proceedings instituted vexatiously etc.

(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.

(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.

1. Section 570 of the FWA applies when the Court is exercising its appellate jurisdiction, provided that the appeal involves a matter arising under the FWA: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138; (2014) 226 FCR 240 at [6].
2. In determining whether the proceedings were instituted vexatiously or without reasonable cause for the purposes of s 570(2)(a) of the FWA, the following principles are relevant:

(a) The question is whether the proceeding was without reasonable cause at the time it was instituted, not with the benefit of hindsight or by reference to the final outcome: see Australian Workers' Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 (Leighton Contractors) at [7]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCAFC 97; (2015) 230 FCR 337 (BHP Coal (No 2)) at [13]-[14].

(b) Even where a proceeding was objectively bound to fail at the time it was instituted, the Court still retains a discretion whether or not to award costs, and may decline to do so in the appropriate case: see Leighton Contractors at [13].

(c) It is not enough that the applicant is ultimately unsuccessful: see Leighton Contractors at [7]; BHP Coal (No 2) at [13]; Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 (Baker) at [9]. 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: see Construction, Forestry, Mining and Energy Union & Ors v Clarke [2008] FCAFC 143 (Clarke) at [29]; Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 (Qantas Airways) at 402; Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745; (2006) 152 FCR 534 (Paras) at [22].

(d) The question must be determined objectively: see Leighton Contractors at [7]; BHP Coal (No 2) at [16]; Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 at [13].

(e) A proceeding will be instituted without reasonable cause if, on the party's own version of the facts, it is clear that the proceeding must fail: see Australian Rail, Tram and Bus Industry Union v Railway Employment Company Pty Ltd and Others [2015] FCA 710; (2015) 237 FCR 290 (per Bromberg J) at [26], [34]; Leighton Contractors at [7]; Baker at [9].

1. In determining whether one party's "unreasonable act or omission caused the other party to incur the costs" for the purposes of s 570(2)(b) of the FWA, the following principles are relevant:

(a) Whether a party has conducted itself or its litigation in such a way as to cross the threshold will depend on the circumstances of the case: Clarke at [28].

(b) The act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding": Clarke at [28].

(c) Once both of the criteria set out above in (a) and (b) are satisfied, then under s 570(2)(b) the Court "may" in its discretion order a party which has engaged in the unreasonable act or omission to pay some, or all, of the costs of the other party: Clarke at [28].

(d) Liability under s 570(2)(b) may arise irrespective of the outcome of the particular application in question, and of the proceeding as a whole: Qantas Airways at [28]; Paras at [16].

(e) The prosecution of an incompetent or hopeless case can be regarded as an "unreasonable act" within the meaning of s 570(2)(b): Qantas Airways at [36].

1. As to the reasonableness of refusing an offer to settle for the purposes of s 570(2)(b) of the FWA, the principles include the following:

(a) The test is evaluative and whether an act or omission is "unreasonable" depends on the circumstances in which it occurred: see Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 (Celand) at [163]; Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia (No 4) [2024] FCA 453 (Tredders Investments) at [36].

(b) It is not necessary to identify "exceptional circumstances" or overcome any comparable terminological hurdle. The statutory language rather than a judicial gloss must be applied: see Leighton Contractors at [7]; Celand at [74]; Tredders Investments at [36].

(c) The context indicates a legislative intention that costs will rarely be awarded. An inefficient or misguided approach to the litigation may not suffice to amount to an unreasonable act or omission justifying departure from the rule: see Celand at [72]-[73], [163]; Tredders Investments at [36].

1. As I understand the respondent's submissions, the respondent seeks an order for the payment of part or the whole of its costs on three bases.
2. First, the respondent seeks payment of its costs in relation to the appellant's application to admit fresh evidence pursuant to s 570(2)(a) of the FWA on the indemnity basis, or, alternatively, on a party-party basis. The respondent submits that the six affidavits the appellant relied upon were unnecessarily voluminous, prolix and irrelevant and that much of the evidence came into existence after the trial. To the extent it existed before the trial, the appellant had failed to demonstrate he was unaware of the evidence, or that he could not with reasonable diligence have become aware of it prior to, or during the trial. It is submitted that the application to admit fresh evidence was made in contravention of known law; was from the outset misconceived in the sense of being incompetent or unsupportable; and in those premises was instituted "vexatiously and without reasonable cause" for the purposes of s 570(2)(a) of the FWA.
3. Second, the respondent seeks its costs in the appellant's appeal from 2 November 2022, based on the appellant's failure to accept a written offer to settle made by the respondent on 18 October 2022 which expired on 1 November 2022. The offer was to settle the costs application in the FCFCOA and the application for an extension of time and appeal in this Court, on the basis that the appellant would discontinue his application with no order as to costs and the respondent would likewise discontinue the application for costs in the FCFCOA.
4. The respondent submits that in light of the obvious deficiencies and clear lack of merit in the appellant's grounds of appeal, he should have accepted the offer to settle. It is submitted that his failure to do so was an "unreasonable act or omission" for the purposes of s 570(2)(b) of the FWA.
5. Third, the respondent submits that the appellant's prospects of success were negligible and that the grounds of appeal were without merit. I understand the respondent to argue that, within s 570(2)(a), the Court should be satisfied that the appellant instituted the proceedings vexatiously or without reasonable cause, and, within s 570(2)(b), the applicant's unreasonable institution of the proceeding caused the other party to incur costs.

1. I will consider the respondent's third argument first. The appellant's grounds of appeal were certainly not strong. Nevertheless, I considered them to have sufficient merit to allow the extension of time. I am not satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause within s 570(2)(a), or unreasonably within s 570(2)(b).
2. The respondent's second argument is that it was unreasonable for the appellant not to accept the respondent's offer for the appellant to discontinue his application for an extension of time with no order as to costs, while the respondent would discontinue its application for costs in the FCFCOA. I am concerned only with whether the respondent should have its costs of the appeal awarded against the appellant, including the costs of the associated interlocutory applications. Any question of costs before the FCFCOA is not, in my opinion, relevant to the determination of that issue. In circumstances where the usual position is that there would be no order as to the costs of the application for an extension of time and any subsequent appeal, I do not consider it unreasonable within s 570(2)(b) for the appellant not to have accepted an offer to discontinue the application on the basis that each party would bear its own costs.
3. As to the respondent's first argument, it is not apparent that s 570(2)(a) applies to an interlocutory application to adduce fresh evidence, but in any event, I do not consider that the application itself was instituted vexatiously or without reasonable cause. However, it was unreasonable for the appellant to prosecute the application in the manner that he did. I accept the respondent's submission that the material the appellant relied upon was prolix and that much of it was irrelevant, particularly material concerning events that had occurred after the FCFCOA proceeding. I accept that the respondent is likely to have incurred some costs through his lawyers having to read and make submissions about that material. However, I am not satisfied that the costs are likely to have been substantial enough to warrant the exercise of the Court's discretion to make an award of costs.
4. In the circumstances, I decline to make an order for costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.