//
[2023] VCC 1083
General information, not legal advice.
County Court of Victoria
2023-06-28
Original judgment source is linked above.
[1] The proposed payment was $130,000. But it excludes a costs order made against the plaintiffs on 18 February 2021 which was likely to total about $20,000.
[6] Altintas v O'Dea Lawyers (No 2) [2018] FCAFC 187, [6], [13]-[14] (White, Perry and Charlesworth JJ); Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166
[7] PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53, [15] (Rangiah, Charlesworth and Snaden JJ)
[8] Fair Work Ombudsman v Grouped Property Services (No 3) [2017] FCA 810, [26] (Katzmann J)
[9] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, 582 [29] (Tamberlin, Gyles and Gilmour JJ)
[10] Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954, [8] (Bromberg J)
[15] Spotless Services Australia Ltd v Senior Deputy President Marsh [2004] FCAFC 155 at [12]- [13] ("Spotless")
[16] R v Moore; ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473 per Gibbs J; Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission and Anor (2006) 156 FCR 275 at [60]
[17] Nilsen v Loyal Orange Trust [1997] IRCA 267; (1997) 76 IR 180, 181 per North J quoted in Messenger at [13]
[18] R v Moore; ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473
[19] See Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-5 per Wilcox J which was approved in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission and Anor (2006) 156 FCR 275
[20] [2015] FCAFC 20; (2015) 229 FCR 221. The Court relied upon the detailed judgment of White J in Stanley v Service To Youth Council Inc (No 3) [2014] FCA 716; (2014) 225 FCR 357 which tracked the legislative history and explanatory memoranda supporting the construction of section 570 of the FWA which the Full Court adopted.
[23] Ibid at [167] referring to Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224; (2002) 190 ALR 121 at 128 per Weinberg J
[29] See for example the discussion and cases referred to in BSA Ltd v Bradshaw (No 2) [2021] FCA 1182 at [7]- [10]
[31] See [416] of the principal reasons
[32] See [418] of the principal reasons
[33] See [427] and [433] of the principal reasons
[34] See [479] - [517] of the principal reasons
[37] In this case, for example, the Statement of Claim was 48 pages, the Defence was 70 pages and the Court Book comprised about 3,650 pages.
[38] I note that from at least November 2019, the defendants maintained that, in calculating the EBITDA, the missing cash was to be taken into account as a reduction in revenue or as an expense.
[39] See IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 31; (2010) 268 ALR 1 (FCAFC); Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40
[40] It appears that the employment claims were first raised in a letter from Sharrock Pitman Legal to Ekera dated 3 April 2019.
[43] See plaintiffs' costs submissions at [22], [30]-[31], [37], [40] and [42]
Creative Smiles Pty Ltd & Anor
Ekera Dental Pty Ltd & Anor
s Union (No 2)_ [2023] FCA 363; IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 31; (2010) 268 ALR 1 (FCAFC); Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67; (2021) 284 FCR 546; Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221; Messenger v Commonwealth of Australia (No 2) [2023] FCA 20; Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954; Nilsen v Loyal Orange Trust [1997] IRCA 267; (1997) 76 IR 180; PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53; R v Moore; ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470; Spotless Services Australia Ltd v Senior Deputy President Marsh [2004] FCAFC 155; Stanley v Service To Youth Council Inc (No 3) [2014] FCA 716; (2014) 225 FCR 357; Stolz v Registered Clubs Association of New South Wales [2022] FCA 1451; Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166; Tucker v State of Victoria (No 2) [2021] VSCA 182; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
"(a) the occasions on which costs will be awarded under s 570 of the FW Act are likely to be exceptional: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 (Mutch) at [8] (Bromberg J);
(b) the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 (Grouped Property Services) at [26] (Katzmann J); Tucker v State of Victoria [No 2] [2021] VSCA 182 (Tucker) at [32(h)] (Kyrou, McLeish and Sifris JJA);
(c) the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 (Clarke) at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 (Comcare (No 2)) at [8] (Bromberg J); Tucker at [32(h)];
(d) the term "unreasonableness" is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the FW Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7];
(e) unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v King [No 2] [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ);
(f) it is well settled that the limitation imposed by s 570 of the FW Act seeks to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims: Mutch at [7] citing Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe at (Mortimer J); Comcare (No 2) at [8] (Bromberg J);"
(2002) 190 ALR 121
(2017) 256 FCR 306
(2006) 156 FCR 275
(2010) 268 ALR 1
(2021) 284 FCR 546
(1992) 43 IR 257
(2015) 229 FCR 221
(1978) 140 CLR 470
(2014) 314 ALR 166
(2013) 232 FCR 428
(2008) 170 FCR 574
(1997) 76 IR 180
(2014) 225 FCR 357