Eustace v North Coast Petroleum Pty Ltd

1. On 23 October 2024 the applicant, Mr Eustace, filed an application and accompanying Form 4 alleging multiple contraventions of the Fair Work Act 2009 (Cth) (FW Act) by the respondent, North Coast Petroleum Transport Pty Ltd. Mr Eustace was employed by North Coast Petroleum Transport as a fuel tanker operator.

1. On 31 October 2024, I ordered the applicant to file and serve an amended application and Form 4 claim form for the purpose of listing the correct respondent. An amended application and an amended Form 4 claim form were filed on 7 November 2024 and since that amendment a response and defence have been filed, a mediation held, and the respondent provided in June 2025 with a copy of a proposed further amended Form 4. No trial evidence has yet been filed.

1. On 11 June 2025 the applicant filed an application in a proceeding seeking leave to file a further amended Form 4. On 20 June 2025, I heard submissions on that application: Eustace v North Coast Petroleum Pty Ltd [2025] FedCFamC2G 1048.
2. The applicant's reasons for seeking leave included the fact that new causes of action arising from substantive facts already pleaded had been identified, namely breach of an award and underpayment, and a limitation defence was now addressed.
3. I observed at the time that the proposed amended Form 4 was poorly drafted in the sense that it was dense and fact heavy and contained unnecessary material, including material which would have been more appropriately mentioned in an affidavit rather than in a pleading. I determined that before I could consider a further amendment of the applicant's claim, the pleading would have to be revised so that it clearly articulated the allegations against the respondent. The matter was stood over for further hearing to today.
4. In the meantime, the respondent has indicated its consent to the amendment.

1. The respondent now seeks an order for its costs thrown away by reason of the amendment. The costs in question are said to concern:

(1) drafting further and better particulars in response to a request filed 21 November 2024;

(2) drafting a defence and response; and

(3) preparing for and attending a mediation.

The respondent relies on the following supposedly unreasonable acts or omissions of the applicant associated with the costs claimed:

(a) failing to provide an explanation for the amendments;

(b) failing to raise matters now contained in the amended pleadings which ought to have been known at the time the initial pleading was filed;

(c) amending the pleading at all as the respondent "has always been on notice of [the] claim";

(d) extending the scope of the amendments, thereby unnecessarily prolonging the proceeding; and

(e) prejudicing the respondent by causing it to incur further costs and delay in order to respond to the amended claim when a defence and response had already been filed responding to the previous pleading.

1. In correspondence, the applicant's solicitors objected to paying the respondent's costs, giving the following reasons:

(1) the limited discretion conferred by s.570(2)(b) ought not become the basis for arguments about costs in relation to every and any transgression: Saxena v PFF Asset Management Ltd [2011] FCA 395 at [6];

(2) the claims had little to no merit because:

(a) the respondent relied on two conflicting propositions which could not be true concurrently, namely:

(i) the respondent asserted that it has "always been on notice of [the applicant's] claim; and

(ii) the respondent asserted that it has been prejudiced as the proposed amendments would incur additional costs in responding;

(b) the criticism that the applicant ought to have known about and/or made the amendment was really a matter of hindsight;

(c) the Court was already satisfied that the amendments arose out of counsel's involvement in the matter;

(d) the respondent was seeking costs of a mediation that would have happened regardless of the applicant filing a further amended pleading; and

(e) the respondent failed to articulate clearly the exact prejudice it had suffered.

570 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:

...

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

...

1. In Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 at [64], Mortimer J noted:

...The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. ... The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. ...

1. There can be no real doubt that the recently proposed amendment comes late and is not consistent with the Court's overarching purpose, which can be summarised as fairness and efficiency in litigation. In any other proceeding, costs thrown away would almost certainly be ordered or conceded. However, this is a Fair Work case, and the Court is guided in its exercise of the discretion to award costs by s.570 of the FW Act.
2. The threshold question that is presented is whether it was unreasonable of the applicant to seek to make the proposed amendments at this point of the proceeding. It appears that the Federal Court is more inclined to order costs in situations such as the present if the applicant is supported by a litigation funder: Bywater v Appco Group Australia Pty Ltd [2018] FCA 707. However, that is not this case.
3. Turning to this case, as I understand it, the amendments came about because counsel for the applicant briefed for the mediation brought a fresh eye to the case and suggested that the pleading needed to be changed. It has to be accepted that most, if not all, of the matters now sought to be raised could have been raised at the outset, if only someone had thought to do so. That is far from an uncommon situation in litigation, which is an iterative contest, and it is almost unavoidable that there is waste in litigation as parties amend their hand and develop their thoughts and arguments. In a very well-ordered case, such things should not occur and, generally, when they do there are consequences. However, under the FW Act, to facilitate the vindication of industrial rights such strictures are not imposed. This is not, for instance, a case where the application to amend arises out of a failure to comply with particular orders of the Court or conduct suggesting a degree of defiance or disrespect of the Court's authority.
4. As this was the first substantive amendment of the pleading, coming at an early procedural, if not chronological, interlocutory point and following the involvement of counsel, the most that can be said of the amendment is that it is unfortunate. It is not unreasonable. For these reasons, the respondent's application for an order that it be paid its costs thrown away by reason of the amendment is refused.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.