Guthrie v Mondiale VGL Pty Ltd

1. On 23 March 2021, his Honour Judge Lucev delivered Reasons for Judgment in Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479 (Guthrie No 1). In that decision, his Honour dismissed an application by the applicant for an interim injunction for mandatory reinstatement of the applicant's employment with the respondent (Mondiale VGL). Any application for costs under r 21.02(1) of the Federal Circuit Court Rules 2020 (Cth) was to be made by the parties within seven days. No application was made.
2. On 23 May 2023, his Honour Judge Lucev delivered Reasons for Judgment in Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384 (Guthrie No 2). In that decision, his Honour declared that the termination of the applicant's employment by the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (Act).
3. On 19 June 2025, this Court made orders for the payment of compensation, a pecuniary penalty and interest because of the respondent's contravention. The Reasons for Judgment are to be found in Guthrie v Mondiale VGL Pty Ltd (No 2) [2025] FedCFamC2G 938 (Guthrie No 3). The question of any costs payable by either party in relation to the proceeding was reserved.
4. On 13 September 2025, the applicant filed an application in the proceeding seeking an order pursuant to s 570(2)(b) of the Act, that Mondiale VGL pay the applicant's costs of the proceeding (costs application).
5. The hearing of the costs application took place via video link on 2 October 2025. Mr Raftos, solicitor appeared for the applicant. Ms Wong of counsel appeared for Mondiale VGL.

1. The following background is from [7] of Guthrie No 3 and [11] of Guthrie No 1:
   1. Mondiale VGL is a freight and forwarding, and customs brokering company with offices in all States of Australia;
   2. Mr Guthrie commenced employment with Mondiale VGL on 10 June 2014 in New South Wales, and was initially employed as a casual Day Shift Heavy Combination Driver ("Day Shift Driver");
   3. on 29 January 2015 Mr Guthrie commenced as a permanent Day Shift Driver;
   4. Mr Guthrie subsequently requested to work as an Afternoon Shift Driver, a move approved by Mondiale VGL, resulting in Mr Guthrie commencing as an Afternoon Shift Driver on 17 August 2017;
   5. in November 2018 Mr Guthrie advised Mondiale VGL that he would be relocating to Western Australia ("WA") for family reasons;
   6. Mr Guthrie moved to WA in January 2019 as a Day Shift Driver;
   7. Mr Guthrie then requested to work an afternoon or night shift pattern to enable him to care for his child; and
   8. on 9 December 2019 VGL made a decision to dismiss Mr Guthrie for alleged "nonprofessional work behaviours displayed in the workplace" which were said to be in contravention of the VGL "Code of Conduct and Ethics, the Health, Safety, Environment and Quality Administrative 'Three Strike Policy'" ("Dismissal Decision").
2. In Guthrie No 2 his Honour Judge Lucev made various findings regarding the Dismissal Decision that are recorded in paragraphs [8]-[15] of Guthrie No 3. It is not necessary to repeat those findings, save to say, that Mondiale VGL did not satisfy the reverse onus of proof and did not call all of the relevant decision-makers that participated in the Dismissal Decision. His Honour found that the Dismissal Decision was not made for the reasons stated in the letter of termination given to the applicant at the time of termination of his employment.
3. His Honour also dismissed claims made by the applicant against Mondiale VGL for underpayment of wages and an alleged failure to include required information on payslips in contravention of reg 3.46(3) of the Fair Work Regulations 2009 (Cth) (Fair Work Regulations). These claims failed because of a lack of evidence (Guthrie No 2 at [172] and [178]).

1. In support of the costs application, the applicant filed an affidavit sworn 11 September 2025 and a further affidavit sworn 25 September 2025. The second of these affidavits related to matters arising from the application for an interim injunction in Guthrie No 1, but it is not now necessary to consider those matters as Mondiale VGL does not seek to pursue any order for costs in relation to that part of the proceeding.
2. In the affidavit sworn 11 September 2025, the applicant asserts that Mondiale VGL caused him to incur costs in the proceeding by unreasonably defending his claims for relief, in circumstances where Mondiale VGL knew that it did not have a defence to his claims of adverse action.
3. The applicant sought to rely on the findings of Judge Lucev in Guthrie No 1 at [73] and [87(d)] and in Guthrie No 2 at [39], [48], [117], [149] and [156]. The applicant also referred to parts of the transcript of the hearing before Judge Lucev on 14 and 15 February 2022 (Guthrie No 2). In particular passages of the cross-examination of Mr Punter, the National Transport Manager for Mondiale VGL, where he referred in his evidence to the Senior Management Team making the Dismissal Decision (Guthrie No 2 at [76]).
4. The applicant did not seek to recover the costs of the unsuccessful application for reinstatement in Guthrie No 1 but did seek the costs of the hearing before Judge Lucev where liability for breach of the Act was established. The applicant contends that it was unreasonable for Mondiale VGL not to admit the alleged breach of workplace rights and adverse action especially where the relevant members of the Senior Management Team did not give evidence about the Dismissal Decision and why it was in fact made.
5. The applicant contends that the conduct of Mondiale VGL, in putting the applicant to the proof of his claims for adverse action, was unreasonable because it should have known that it did not have a defence to the applicant's claims of adverse action, had no prospects of success and unreasonably caused the applicant to incur costs.

1. Ordinarily, costs of legal proceedings under the Act are borne by the parties. A party will only be entitled to an order that costs be paid by another party where the Court is satisfied that one of the circumstances in s 570(2) of the Act arises. Those circumstances are:

(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. The applicant seeks to rely on s 570(2)(b) of the Act which requires the Court to be satisfied that an unreasonable act or omission caused the applicant to incur costs.
2. In Ryan v Primesafe [2015] FCA 8, Mortimer J (as her Honour then was) said at [64]:

[64] ...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...with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. [In relation to respondents], it is designed to ensure [that] the respondents feel free to pursue arguable legal and factual responses to the claims made against them.

1. In an otherwise no-costs jurisdiction, the discretion to order costs must be exercised with caution (see Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227 at [3] per Burley J (Murdock); Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J).
2. A clear case for its exercise must be demonstrated. Even where the threshold is met, the Court retains a discretion which must be exercised judicially (Murdock at [3]-[4]).
3. The applicant for costs bears the onus of satisfying the Court that one or more of the criteria in s 570(2) of the Act are met. Determining whether a party acted unreasonably must be determined objectively according to the facts on a case-by-case basis (see Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 at [39] per Tracey J (Qantas)).
4. In Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [166], the Full Federal Court found that a failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purpose of s 570(2)(b) of the Act. However, that is not applicable here because, perhaps surprisingly, there is no evidence of a prehearing offer that was unreasonably refused by either party (see also Lees v Asaleo Personal Care Pty Ltd [2023] FCA 334 per Hespe J).
5. In Kambouridis v LR Reed City Pty Ltd [2020] FCCA 1484 (Kambouridis), the Fair Work Commission (FWC) determined a dispute and the respondents failed to comply with the FWC order. The respondents gave no reason for not complying with the FWC order. This conduct '...effectively forced the applicant to bring proceedings, despite there being no real dispute: such conduct is unreasonable as it wastes the applicant's costs' (Kambouridis at [35] per Judge Riethmuller (as his Honour then was)).
6. In Fair Work Ombudsman v WCH Services Pty Ltd [2018] FCCA 1876, the applicant sought costs under s 570(2)(b), or alternatively s 570(2)(c), in circumstances where the respondents failed to comply with a FWC order and did not engage in the proceedings before the FWC or the then Federal Circuit Court. Judge Hartnett (as her Honour then was) awarded costs to the applicant under s 570(2)(b) for the following reason at [55]:

[55] ...On an objective analysis of the circumstances, the Respondents' conduct has not been what a reasonable person would expect, and has directly caused the Applicant to incur costs. The Respondents have been put on notice as to the costs application and have provided no response for the Court to consider. The Court is satisfied that the Respondents failure to pay the amount ordered by [the FWC] to [the Applicant] was unreasonable and has caused the Applicant to incur costs.

1. In Rahman v Commonwealth of Australia (as represented by the Australian Taxation Office) [2013] FCCA 388 (Rahman) at [4] Judge Driver said:

[4] I accept generally the parties' submissions concerning the relevant principles to be applied. In ordinary circumstances, the court is not empowered to order costs in matters arising under the Fair Work Act. The power is enlivened by a party's unreasonable act or omission. Once the power is enlivened, the Court has a broad discretion. What is an unreasonable act or omission will depend upon the facts of the particular case. A procedural failure may, prima facie, be unreasonable and a pleading failure (by which I mean something put in or left out of a pleading) which is unreasonable may also enliven the power. A finding of an unreasonable act or omission must be the exception rather than the rule. It follows that a reasonably high bar needs to be set for a party alleging an unreasonable act or omission.

[7]The expression "an unreasonable act or omission" used in s 570(2)(b) of the Fair Work Act should bear its ordinary meaning. The test is not whether Mr Rahman acted in a manner that no reasonable person would have acted or that the pleadings were drafted in a manner that no reasonable person could have drafted pleadings.

1. The applicant provided an outline of written submissions filed 12 September 2025 in which the applicant submitted that it was unreasonable for Mondiale VGL to not admit the adverse action claim and that the applicant was terminated for exercising workplace rights.
2. The written submissions did not identify that part of the costs of the applicant that were said to have been incurred by the unreasonable refusal to admit the applicant's claim. Emphasis was placed on the evidence at the hearing before Judge Lucev in Guthrie No 2 and on the absence of evidence from the other decision-makers who made the Dismissal Decision.
3. It was submitted that his Honour effectively warned Mondiale VGL in Guthrie No 1 at [73] and [87(d)] that there was an absence of evidence regarding the decision-making process that was required to be address. Further no explanation was given at the hearing as to why relevant witnesses were not available or not called.
4. Therefore, it was submitted, that those advising Mondiale VGL and those that gave instructions to defend ought to have known that, the defence that the termination of the applicant was lawful, could not succeed. In particular, the applicant relied on the finding at [156] of Guthrie No 2 that the assertion that Mr Punter and Ms Coleman (who gave evidence at the hearing) were the joint decision-makers could not be sustained on the evidence because the evidence of Mr Punter was that the joint decision-makers were Mr Punter, Ms Coleman, Mr Harris, Mr Mu Sung and Mr McLaughlin.
5. The lack of evidence supporting the defence was also apparent from the lack of documentation produced by Mondiale VGL to support the Dismissal Decision.
6. His Honour also found that Mondiale VGL had made up untrue allegations against Mr Guthrie to support the Dismissal Decision (Guthrie No 2 at [36] and [48]). The applicant submitted that Mondiale VGL knew that it could not disprove the applicant's claims and the reasonable and appropriate course was to admit a breach of the Act and to proceed to a compensation and penalty hearing. "Running a baseless defence when Mondiale VGL knew it did not have a defence and no prospects of success was unreasonable and caused Mr Guthrie to incur costs".
7. From this it can be inferred that only the costs of the liability hearing were caused or incurred by the alleged unreasonable conduct of Mondiale VGL and that the compensation and penalty hearing (Guthrie No 3) would have occurred in any event. Mr Raftos clarified the applicant's position at the hearing of the costs application by submitting in reply that only costs after the unsuccessful application in Guthrie No 1 were sought and only in relation to the three days of hearing before Judge Lucev on the issue of liability under the Act.

1. On behalf of Mondiale VGL it was submitted that there should be no departure from the ordinary rules about costs in matters under the Act and especially so, where a respondent is simply unsuccessful in the defence of a claim and/or had Jones v Dunkel inferences drawn against it due to the absence of witnesses.[1]
2. It was submitted that the costs application is misconceived because Mondiale VGL was successful in defending "several" of the claims made by the applicant. Reference was made to an abandoned interlocutory application before the hearing on liability, for which no costs order was made and the absence of evidence by the applicant that established a causal link between the conduct of Mondiale VGL and any particular costs incurred by the applicant. Mere reliance on transcript was not sufficient to establish the level of satisfaction required to make an order under s 570(2)(b) of the Act.
3. Ms Wong also referred to the finding of Judge Lucev at [143]-[144] of Guthrie No 2 where he found that the applicant engaged in what could be characterised as low-level disrespect, when corresponding with Ms Coleman (the National Human Resources Manager for Mondiale VGL). This was stated by Mondiale VGL to be one of the reasons for terminating the applicant. Therefore, the defence to the applicant's claim was not unwarranted or unreasonable especially when the applicant's claims for underpayments and breach of the Fair Work Regulations were successfully resisted by Mondiale VGL. Mondiale VGL was entitled to resist these claims, especially so where there was no evidence to support them.
4. Ms Wong submitted that costs under the Act were not intended to be punitive and were the exception rather than the rule (see Rahman per Judge Driver). The authorities relied on by the applicant were inapt because none of them involved similar circumstances to this case. Reliance by the applicant on Murdock and Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [74] (Celand) simply reinforce the proposition that making a costs order under s 570 of the Act should be approached with 'exceptional caution'. Celand was also authority for the proposition that there must be proof that an unreasonable act or acts are the cause of costs to be incurred.
5. It was submitted that, given the seriousness of a finding of unreasonable conduct under s 470(2)(b) of the Act, the Court should apply a standard of satisfaction equivalent to the very serious allegations made (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (per Dixon J) and s 140 of the Evidence Act 1995 (Cth)). The applicant was alleging a lack of bona fides, akin to dishonesty, by Mondiale VGL and those advising it and the Court should be reluctant to draw adverse inferences about a respondent's state of mind without clear evidence.
6. In the written outline of submissions filed on behalf of Mondiale VGL, reference was made to an interlocutory application made on 19 May 2021 to amend the applicant's claim that was ultimately not pursued by the applicant. It was submitted that the conduct of the proceeding, as a whole, should be considered and the Court should avoid splitting issues for the purpose of assessing costs. When viewed as a whole, the proceeding was hard fought by both parties and both had a measure of success. Mondiale VGL successfully defended the application for an interlocutory injunction (for which no claim for costs was made) and resisted aspects of the applicant's claims on liability and also aspects of the claims for compensation and penalty upon which the applicant was unsuccessful or failed to provide adequate evidence. It was inappropriate for the Court to look at findings in isolation and conclude that part of the defence of the proceedings was unreasonable. The pursuit of contentious and ultimately unsuccessful arguments is not an unreasonable act (Qantas at [36] per Tracey J).
7. Reliance was also place on the decision in Tran v Macquarie University (No 3) [2020] FCCA 1010 where Judge Humphreys declined to make an order for costs in a proceeding, under the Act where the respondent was required to pay compensation and penalties for breach of s 340 of the Act. In that case, one of the key decision-makers in terminating the applicant was not called to give evidence. His Honour observed at [80] that it should have been apparent to the respondent that the failure to call the decision-maker would be a serious obstacle to the successful defence of the case. Nevertheless, his Honour was not satisfied that the respondent's actions were so unreasonable to warrant an order for costs. His Honour said at [79]:

[79] The starting point for consideration of whether or not costs should be awarded is that the Court must be satisfied that the Respondent's unreasonable acts or omissions caused the Applicant to incur the costs. It will be a rare case where costs will be awarded. The evidence justifying such an award would needs to be very clear

1. Applying the principles and cautionary approach identified in the cases identified above, I am not satisfied that the conduct of Mondiale VGL in defending the applicant's claims in respect of the alleged adverse action and breach of the Act was unreasonable or that it caused any particular legal costs to be incurred by the applicant.
2. I am mindful that an order for costs in matters arising under the Act are not frequently made and the jurisdiction to do so must be exercised with caution. The Court must be satisfied that an unreasonable act or omission caused costs to have been incurred. This level of satisfaction must be reached by clear evidence of an unreasonable act or omission that had a causal link to identifiable costs.
3. The applicant submits that the entire costs of the proceeding after the unsuccessful application for reinstatement were incurred due to Mondiale VGL refusing to admit adverse action which the applicant says should not have been defended. This is casting the net too wide.
4. Assuming, that Mondiale VGL did admit a breach of the Act for which compensation and a penalty was payable, the costs of the compensation and penalty hearing would have been incurred in any event. It is also noted that the applicant had only limited success in proving the heads of compensation sought and sought significantly larger penalties than were ordered. Further, the fact that compensation and penalties were ordered as they were, was based in part on the conduct of Mondiale VGL in terminating the applicant's employment for reasons other than those stated in the letter of termination. Mondiale VGL was ordered to pay amounts for hurt and humiliation as well a penalty amount that was ordered to be paid to the applicant. The costs of the compensation and penalty proceeding could not be said to have been caused by any unreasonable act or omission by Mondiale VGL, they were costs that would have been incurred by the parties in any event. There is no reason to depart from the no costs jurisdiction in relation to that aspect of the proceeding.
5. There were no costs orders sought following the decision of Judge Lucev in Guthrie No 1. His Honour invited the parties (in particular, Mondiale VGL) to make any application for costs arising from that application within seven days. Neither party elected to do so. The costs of that interlocutory application could not be said to be caused by an unreasonable act or omission by Mondiale VGL. No costs were sought and the usual rule in relation to costs under the Act applied to that aspect of the proceeding.
6. That leaves the costs of the preparation for and conduct of the hearing before Judge Lucev on liability that took place in person, in Perth, on 14 and 15 February and 9 March 2022. The applicant was not entirely successful in all aspects of his claims on liability. He did succeed in establishing the necessary prerequisites under s 340 of the Act thus reversing the onus that the Dismissal Decision was not made for an impermissible reason. Mondiale VGL was not able to persuade the Court on the balance of probabilities that it was not motivated by an impermissible reason (s 361 of the Act). That does not mean that it should never have tried to do so or that it acted unreasonably in seeking to do so.
7. Forensic decisions are frequently made in the running of hearings under the Act in this Court and other courts in all jurisdictions. That a decision to call or not call witnesses which is unexplained does not invite an inference that a party has acted unreasonably. A failure to call a witness may invite the court to draw an inference that the evidence of that witness may not assist the claim or defence (Jones v Dunkel at 308 per Kitto J, 312 per Menzies J and 320-1 per Windeyer J). That inference was drawn by Judge Lucev in this case to the detriment of the defence, but without more that is not an unreasonable act or omissions that causes costs to be incurred.
8. It was submitted that Mondiale VGL was warned in the reasons for judgment in Guthrie No 1 that the evidence regarding the Dismissal Decision was weak or was missing (Guthrie No 1 at [79]) and required explanation (Guthrie No 1 at [87(d)]). However, I am not persuaded that the response by Mondiale VGL to the weaknesses in its defence was so unreasonable that it should be required to pay the costs of and incidental to the entire liability hearing. The observation of Judge Lucev in [87(d)] of Guthrie No 1 did result in Mr Punter providing an affidavit for the hearing and making himself available for cross-examination.
9. It may have been the case that the evidence of Mr Punter at the hearing in cross-examination, made plain that others in the Executive Team were party to the Dismissal Decision and those witnesses were not called to give evidence and no explanation for their absence was given but that does not mean that defending the applicant's claim was so hopeless as to make the act of defending the claim in its entirety unreasonable. Perhaps the applicant's position may have been stronger if the applicant abandoned at or before the hearing, the other claims made by him on which he failed or had no evidence but he did not.
10. It is dangerous in hard fought litigation, as occurred in this proceeding, to engage in dissecting forensic decisions as to the merits of individual aspects of claims and assessing them as reasonable or unreasonable for the purpose of making a costs order under s 570(2) of the Act. It invites minute scrutiny of conduct after the event. In some circumstances, the conduct of a party may be so clearly unreasonable that no other right-minded litigant, observing the overarching purposes identified in ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) would have acted or omitted to act as they did. However, this is not a clear case of such conduct and there is no clear evidence that the defence of the applicant's claims on liability was altogether hopeless and ought never to have been pursued from any identifiable date after the decision in Guthrie No 1.
11. Both parties had some measure of success at the hearing on liability. The fact that the evidence advanced by Mondiale VGL as to the veracity of the Dismissal Decision was found not to have been persuasive and an adverse inference was drawn because of the absence of witnesses without explanation does not warrant a departure from the ordinary rule that there be no order as to costs for proceedings under the Act. Especially where there are other aspects of the defence on which Mondiale VGL was successful in defending.

1. The applicant has not established to the satisfaction of the Court that an unreasonable act or omission of Mondiale VGL has caused the applicant to incur legal costs. The costs application filed 13 September 2025 is dismissed.

1. The application in the proceeding filed by the applicant on 13 September 2025 is dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel).