Costs of the appeal
13 The appellants submit that they should have their costs of the appeal because they were successful and because the respondent acted unreasonably in refusing an offer to settle the appeal. That offer was for the parties to consent to the judgment being set aside on the basis that each party bear its own costs.
14 Failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2)(b) of the Fair Work Act: Melbourne Stadiums v Sautner (2015) 317 ALR 665 at [166]. However, I do not consider that it was unreasonable for the respondent to have refused the appellants' offer. The offer was not one strictly capable of being accepted because the parties cannot consent to an appeal being allowed - it would still have been necessary for the appellant to appear at a hearing to demonstrate error in the judgment of the primary judge. In addition, as the appellants' town agent made no submissions as to the exercise of the primary judge's discretion, it was difficult for the respondent to properly assess the merits of the proposed appeal at the time the offer was made. In fact, the appellants' argument was not fully revealed until the hearing of the appeal. Further, the principal grounds of the appeal, dealing with the question of whether the appellants were in default, ultimately failed. In these circumstances, the respondent's rejection of the offer was not unreasonable.
15 The appellants also submit that the respondent acted unreasonably by leading the primary judge into error by contending for a test which this Court found was the wrong test. A party does not necessarily act unreasonably merely by making a legal submission which an appellate court later finds to be wrong. In any event, if the appellants' town agent had been properly instructed, he could have made the submissions about the exercise of the primary judge's discretion eventually made in the appeal instead of remaining silent.
16 The appellants also submit that they should have their costs because the respondent's counsel "pressed for findings" before the Federal Circuit Court regarding the candour and conduct of the second appellant that were not sustainable on the evidence. The respondent's counsel certainly made strong submissions concerning the second appellant's conduct, but I do not accept that he pressed for findings as to such conduct. While some of the primary judge's comments were not justified, I do not think that those comments can be attributed to the conduct of the respondent's counsel.
17 In these circumstances, the discretion under s 570(2) of the Fair Work Act to award the appellants their costs of the appeal is not enlivened.
18 The respondent seeks part of his costs of the appeal. The appellants' notice of appeal described approximately 22 alleged errors on the part of the primary judge. The appellants' outline of submissions filed in advance of the hearing addressed only some of the alleged errors. However, at the hearing of the appeal, the appellants indicated that all the alleged errors, except one, were pressed. I heard oral argument upon all the grounds that were pressed. The respondent then applied for an adjournment on the basis that he required an opportunity to consider the grounds argued that were not dealt with in the written outline. I granted the adjournment and the matter subsequently came on for further hearing on another day.
19 The appellants' failure to address all their grounds in their outline of submissions caused the adjournment of the hearing and the necessity for the second day of the hearing. The appellants' conduct was unreasonable. In these circumstances, it is appropriate that the appellants' pay the respondent's costs of the second day of the hearing, including the costs of preparation for the second day.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.