Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048

Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048

Although there were shortcomings in aspects of the applicant's conduct, including pleading deficiencies and late withdrawal of some matters, the conduct did not have the quality of unreasonableness required by s 570(2)(b) of the Fair Work Act 2009 (Cth), and Transfield did not establish that the challenged matters caused separate costs that would otherwise have been unnecessary. Transfield's own non-compliance with pre-trial programming orders also weighed against any discretionary costs order. The costs application was dismissed.

Jurisdiction
Australia
Judgment Date
23 September 2015
Procedural Posture
Application for Costs Under S 570 of the Fair Work Act 2009 (cth) / After Dismissal of the Applicant's Adverse Action and Breach of Contract Claims
Outcome
Respondent's application for costs dismissed.
Legal Topics
['fair Work Act Costs Discretion' 'unreasonable Act or Omission Causing Costs' 'adverse Action Proceedings' 'pleading Deficiencies' 'withdrawal of Claims' 'discovery and Pre Trial Programming Orders']
['employment Law' 'costs' 'civil Procedure'] ['fair Work Act Costs Discretion' 'unreasonable Act or Omission Causing Costs' 'adverse Action Proceedings' 'pleading Deficiencies' 'withdrawal of Claims' 'discovery and Pre Trial Programming Orders']

Case Brief

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Procedural Posture

Application for Costs Under S 570 of the Fair Work Act 2009 (cth) / After Dismissal of the Applicant's Adverse Action and Breach of Contract Claims

Legal Issues

  1. 1 ["Whether the applicant's delay in addressing deficiencies in his statement of claim was an unreasonable act or omission causing the respondent to incur costs under s 570(2)(b) of the Fair Work Act 2009 (Cth)." "Whether the applicant's delay in withdrawing breach of contract claims was an unreasonable act or omission causing the respondent to incur costs under s 570(2)(b) of the Fair Work Act 2009 (Cth)." "Whether the applicant's pursuit until trial opening of the claim concerning the third complaint was unreasonable and caused the respondent to incur costs." 'Whether, if the costs discretion was enlivened, it should be exercised in favour of the respondent.']

Ratio Decidendi

Although there were shortcomings in aspects of the applicant's conduct, including pleading deficiencies and late withdrawal of some matters, the conduct did not have the quality of unreasonableness required by s 570(2)(b) of the Fair Work Act 2009 (Cth), and Transfield did not establish that the challenged matters caused separate costs that would otherwise have been unnecessary. Transfield's own non-compliance with pre-trial programming orders also weighed against any discretionary costs order. The costs application was dismissed.

Court Disposition

Respondent's application for costs dismissed.

Orders

  • ["The Respondent's application for costs be dismissed."]