McLoughlin v Randstad Pty Ltd (No 2) [2021] FCAFC 177

McLoughlin v Randstad Pty Ltd (No 2) [2021] FCAFC 177

The respondents' conduct in defending the appeal was not unreasonable under s 570(2)(b) of the Fair Work Act 2009 (Cth) as there were arguable grounds to support the primary judge's decision, and ambiguity in the primary judgment warranted attempts to defend it. Consequently, no costs order is made against the respondents. However, as the appeal succeeded on a question of law and a new trial was ordered due to no fault of Ms McLoughlin, she is granted a costs certificate under s 8(3) of the Federal Proceedings (Costs) Act 1981 (Cth).

Parties
Appellant: Beverly McLoughlin; First Respondent: Randstad Pty Ltd; Third Respondent: Brooke O'Keefe; Fourth Respondent: Nick Pesch
Jurisdiction
Australia
Judgment Date
01 October 2021
Procedural Posture
Appeal / Post Appeal Determination of Costs
Outcome
Appellant granted a costs certificate; no costs order against respondents; application for costs certificates for second and third respondents refused.
Legal Topics
Costs, Fair Work Act, Costs Certificates, Appeal Procedures, Reasonableness of Conduct, Remittal for Retrial
Employment and Industrial Relations Costs Fair Work Act Costs Certificates Appeal Procedures Reasonableness of Conduct Remittal for Retrial

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Beverly McLoughlin

Appellant

Randstad Pty Ltd

First Respondent

Brooke O'Keefe

Third Respondent

Nick Pesch

Fourth Respondent

Procedural Posture

Appeal / Post Appeal Determination of Costs

Legal Issues

  1. 1 Whether costs discretion is enlivened for a costs order against respondents under the Fair Work Act 2009 (Cth)
  2. 2 Whether defence of the appeal by respondents was unreasonable under s 570(2)(b)
  3. 3 Whether costs certificates should be granted to the appellant and/or the other respondents under Federal Proceedings (Costs) Act 1981 (Cth)

Ratio Decidendi

The respondents' conduct in defending the appeal was not unreasonable under s 570(2)(b) of the Fair Work Act 2009 (Cth) as there were arguable grounds to support the primary judge's decision, and ambiguity in the primary judgment warranted attempts to defend it. Consequently, no costs order is made against the respondents. However, as the appeal succeeded on a question of law and a new trial was ordered due to no fault of Ms McLoughlin, she is granted a costs certificate under s 8(3) of the Federal Proceedings (Costs) Act 1981 (Cth).

Court Disposition

Appellant granted a costs certificate; no costs order against respondents; application for costs certificates for second and third respondents refused.

Orders

  • It is certified under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) that it would be appropriate for the Attorney-General to authorise payment to the appellant in respect of part of the costs incurred in relation to the new trial.
  • No costs order made against the respondents.