Duck v Airservices Australia (No 3) [2021] FCA 304

Duck v Airservices Australia (No 3) [2021] FCA 304

Although s 570 of the Fair Work Act does not preclude the Court from making a costs order against a non-party funder, the underlying purpose of s 570 remains relevant to the exercise of discretion. In the interests of justice and in light of the efficient conduct of proceedings, absence of unreasonable conduct, and policy considerations discouraging deterrence to class actions, it is not appropriate to make a costs order against the non-party funder in this case.

Parties
Applicant: Catherine Duck; Respondent: Airservices Australia; Person Affected (non Party Litigation Funder): Augusta Ventures Limited
Jurisdiction
Australia
Judgment Date
30 March 2021
Procedural Posture
Employment Class Action (part IVA FCA Act) / Costs Application Following Dismissal of Proceedings
Outcome
Application for costs order against Augusta Ventures Limited dismissed.
Legal Topics
Representative Proceedings, Class Actions, Costs Orders Against Non Parties, Statutory Interpretation, Fair Work Act S 570, Litigation Funders
Employment Law Industrial Relations Civil Procedure Representative Proceedings Class Actions Costs Orders Against Non Parties Statutory Interpretation Fair Work Act S 570 +1 more

Case Brief

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Parties

Catherine Duck

Applicant

Airservices Australia

Respondent

Augusta Ventures Limited

Person Affected (non Party Litigation Funder)

Procedural Posture

Employment Class Action (part IVA FCA Act) / Costs Application Following Dismissal of Proceedings

Legal Issues

  1. 1 Whether the Court has power to order costs against a non-party funder in proceedings governed by s 570 of the Fair Work Act
  2. 2 Whether s 570 of the Fair Work Act precludes costs orders against non-parties
  3. 3 Whether it is in the interests of justice to make a costs order against a non-party funder

Ratio Decidendi

Although s 570 of the Fair Work Act does not preclude the Court from making a costs order against a non-party funder, the underlying purpose of s 570 remains relevant to the exercise of discretion. In the interests of justice and in light of the efficient conduct of proceedings, absence of unreasonable conduct, and policy considerations discouraging deterrence to class actions, it is not appropriate to make a costs order against the non-party funder in this case.

Court Disposition

Application for costs order against Augusta Ventures Limited dismissed.

Orders

  • The respondent's application for a costs order to be made against Augusta Ventures Limited, the non-party litigation funder for the applicant, be dismissed.
  • There be no order as to costs.