EFEX Group Pty Ltd v Bennett (No 2) [2023] FCA 798

EFEX Group Pty Ltd v Bennett (No 2) [2023] FCA 798

The first respondent was not entitled to the costs order sought because raising the estoppel by convention argument and later abandoning it did not amount to instituting the proceeding without reasonable cause, the proceeding itself raised an arguable issue about whether the first respondent was an employee within the Fair Work Act, and any additional costs caused by the abandoned argument were difficult to assess and unlikely to be a substantial part of the first respondent's costs; the general policy under s 570 that costs are not ordinarily awarded therefore prevailed.

Jurisdiction
Australia
Judgment Date
13 July 2023
Procedural Posture
Application for Costs Following Dismissal of an Application for a Prerogative Writ Directed to the Fair Work Commission / Determined on the Papers
Outcome
The first respondent's costs application was dismissed.
Legal Topics
['fair Work Act Costs Limitation' 'unfair Dismissal Proceedings' 'estoppel by Convention Argument Abandoned Before Hearing' 'prerogative Writ Directed to Fair Work Commission']
['employment and Industrial Relations' 'costs'] ['fair Work Act Costs Limitation' 'unfair Dismissal Proceedings' 'estoppel by Convention Argument Abandoned Before Hearing' 'prerogative Writ Directed to Fair Work Commission']

Case Brief

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Procedural Posture

Application for Costs Following Dismissal of an Application for a Prerogative Writ Directed to the Fair Work Commission / Determined on the Papers

Legal Issues

  1. 1 ['Whether the first respondent should be awarded 40% of his costs of the proceedings up until 22 October 2021 under s 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) and s 43 of the Federal Court of Australia Act 1976 (Cth).' 'Whether raising an estoppel by convention argument and later abandoning it shortly before the hearing amounted to instituting proceedings without reasonable cause or an unreasonable act causing costs.']

Ratio Decidendi

The first respondent was not entitled to the costs order sought because raising the estoppel by convention argument and later abandoning it did not amount to instituting the proceeding without reasonable cause, the proceeding itself raised an arguable issue about whether the first respondent was an employee within the Fair Work Act, and any additional costs caused by the abandoned argument were difficult to assess and unlikely to be a substantial part of the first respondent's costs; the general policy under s 570 that costs are not ordinarily awarded therefore prevailed.

Court Disposition

The first respondent's costs application was dismissed.

Orders

  • ["The first respondent's application for 40% of his costs of these proceedings up until 22 October 2021 be dismissed."]