Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 3) [2021] FCA 1117

Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 3) [2021] FCA 1117

The first respondent did not establish that the judicial review proceeding or interlocutory application was objectively instituted without reasonable cause. Its argument focused on the fact that the applicant's arguments were rejected in the final judgment, rather than addressing the prospects at the time the proceeding was instituted. Although the applicant's construction of s 394(3) was not reasonably arguable and some submissions were difficult to understand as jurisdictional error, rejection of the grounds was not itself sufficient to justify costs under s 570. As to the interlocutory application, persistence after the material had been retained was plainly unreasonable because the...

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Application for Costs Under S 570 of the Fair Work Act 2009 (cth) / Determined on the Papers After Interlocutory and Final Judgments Dismissing the Applicant's Applications
Outcome
The first respondent's application for costs was dismissed.
Legal Topics
['fair Work Act Costs Limitation' 'proceedings Instituted Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'interlocutory Application Costs' 'unfair Dismissal Extension of Time Judicial Review']
['employment and Industrial Relations' 'costs' 'judicial Review'] ['fair Work Act Costs Limitation' 'proceedings Instituted Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'interlocutory Application Costs' 'unfair Dismissal Extension of Time Judicial Review']

Case Brief

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Procedural Posture

Application for Costs Under S 570 of the Fair Work Act 2009 (cth) / Determined on the Papers After Interlocutory and Final Judgments Dismissing the Applicant's Applications

Legal Issues

  1. 1 ['Whether the judicial review proceedings, viewed objectively at the time they were instituted, were instituted without reasonable cause under s 570(2)(a) of the Fair Work Act 2009 (Cth).' 'Whether the interlocutory application was instituted without reasonable cause.' 'Whether persisting with the interlocutory application after the first respondent retained the material sought was an unreasonable act within s 570(2)(b) of the Fair Work Act 2009 (Cth).' 'Whether the first respondent should receive a lump sum costs order of $25,728.38.']

Ratio Decidendi

The first respondent did not establish that the judicial review proceeding or interlocutory application was objectively instituted without reasonable cause. Its argument focused on the fact that the applicant's arguments were rejected in the final judgment, rather than addressing the prospects at the time the proceeding was instituted. Although the applicant's construction of s 394(3) was not reasonably arguable and some submissions were difficult to understand as jurisdictional error, rejection of the grounds was not itself sufficient to justify costs under s 570. As to the interlocutory application, persistence after the material had been retained was plainly unreasonable because the...

Court Disposition

The first respondent's application for costs was dismissed.

Orders

  • ["The first respondent's application for costs is dismissed."]