Lim v Flinders University of South Australia (No 2) [2023] FCA 147

Lim v Flinders University of South Australia (No 2) [2023] FCA 147

Although the extension of time application lacked reasonable prospects of success from the outset, the respondents were entitled to costs only from 19 October 2021 because, by then, Dr Lim had been fairly put on notice of the respondents' position about the merits, had received a valuable settlement offer, reneged on the agreement to settle, and unreasonably persisted with the unmeritorious application, thereby causing the respondents to incur costs within s 570(2)(b) of the Fair Work Act 2009 (Cth).

Jurisdiction
Australia
Judgment Date
02 March 2023
Procedural Posture
Application for Costs Under S 570 of the Fair Work Act 2009 (cth) in a Matter Arising Under the Act / Determined on the Papers After Dismissal of the Applicant's Application for an Extension of Time to Appeal
Outcome
The respondents' application for costs was granted in part; Dr Lim was ordered to pay the respondents' costs incurred from 19 October 2021.
Legal Topics
['costs Under S 570 of the Fair Work Act 2009 (cth)' 'self Represented Litigant' 'settlement Agreement' 'extension of Time to Appeal' 'no Reasonable Prospects of Success' 'unreasonable Act or Omission Causing Costs']
['employment and Industrial Relations' 'costs' 'fair Work'] ['costs Under S 570 of the Fair Work Act 2009 (cth)' 'self Represented Litigant' 'settlement Agreement' 'extension of Time to Appeal' 'no Reasonable Prospects of Success' 'unreasonable Act or Omission Causing Costs']

Case Brief

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Procedural Posture

Application for Costs Under S 570 of the Fair Work Act 2009 (cth) in a Matter Arising Under the Act / Determined on the Papers After Dismissal of the Applicant's Application for an Extension of Time to Appeal

Legal Issues

  1. 1 ["Whether the applicant should be ordered to pay the respondents' costs under s 570(2)(a) of the Fair Work Act 2009 (Cth) on the basis that the extension of time application was instituted vexatiously or without reasonable cause." "Whether the applicant should be ordered to pay the respondents' costs under s 570(2)(b) of the Fair Work Act 2009 (Cth) because an unreasonable act or omission caused the respondents to incur costs." "Whether the applicant acted unreasonably by reneging on the 19 October 2021 settlement agreement and persisting with an unmeritorious application after notice of the respondents' position."]

Ratio Decidendi

Although the extension of time application lacked reasonable prospects of success from the outset, the respondents were entitled to costs only from 19 October 2021 because, by then, Dr Lim had been fairly put on notice of the respondents' position about the merits, had received a valuable settlement offer, reneged on the agreement to settle, and unreasonably persisted with the unmeritorious application, thereby causing the respondents to incur costs within s 570(2)(b) of the Fair Work Act 2009 (Cth).

Court Disposition

The respondents' application for costs was granted in part; Dr Lim was ordered to pay the respondents' costs incurred from 19 October 2021.

Orders

  • ["The applicant is to pay the respondents' costs incurred from 19 October 2021, such costs to be fixed on a lump sum basis by a Registrar of the Court in the absence of agreement as to quantum."]