Barkhazen v Conair Australia Pty Ltd (No 2) [2018] FCA 992

Barkhazen v Conair Australia Pty Ltd (No 2) [2018] FCA 992

The proceeding was instituted without reasonable cause because the absence of merit should have been apparent when it was commenced: the review grounds were convoluted, repetitive and confused, mostly attacked the Commissioner's decision rather than the Full Bench decision under review, and asserted no error in the Full Bench decision amenable to judicial review. That enlivened s 570(2)(a) and justified indemnity costs against the applicant from the outset. Personal costs orders against the solicitor and counsel were refused because, despite force in the criticisms of their conduct, the Court could not conclude with sufficient certainty that responsibility for the decisions about the...

Jurisdiction
Australia
Judgment Date
29 June 2018
Procedural Posture
Industrial Law Costs Application Following Summary Dismissal of an Application for Judicial Review / Costs Determined on the Papers After Summary Dismissal
Outcome
The first respondent obtained indemnity costs fixed at $71,000 against the applicant; the application for personal costs orders against the applicant's legal representatives was not granted.
Legal Topics
['fair Work Act Costs Limitation' 'proceedings Instituted Without Reasonable Cause' 'indemnity Costs' 'personal Costs Orders Against Legal Representatives' 'lump Sum Costs']
['industrial Law' 'employment and Industrial Relations' 'costs' 'judicial Review'] ['fair Work Act Costs Limitation' 'proceedings Instituted Without Reasonable Cause' 'indemnity Costs' 'personal Costs Orders Against Legal Representatives' 'lump Sum Costs']

Case Brief

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Procedural Posture

Industrial Law Costs Application Following Summary Dismissal of an Application for Judicial Review / Costs Determined on the Papers After Summary Dismissal

Legal Issues

  1. 1 ['Whether the applicant instituted the judicial review proceeding without reasonable cause within s 570(2)(a) of the Fair Work Act 2009 (Cth).' 'Whether the first respondent should receive indemnity costs fixed as a lump sum.' "Whether costs should be ordered personally against the applicant's solicitor and counsel." 'What amount of lump sum costs should be fixed.']

Ratio Decidendi

The proceeding was instituted without reasonable cause because the absence of merit should have been apparent when it was commenced: the review grounds were convoluted, repetitive and confused, mostly attacked the Commissioner's decision rather than the Full Bench decision under review, and asserted no error in the Full Bench decision amenable to judicial review. That enlivened s 570(2)(a) and justified indemnity costs against the applicant from the outset. Personal costs orders against the solicitor and counsel were refused because, despite force in the criticisms of their conduct, the Court could not conclude with sufficient certainty that responsibility for the decisions about the...

Court Disposition

The first respondent obtained indemnity costs fixed at $71,000 against the applicant; the application for personal costs orders against the applicant's legal representatives was not granted.

Orders

  • ["The first respondent's costs of and incidental to these proceedings, including the costs ordered to be paid on 8 June 2017, be paid by the applicant on an indemnity basis, fixed in the sum of $71,000."]