Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091

Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091

The proceeding as a whole was not instituted vexatiously or without reasonable cause because at least the second complaint had a sufficient basis to engage the merits and the applicant had the benefit of s 361 of the Fair Work Act 2009 (Cth). The applicant's refusal of monetary settlement offers was not unreasonable...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 October 2014
Procedural Posture
Application for Costs in a Fair Work Act Proceeding Alleging Contravention of S 340(1)(a)(ii) of the Fair Work Act 2009 (cth) / Post Judgment Costs Application by the Successful Respondent
Outcome
Costs application allowed in part; limited costs ordered in favour of the respondent on an indemnity basis, with no other order as to costs except previous costs orders.
Legal Topics
['fair Work Act Costs Limitation' 'general Protections/adverse Action' 'proceeding Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'indemnity Costs' 'settlement Offers' 'admissibility of Evidence' 'irregularly Obtained Private Text Messages']
['employment Law' 'practice and Procedure' 'costs' 'evidence'] ['fair Work Act Costs Limitation' 'general Protections/adverse Action' 'proceeding Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'indemnity Costs' 'settlement Offers' 'admissibility of Evidence' 'irregularly Obtained Private Text Messages']

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Procedural Posture

Application for Costs in a Fair Work Act Proceeding Alleging Contravention of S 340(1)(a)(ii) of the Fair Work Act 2009 (cth) / Post Judgment Costs Application by the Successful Respondent

Legal Issues

  1. 1 ['Whether the applicant instituted the proceeding vexatiously within the meaning of s 570 of the Fair Work Act 2009 (Cth).' 'Whether the applicant instituted the proceeding without reasonable cause within the meaning of s 570 of the Fair Work Act 2009 (Cth).' "Whether the applicant's rejection of settlement offers was an unreasonable act causing the respondent to incur costs." 'Whether the applicant acted unreasonably by advancing serious allegations of impropriety against Mr McIndoe without admissible evidence or a genuine or reasonable basis.' 'Whether the applicant acted unreasonably by attempting to adduce private text messages extracted from a mobile telephone.' 'Whether any costs awarded should be taxed on an indemnity basis.']

Ratio Decidendi

The proceeding as a whole was not instituted vexatiously or without reasonable cause because at least the second complaint had a sufficient basis to engage the merits and the applicant had the benefit of s 361 of the Fair Work Act 2009 (Cth). The applicant's refusal of monetary settlement offers was not unreasonable given that reinstatement was her primary remedy. However, the applicant acted unreasonably by advancing certain serious unsupported allegations against Mr McIndoe and by attempting to adduce private text messages obtained and used in irregular circumstances, and those acts caused the respondent to incur costs. Those limited costs were therefore recoverable under s 570(2)(b)...

Court Disposition

Costs application allowed in part; limited costs ordered in favour of the respondent on an indemnity basis, with no other order as to costs except previous costs orders.

Orders

  • ["The applicant pay the respondent's costs of defending the allegations referred to in items (b)(v), (b)(vi), (d) and (e) of the list in paragraph 424 of the Court's reasons for judgment published on 25 March 2014: [2014] FCA 271." "The applicant pay the respondent's costs of and incidental to the matter disposed of...