QNurses First Inc v Monash Health (No 2) [2022] FCA 277

QNurses First Inc v Monash Health (No 2) [2022] FCA 277

The proceeding was not shown to have been instituted without reasonable cause because, at commencement, it was not doomed to fail and there was material supporting a contestable contention that relevant employees sought consultation about the vaccination directive. The later filing of Mr Stripp's affidavit could not affect s 570(2)(a), which looks to commencement. The continued pursuit of interlocutory relief after that affidavit was not shown to be unreasonable within s 570(2)(b), particularly because the interlocutory ruling did not determine the trial issues and discontinuance was promptly sought after the proceeding lost utility. Monash Health therefore failed to establish the...

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Representative Proceeding Under R 9.21 of the Federal Court Rules 2011 (cth) Alleging Adverse Action Under the Fair Work Act 2009 (cth) / Application for Leave to Discontinue the Proceeding and Respondent's Application for Costs, Determined on the Papers
Outcome
Leave to discontinue granted; no order as to costs.
Legal Topics
['section 570 of the Fair Work Act 2009 (cth)' 'discontinuance of Representative Proceeding' 'adverse Action' 'general Protections' 'covid 19 Mandatory Vaccination Directions' 'interlocutory Relief']
['costs' 'industrial Law' 'employment and Industrial Relations'] ['section 570 of the Fair Work Act 2009 (cth)' 'discontinuance of Representative Proceeding' 'adverse Action' 'general Protections' 'covid 19 Mandatory Vaccination Directions' 'interlocutory Relief']

Case Brief

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Procedural Posture

Representative Proceeding Under R 9.21 of the Federal Court Rules 2011 (cth) Alleging Adverse Action Under the Fair Work Act 2009 (cth) / Application for Leave to Discontinue the Proceeding and Respondent's Application for Costs, Determined on the Papers

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to discontinue the representative proceeding.' 'Whether the proceeding was instituted without reasonable cause within s 570(2)(a) of the Fair Work Act 2009 (Cth).' 'Whether the continued pursuit of interlocutory relief after 1 November 2021 was an unreasonable act causing Monash Health to incur costs within s 570(2)(b) of the Fair Work Act 2009 (Cth).' 'Whether the Court should exercise its discretion to award costs.']

Ratio Decidendi

The proceeding was not shown to have been instituted without reasonable cause because, at commencement, it was not doomed to fail and there was material supporting a contestable contention that relevant employees sought consultation about the vaccination directive. The later filing of Mr Stripp's affidavit could not affect s 570(2)(a), which looks to commencement. The continued pursuit of interlocutory relief after that affidavit was not shown to be unreasonable within s 570(2)(b), particularly because the interlocutory ruling did not determine the trial issues and discontinuance was promptly sought after the proceeding lost utility. Monash Health therefore failed to establish the...

Court Disposition

Leave to discontinue granted; no order as to costs.

Orders

  • ['The applicants be granted leave to discontinue the proceeding.' 'There be no order as to costs.']