Pettit v Evolution Mining Ltd [2016] FCA 1304

Pettit v Evolution Mining Ltd [2016] FCA 1304

The Court was not prepared to conclude that the proceeding was doomed when instituted, so costs were not justified on that basis. However, after the mediation on 29 January 2016 failed, the applicant sought transfer to the Federal Circuit Court of Australia, then failed to file and serve witness statements as ordered, and ultimately gave notice of withdrawal. That whole course of conduct was an unreasonable act causing the respondent to incur costs, justifying an order under s 570(2)(b) that the applicant pay the respondent's costs incurred after 29 January 2016, including costs of the costs submissions.

Jurisdiction
Australia
Judgment Date
03 November 2016
Procedural Posture
Application for Costs Under S 570 of the Fair Work Act 2009 (cth) Following Withdrawal of an Originating Application Alleging Breach of Contract and Contravention of S 351 of the Fair Work Act 2009 (cth). / Costs Determined on the Papers After Consent Orders Withdrawing the Originating Application.
Outcome
Respondent's costs application allowed in part; applicant ordered to pay respondent's costs incurred after 29 January 2016.
Legal Topics
['fair Work Act Costs' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'general Protections' 'breach of Employment Contract' 'withdrawal of Originating Application']
['employment and Industrial Relations' 'costs'] ['fair Work Act Costs' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'general Protections' 'breach of Employment Contract' 'withdrawal of Originating Application']

Case Brief

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Procedural Posture

Application for Costs Under S 570 of the Fair Work Act 2009 (cth) Following Withdrawal of an Originating Application Alleging Breach of Contract and Contravention of S 351 of the Fair Work Act 2009 (cth). / Costs Determined on the Papers After Consent Orders Withdrawing the Originating Application.

Legal Issues

  1. 1 ['Whether the applicant instituted the proceedings vexatiously or without reasonable cause within s 570(2)(a) of the Fair Work Act 2009 (Cth).' "Whether the applicant's unreasonable act or omission caused the respondent to incur costs within s 570(2)(b) of the Fair Work Act 2009 (Cth)." 'Whether, if the jurisdiction to award costs was enlivened, the Court should exercise its discretion to order costs.']

Ratio Decidendi

The Court was not prepared to conclude that the proceeding was doomed when instituted, so costs were not justified on that basis. However, after the mediation on 29 January 2016 failed, the applicant sought transfer to the Federal Circuit Court of Australia, then failed to file and serve witness statements as ordered, and ultimately gave notice of withdrawal. That whole course of conduct was an unreasonable act causing the respondent to incur costs, justifying an order under s 570(2)(b) that the applicant pay the respondent's costs incurred after 29 January 2016, including costs of the costs submissions.

Court Disposition

Respondent's costs application allowed in part; applicant ordered to pay respondent's costs incurred after 29 January 2016.

Orders

  • ['The applicant do pay the costs of the respondent incurred after 29 January 2016, to be taxed, if not agreed, including the preparation of the submissions in relation to this costs question.']