Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481

Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481

The judicial review proceeding was instituted without reasonable cause because, to the extent its basis could be comprehended, it was misconceived or without foundation: the originating application identified no coherent grounds of judicial review and the applicant challenged decisions based on the duration of his employment although, on his own evidence, he had less than one year of continuous employment with Que 5 Pty Ltd, a small business employer. The precondition in s 570(2)(a) was established, no discretionary reason against costs was advanced, and a fair lump sum for costs was $8,000 inclusive of counsel fees and GST.

Jurisdiction
Australia
Judgment Date
28 November 2023
Procedural Posture
Application for Costs Pursuant to S 570 of the Fair Work Act 2009 (cth) After Dismissal of Judicial Review Proceedings Concerning Unfair Dismissal Decisions of the Fair Work Commission / Determined on the Papers
Outcome
Costs awarded to the first respondent against the applicant.
Legal Topics
['fair Work Act Costs Orders' 'proceedings Instituted Without Reasonable Cause' 'unfair Dismissal' 'small Business Employer' 'minimum Employment Period' 'lump Sum Costs']
['employment and Industrial Relations' 'costs' 'judicial Review'] ['fair Work Act Costs Orders' 'proceedings Instituted Without Reasonable Cause' 'unfair Dismissal' 'small Business Employer' 'minimum Employment Period' 'lump Sum Costs']

Case Brief

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Procedural Posture

Application for Costs Pursuant to S 570 of the Fair Work Act 2009 (cth) After Dismissal of Judicial Review Proceedings Concerning Unfair Dismissal Decisions of the Fair Work Commission / Determined on the Papers

Legal Issues

  1. 1 ['Whether the judicial review proceeding was a matter arising under the Fair Work Act 2009 (Cth) for the purposes of s 570' 'Whether the applicant instituted the proceeding without reasonable cause within s 570(2)(a) of the Fair Work Act 2009 (Cth)' 'Whether the Court should exercise its discretion to award costs against a self-represented applicant' 'What amount of costs should be fixed as a lump sum']

Ratio Decidendi

The judicial review proceeding was instituted without reasonable cause because, to the extent its basis could be comprehended, it was misconceived or without foundation: the originating application identified no coherent grounds of judicial review and the applicant challenged decisions based on the duration of his employment although, on his own evidence, he had less than one year of continuous employment with Que 5 Pty Ltd, a small business employer. The precondition in s 570(2)(a) was established, no discretionary reason against costs was advanced, and a fair lump sum for costs was $8,000 inclusive of counsel fees and GST.

Court Disposition

Costs awarded to the first respondent against the applicant.

Orders

  • ["The applicant must pay the first respondent's costs of the proceeding, fixed in the sum of $8,000."]