Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20

Federal Court of Australia

Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20 File numbers: TAD 28 of 2017 TAD 32 of 2017

Judgment of: SNADEN J

Date of judgment: 25 January 2023

Catchwords: COSTS – applications for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) ("FW Act") – where primary judgment dismissed applications made under ss 50, 323, 340 and 355 of the FW Act – whether proceedings instituted vexatiously or without reasonable cause – whether applicants committed an unreasonable act or acts occasioning costs – where applicants filed irrelevant evidential material exceeding 1,000 pages – where applicants filed an excessive number of notices to admit – whether rejection of offer of compromise was unreasonable – whether conduct at trial was unreasonable – orders for costs made

Legislation: Fair Work Act 2009 (Cth) ss, 340, 341, 355, 361, 570 Federal Court of Australia Act 1976 (Cth) s 43

Cases cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Australian Workers' Union v Leighton Contractors Pty Ltd (2013) 232 FCR 428 BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hartnett Legal Services Pty Ltd v Ballantyne (No 2) [2015] FCA 1027 Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 Nilsen v Loyal Orange Trust (1997) 76 IR 180 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53 Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 Williams v Spautz (1992) 174 CLR 509