Ali v Racebolt Pty Ltd Trading as Casali's (No.2)

In *Ali v Racebolt Pty Ltd Trading as Casali's (No.2)*, Judge Willis of the Federal Court of Australia considered an application for costs following a dispute between the applicant, Ms. Ali, and the respondent, Racebolt Pty Ltd. While the parties initially disputed which industrial award applied to the applicant's employment, this issue became moot when the respondent conceded at trial that the *Retail Industry Award – State* was the relevant award and the *Clerks – Private Sector Award 2010* was the appropriate modern award.

The primary legal issue before the Court was whether the respondent's lack of awareness of the applicant's legal representation at the time of rejecting a settlement offer should preclude the Court from exercising its discretion to award costs against the respondent. The respondent argued that this lack of awareness meant it could not have understood the implications of rejecting the offer, particularly concerning the applicant's potential legal costs.

Judge Willis rejected the respondent's submission. The Court noted that leave for legal representation had been granted to both parties on 4 September 2014, following an application by the respondent. The applicant had indicated in open court at that time that she would consider obtaining legal representation, a position that remained open to her given the respondent's own legal representation. The Court found no merit in the respondent's claim that it was unaware of the applicant's legal representation until shortly before the trial, nor that the applicant's affidavit filed on 17 February 2015 prevented a realistic assessment of the case at the time of the settlement offer. The Court highlighted the opportunity for frank discussions at a court-ordered mediation on 2 December 2014, which the respondent failed to utilise effectively.

The Court ultimately exercised its discretion to order costs in favour of the applicant.