Bashour v Australian and New Zealand Banking Group Limited

In the case of Bashour v Australian and New Zealand Banking Group Limited, the primary issue before the Court was whether the applicant, Ms Bashour, could recover costs incurred before 1 April 2015, following a dispute that spanned both the Federal Court and the Victorian Civil and Administrative Tribunal (VCAT). Ms Bashour sought orders to discontinue the Federal Court proceeding, requesting that the respondents pay her costs from various dates, or alternatively, that there be no order as to costs. The respondents, in turn, applied for an order that Ms Bashour pay their costs for the entire proceeding or from various dates. A secondary issue was whether the Court could permit the use of affidavits filed in the Federal Court proceeding in the VCAT proceeding.

The Court considered whether the respondents’ actions were unreasonable within the meaning of s 570(2)(b) of the Fair Work Act 2009 (Cth), which would allow for the recovery of costs incurred prior to 1 April 2015. The Court found that the respondents’ application to VCAT, though based on a fundamentally misconceived legal basis, did not constitute an unreasonable act or omission. Similarly, the Court determined that Ms Bashour's rejection of Calderbank offers did not constitute unreasonable conduct. Given that neither party's conduct triggered s 570(2), the Court was prohibited from awarding costs under s 570(1). Consequently, Ms Bashour was granted leave to discontinue the proceeding with no order as to costs. Regarding the use of affidavits, while Ms Bashour could use her own affidavits in the VCAT proceeding, the Court found no proper basis for allowing the use of the respondents’ affidavits.

The Court's decision hinged on the interpretation of "unreasonable act or omission" and the applicability of the prohibition on awarding costs prior to 1 April 2015. The Court held that neither party's actions were unreasonable, and therefore, the costs incurred before that date could not be recovered. The Court granted Ms Bashour leave to discontinue the proceeding on the condition that there be no order as to costs. Additionally, the Court permitted the use of certain affidavits in the VCAT proceeding, specifying which ones could be used based on the corrected list provided by the respondents.