Burt v University of Sydney (No 2)

In the matter of Burt v University of Sydney (No 2), the Court was called upon to consider an application for costs under section 570 of the Fair Work Act 2009 (Cth). The application was brought by the Commonwealth against Dr Burt, who had instituted proceedings against the University of Sydney. The Commonwealth argued that the applications were instituted without reasonable cause and were maintained unreasonably after a compromise offer was made. The primary legal issues for the Court were whether the circumstances described in sections 570(2)(a) and 570(2)(b) applied, and if so, whether the Court should exercise its discretion to order costs. The Court also needed to consider whether indemnity costs should be awarded and whether the costs should be assessed in a lump sum. The significance of Dr Burt being unrepresented was also a factor in the Court's consideration.

The Court found that the applications were instituted without reasonable cause and that maintaining them after the offer of compromise was also unreasonable. The Court concluded that the circumstances described in sections 570(2)(a) and 570(2)(b) applied. The Court exercised its discretion to order costs, noting that Dr Burt's failure to identify any practical utility in the applications, even if they had succeeded, demonstrated a lack of reasonable cause. The Court rejected the argument that indemnity costs should be awarded, stating that the proceedings were relatively simple and confined. The Court assessed the costs payable by Dr Burt in a lump sum of $26,400, taking into account the unrepresented status of Dr Burt.

The Court's decision was grounded in the well-established principle that the failure to accept a reasonable offer of compromise may constitute an unreasonable act. The Court held that Dr Burt's applications lacked reasonable cause because there was no substantial injustice that would have resulted from a refusal to grant leave to appeal, and the primary judge's interlocutory judgment was not attended by sufficient doubt. The Court also found that an extension of time would not have been granted due to an insufficient explanation for the delay in filing the application out of time. The Court concluded that the lump sum costs order was appropriate and fixed the costs payable by Dr Burt at $26,400.

In summary, the Court ordered that Dr Burt pay the Commonwealth's costs in proceedings NSD 89 of 2025 on a party-and-party basis, fixed the costs payable as a lump sum in the amount of $26,400, and provided that the entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).