Clark v Ventura Transit Pty Ltd (No.2)

In *Clark v Ventura Transit Pty Ltd (No.2)*, the Federal Circuit Court of Australia considered an application by the Respondent, Ventura Transit Pty Ltd, for costs against the Applicant, Gregory Paul Clark, following the dismissal of Mr Clark's substantive claim under the *Fair Work Act 2009* (Cth). The Respondent sought costs pursuant to section 570(2)(b) of the *Fair Work Act*, which allows for costs orders only if an unreasonable act or omission by a party caused the other party to incur costs.

The legal issues before the Court were whether the Applicant's conduct constituted an "unreasonable act or omission" that caused the Respondent to incur costs, thereby justifying a costs order under section 570(2)(b) of the *Fair Work Act*. This required the Court to assess the reasonableness of the Applicant's refusal to accept various settlement offers and his conduct regarding a proposed amendment to his claim. The Court was guided by principles established in cases such as *Construction, Forestry, Mining and Energy Union v Clarke* and *Melbourne Stadiums Ltd v Sautner*, which emphasise that costs awards under section 570 are exceptional and require a high threshold of unreasonableness, not merely inefficient litigation or a misguided approach.

Judge Jones found that the Respondent had not satisfied the criteria for a costs order under section 570(2)(b). The Court reasoned that the initial offer made at the Fair Work Commission was on a purely commercial basis, unrelated to the merits of the case. The First Calderbank Offer was made too early in the proceedings for the Applicant to adequately assess the evidence, and its terms did not address costs incurred to date. The refusal to attend mediation was considered neutral, as participation requires mutual consent. The Second Offer, a "walk away" proposal, was not deemed unreasonable to reject given the Respondent's own filing of further affidavits that suggested their initial evidence might have been insufficient. Finally, the Applicant's request to amend his claim, which led to the vacating of a trial date, was not considered an unreasonable act, particularly as leave to amend was granted and the Applicant's legal representation had recently changed. Consequently, the Court dismissed the Respondent's application for costs.