Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No 2)

The applicant, Craig Richard Cross, commenced proceedings against Harbour City Ferries Pty Ltd, Sydney Ferries Corporation, and Craig Rieck, alleging contraventions of general protection provisions under the *Fair Work Act 2009* (Cth) and seeking compensation. Following a hearing, the substantive judgment dismissed all of the applicant's claims. The court then heard submissions on the question of costs.

The primary legal issues before the court were whether it possessed the power to award costs in these proceedings, and if so, under what statutory provisions and subject to what conditions. Specifically, the court considered the interplay between section 570 of the *Fair Work Act 2009* (Cth) and section 79 of the *Federal Circuit Court of Australia Act 1999* (Cth), and whether the latter's exclusion of costs in matters arising under the *Fair Work Act 2009* (Cth) prevented any award of costs. The respondents sought costs on an indemnity basis from specific dates, arguing the proceedings were instituted without reasonable cause and that the applicant unreasonably rejected settlement offers.

The court determined that its power to award costs in these proceedings did not arise from section 79 of the *Federal Circuit Court of Australia Act 1999* (Cth) due to the express exclusion in section 79(1) for matters arising under the *Fair Work Act 2009* (Cth). Instead, the court found its power to award costs was derived from section 570 of the *Fair Work Act 2009* (Cth), which permits costs orders only if the proceedings were instituted vexatiously or without reasonable cause, or if an unreasonable act or omission by a party caused the other party to incur costs. The court accepted the respondents' submissions that the applicant's conduct met these criteria, justifying an order for costs.

The court ordered that the applicant pay the costs of the first and third respondents on a party/party basis until 17 June 2016, and thereafter on an indemnity basis. Similarly, the applicant was ordered to pay the costs of the second respondent on a party/party basis until 13 February 2017, and thereafter on an indemnity basis. These costs were to be agreed between the parties or taxed in accordance with the *Federal Court Rules 2011* (Cth).