Dahdah v Platinum Distributors Australia Pty Ltd (Costs)

In this case, the appellant, Dahdah, appealed against the decision of the primary judge in Dahdah v Platinum Distributors Australia Pty Ltd. The respondent, Platinum Distributors Australia Pty Ltd, sought costs of the appeal pursuant to s 570 of the Fair Work Act 2009 (Cth). The central issue for the Court was whether the appeal was instituted without reasonable cause or if an unreasonable act or omission of the appellant caused the respondent to incur the costs, thereby enlivening the discretion under s 570(1) of the FW Act to award costs. The appellant argued that the discretion under s 570 of the FW Act to award costs is enlivened only if the Court considers that his appeal was vexatious, and that the respondent had not established that the appeal was vexatious. However, the Court found that contrary to the appellant's submissions, it was not necessary for the Court to be satisfied that the appellant instituted the appeal vexatiously in order to enliven the discretion in s 570(1) of the FW Act.

The Court found that the appeal had no reasonable prospects of success, as the findings in the primary judgment that were challenged on appeal were based on the primary judge's views as to the credit of the appellant, the respondent, and various witnesses. The primary judge did not rely upon the uncorroborated evidence of the appellant or the respondent and made his findings based on the evidence of other witnesses. The Court concluded that the appellant's appeal was instituted without reasonable cause or that an unreasonable act or omission of the appellant caused the respondent to incur the costs, thereby enlivening the discretion under s 570(1) of the FW Act to award costs. Consequently, the Court exercised its discretion in s 570(1) of the FW Act and made an order requiring the appellant to pay the respondent's costs of the appeal, as agreed or taxed.