FEDERAL COURT OF AUSTRALIA
Edwards v Golden Cockerel Pty Ltd (No 2) [2025] FCA 834
File number(s): QUD 165 of 2022 Judgment of: COLLIER J Date of judgment: 23 July 2025 Catchwords: COSTS – whether s 570(2) Fair Work Act 2009 (Cth) enlivened – earlier judgment finding no case to answer by respondent – whether applicant commenced proceedings unreasonably – whether unreasonable act or omission of applicant – reasonable settlement offers of respondent during course of proceedings – failure of applicant to accept reasonable settlement offers – whether costs should be awarded on indemnity or party-party basis Legislation: Fair Work Act 2009 (Cth) ss 340, 351, 361, 569, 569A 570, (2), (a)
Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules 2011 (Cth) rules 16.21(1)(b), (c), (d), (e), (f)
Cases cited: Burt v University of Sydney (No 2) [2025] FCA 596
Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536
Edwards v Golden Cockerel Pty Ltd [2025] FCA 152
Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
Roy Morgan Research Ltd v Baker [2014] FWCFB 1175
Sperandio v Lynch (No 3) [2007] FCA 1243
SunshineLoans Pty Ltd v Australian Securities and Investments Commission (No 2) [2025] FCAFC 60
Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43
Division: Fair Work Division Registry: Queensland National Practice Area: Employment & Industrial Relations Number of paragraphs: 26 Date of hearing: Determined on the papers Solicitor for the Applicant: NR Barbi Solicitor Counsel for the Respondent: Ms S Moody Solicitor for the Respondent: AiGroup Workplace Lawyers ORDERS
QUD 165 of 2022 BETWEEN: LEAH EDWARDS
Applicant
AND: GOLDEN COCKEREL PTY LTD
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The applicant pay the costs of the respondent of and incidental to the proceeding incurred from and on 17 April 2024, including costs of and incidental to the hearing of 13 June 2024, on an indemnity basis.
2.The applicant pay the costs of the respondent of and incidental to the proceeding incurred prior to 17 April 2024 including:
(a)reserved costs,
(b)costs of and incidental to the applicant’s interlocutory application filed on 1 July 2022 to amend her originating application and statement of claim, and
(c)costs of and incidental to the hearing which was listed for 16 and 17 April 2024, on a party-party basis,
such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
In my earlier judgment in this matter, Edwards v Golden Cockerel Pty Ltd [2025] FCA 152, I found that the respondent, Golden Cockerel Pty Ltd (Golden Cockerel) had no case to answer in respect of the claims of the applicant, Ms Edwards, in respect of ss 340 and 351 of the Fair Work Act 2009 (Cth) (FWA), or found alternatively…
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- Case
- [2025] FCA 834
- Decision Date
CaseChat Overview and Summary
The court found that Ms Edwards' conduct in rejecting Golden Cockerel's settlement offer of 16 April 2024 was unreasonable, as it added to the costs burden in the proceedings. The settlement offer was reasonable in nature, terms, and manner, but Ms Edwards rejected it without sufficient time to respond or obtain legal advice. The court also noted that the offer did not address reinstatement, which was what Ms Edwards sought. The court held that Ms Edwards was liable for indemnity costs from the time she rejected the settlement offer. The court also found that Ms Edwards should pay a proportion of the costs incurred prior to the rejection of the settlement offer on a party-party basis.
In conclusion, the court awarded costs to Golden Cockerel on an indemnity basis from the time Ms Edwards rejected the settlement offer and on a party-party basis for costs incurred prior to that date. The court held that Ms Edwards' unreasonable refusal to accept the settlement offer, coupled with the lack of reasonable terms and manner of the offer, justified the award of indemnity costs. The court also noted that Ms Edwards, as a litigant in receipt of legal advice, should have made a different decision in rejecting the settlement offer. The court's decision highlights the importance of considering settlement offers and the potential consequences of unreasonably rejecting them.
Orders
Orders of the court
1. The applicant pay the costs of the respondent of and incidental to the proceeding incurred from and on 17 April 2024, including costs of and incidental to the hearing of 13 June 2024, on an indemnity basis.
2. The applicant pay the costs of the respondent of and incidental to the proceeding incurred prior to 17 April 2024 including:
(a) reserved costs,
(b) costs of and incidental to the applicant’s interlocutory application filed on 1 July 2022 to amend her originating application and statement of claim, and
(c) costs of and incidental to the hearing which was listed for 16 and 17 April 2024, on a party-party basis,
such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In summary Ms Edwards submitted:·A costs order in the circumstances would be contrary to the protective intent of the FWA.·There is a high threshold prescribed by 570(2)(a) of the FWA before costs are awarded. The words “or vexatiously” elevates the circumstances to that of an exceptional nature.·At the time of commencement there had been no judicial consideration of many of the issues raised in these proceedings. To the extent that Golden Cockerel contended that the proceedings were without merit, this contention was made with the benefit of hindsight, and ignores the position of the law and Ms Edwards at the time of the commencement of the proceedings.·Ms Edwards was a litigant in receipt of the legal advice of a legal practitioner in the face of uncertain law and one of eight aggrieved employees, whose litigation goal was to be reinstated. It cannot be stated that a reasonable person in her position would have made another decision.·The issue of unreasonableness within the meaning of s 570(2) does not turn exclusively on success at trial.·Although Golden Cockerel contended that Ms Edwards’ refusal to accept each offer for settlement were unreasonable acts, Golden Cockerel does not particularise any other acts or omissions as unreasonable.·Golden Cockerel bears the onus of establishing that the offers made were reasonable in their nature, namely on reasonable terms and in a reasonable way (Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221, [166]). However, each of the offers made by Golden Cockerel were made in circumstances which were unreasonable because:·On each occasion Ms Edwards was provided insufficient time to respond (i.e., one day or two days depending on the offer);·Each offer required or may have required legal advice;·The content of the offers was unreasonable because they failed to address reinstatement, which is what Ms Edwards wanted; and·In circumstances where Ms Edwards commenced proceedings as one of multiple applicants, the Court may be minded to order that she pay a proportion of the indemnity costs for which she is otherwise liable.CONSIDERATION Section 570 of the FWA provides:Costs only if proceedings instituted vexatiously etc.(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.(2) The party may be ordered to pay the costs only if:(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or(c) the court is satisfied of both of the following:(i) the party unreasonably refused to participate in a matter before the FWC;(ii) the matter arose from the same facts as the proceedings.