El Souki v Macushla Pty Ltd (No.2)

In *El Souki v Macushla Pty Ltd (No.2)*, the applicant sought orders for costs against the respondent following a determination of contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on the applicant's claim that the respondent had failed to make a genuine offer of compromise, thereby justifying an award of costs against them. The matter was heard by Judge C. E. Kirton QC.

The primary legal issue before the court was whether the respondent's conduct in making an offer of compromise, which the applicant argued was inadequate and demonstrated no genuine willingness to settle, warranted an order for costs against the respondent. The applicant contended that the respondent's offer was significantly less than the eventual award and did not meet the requirements of a *Calderbank* offer, while the respondent argued that making any offer, regardless of its amount, demonstrated a reasonable approach and willingness to resolve the proceeding, and that imposing a threshold for such offers would be an unreasonable burden.

The court acknowledged the merit in the respondent's submissions regarding the general principles of costs discretion and the ability to pursue a robust defence. However, the court indicated it was not inclined to engage in a detailed consideration of the submissions. The applicant's argument was framed as the costs discretion being enlivened by the respondent's offer not demonstrating a genuine attempt to compromise, rather than an unreasonable refusal to accept an offer.

Ultimately, the court determined that no order as to costs should be made against the respondent.