Gonzalez-Barbosa v Go to Court Franchising Pty Ltd & Anor (No.2)

In *Gonzalez-Barbosa v Go to Court Franchising Pty Ltd & Anor (No.2)*, Justice Kelly of the Federal Circuit Court of Australia considered an application for costs following a summary dismissal application. The applicant sought an order for costs on a pro rata basis, arguing that they had been successful on 75% of the issues. The applicant also contended that the respondents' application for summary dismissal had been instituted vexatiously or without reasonable cause.

The court was required to determine whether the applicant's submission for a pro rata costs order was legally sound, particularly in light of the relevant legislation and rules. Furthermore, the court had to assess whether the respondents' application for summary dismissal met the legal threshold for being considered vexatious or without reasonable cause, applying the established tests for such claims.

Justice Kelly rejected the applicant's reliance on s.79 of the *Federal Circuit Court Act 1999* (Cth) and r.21.10 of the *Federal Circuit Court Rules 2001* (Cth) for a pro rata costs order, finding this reliance misplaced. The court affirmed that the bringing and continuation of proceedings alleging contraventions of the *Fair Work Act* should not be discouraged. However, it also noted that a proceeding may be stigmatised as lacking reasonable cause if, on the applicant's own version of facts, it is clear the proceeding must fail. The court reiterated that absent a specific order for costs made in the exercise of discretion, there is no entitlement to costs, and such discretion involves a broad evaluative judgment of what the justice of the case requires, considering various factors beyond overall success. The applicant's submission that the respondents' application was vexatious was assessed against the test of whether the predominant purpose was to harass, embarrass, or gain a collateral advantage, or whether facts apparent at the time of institution objectively demonstrated no reasonable prospects of success.