McGregor v Admosis Media Group Pty Ltd (No 2)
[2025] FedCFamC2G 1640
•8 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McGregor v Admosis Media Group Pty Ltd (No 2) [2025] FedCFamC2G 1640
File number(s): MLG 591 of 2025 Judgment of: JUDGE O'SULLIVAN Date of judgment: 8 October 2025 Catchwords: FAIR WORK – costs application – application under s 570(2)(b) Fair Work Act 2009 (Cth) – whether unreasonable act or omission – no order as to costs Legislation: Fair Work Act 2009 (Cth) ss 570(1), 570(2) Cases cited: Australian Securities and InvestmentCommission v Mitchell (No 4) [2021] FCA 1387
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
McGregor v Admosis Media Group Pty Ltd [2025] FedCFamC2G 1481
Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119
Ryan v Primesafe [2015] FCA 8
Stratton Finance Pty Ltd v Webb [2014] FCAFC 110
Torrens University Australia Limited v Fair Work Ombudsman (No 2) [2025] FCA 1120
Tuckerv Victoria (No 2) [2021] VSCA 182
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 23 September 2025 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Maddocks Lawyers Solicitor for the Respondent: Marks Pritchard ORDERS
MLG 591 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROBYN MCGREGOR
Applicant
AND: ADMOSIS MEDIA GROUP PTY LTD
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
8 OCTOBER 2025
THE COURT ORDERS THAT:
1.There be no orders as to costs of the application in a proceeding filed 24 July 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SULLIVAN
On 23 January 2025, Robyn McGregor, (the applicant) commenced proceedings against Admosis Media Group Pty Ltd (the respondent) in this Court under the Fair Work Act 2009 (Cth) (FW Act).
On 10 September 2025, and for the reasons set out in McGregor v Admosis Media Group Pty Ltd [2025] FedCFamC2G 1481 (the transfer decision) the Court made the following orders:
1.Pursuant to section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), these proceedings be transferred to the Melbourne Registry of the Federal Court of Australia to be listed on a date to be advised.
2.The respondent file and serve submissions of no more than 4 pages within 7 days in support of any application for costs of the application in a proceeding filed 24 July 2025.
3.The applicant file and serve submissions in reply of no more than 4 pages, 7 days thereafter.
4.The respondent’s application for costs be determined on the papers unless required otherwise in submissions.
As contemplated by those orders, each of the parties filed written submissions (though the respondent didn’t adhere to the page limit) addressing the respondent’s application for its costs of the transfer application, which the applicant opposed. As there was no indication otherwise, that application has been considered on the papers. These reasons (which should be read in conjunction with the transfer decision) concern why there will be no order as to costs.
Statutory provisions and principles
The respondent’s costs application falls to be determined by reference to the provisions of s 570 of the FW Act, which relevantly provides:
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction 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 s.569 or 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…
Section 570(1) of the FW Act provides that a party to a proceeding in a court arising under the FW Act may only be ordered to pay costs incurred by another party in limited and specified circumstances.
In Ryan v Primesafe [2015] FCA 8, Justice Mortimer (as Her Honour then was) considered an application for costs arising from proceedings under the FW Act. In relation to the provisions in s 570 of the FW Act, her Honour observed:
64.I accept the general import of the authorities relied on by the applicant and Mr McDonald in their written submissions about the significance of the threshold set by s570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s570, there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s570(2)should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd[2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2)(2012) 203 FCR 430; [2012] FCAFC 103 at [3]- [4] per Jessup and Tracey JJ.
65.None of those propositions deny the Court’s ability to find that one or both of the two preconditions expressed in ss570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the Court responsibly.
More recently, in Torrens University Australia Limited v Fair Work Ombudsman(No 2) [2025] FCA 1120 Justice Halley helpfully summarised the principles associated with s 570(2)(b) (which was the provision relied on by the respondent) as follows:
8. First, the occasions on which costs will be awarded under s 570 of the FW Act are likely to be exceptional: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 at [8] (Bromberg J).
9.Second, the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 at [26] (Katzmann J); Tucker v Victoria (No 2) [2021] VSCA 182 at [32(h)] (Kyrou, McLeish and Sifris JJA).
10.Third, the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 at [8] (Bromberg J); Tucker at [32(h)].
11.Fourth, the term “unreasonableness” is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the FW Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7].
12.Fifth, unreasonableness is to be determined objectively, it is a question of impression and degree, and it is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v R (No 2) [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ).
13.Sixth, it is well settled that the limitation imposed by s 570 of the FW Act seeks to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims: Mutch at [7] citing Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J); Comcare (No 2) at [8] (Bromberg J)…
Finally, even where the statutory preconditions in s 570 of FW Act have been satisfied costs do not automatically follow (see Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119 at [208]).
Submissions of the parties
As contemplated in the above orders, the respondent filed submissions on 17 September 2025.[1] Putting to one side the unnecessary formalities and background contained therein, the respondent submitted that:
(a)at a Court mention, the parties had been made aware of cases that were directly applicable to the circumstances of the substantive case;
(b)the applicant had agreed the issues raised by the respondent were of general importance;
(c)the respondent had “alerted” the applicant to the exact arguments it would make in support of the transfer application;
(d)(given the above) the applicant had been “invited” to agree to a joint application seeking transfer of the substantive proceedings;
(e)the applicant had been told the respondent would rely on its correspondence on the question of costs if the transfer application was successful; and
(f)what was said to be the applicant’s “strident contest of the (respondent’s) transfer application was an unreasonable act”.
[1] The respondent also relied on the affidavit of Emma Pritchard filed 17 September 2025 which inter alia annexed correspondence between the parties’ solicitors (for e.g. Annexures EP-4 & EP-5).
The applicant, in submissions filed 23 September 2025 opposing the respondent’s costs application noted inter alia, that the respondent’s costs application was “misconceived” as:
(a)the opposition to the transfer application was not incompetent or hopeless;
(b)the power to order a transfer is discretionary in nature and the Court is required to have regard to certain mandatory considerations including the wishes of the parties;
(c)the Court is not bound to exercise its discretion in the same way as in other cases;
(d)the correspondence the respondent relied on did not amount to an offer of compromise;
(e)it was not apparent what costs the applicant caused the respondent to incur as an order for transfer could not be made by consent of the parties; and
(f)the respondent was required to satisfy the Court that the transfer was warranted, regardless of the applicant’s position.[2]
[2] See para 8-16 of submissions filed 23 September 2025.
Consideration
For the purposes of the respondent’s costs application, the relevant part of the particular statutory provisions is s 570(2)(b) and whether I am satisfied that the respondent incurred costs as a result of any unreasonable act or omission of the applicant.
The onus is squarely on the respondent to satisfy the Court that the applicant acted unreasonably.
Unreasonableness is a question of impression and degree, to be assessed by reference to the particular circumstances of a given case.[3] Although a failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2), much turns on the form and content of the offer and the conduct of the parties.
[3] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, 582 [28] (Tamberlin, Gyles and Gilmour JJ).
The determination of whether the applicant’s rejection is an unreasonable act requires consideration of numerous factors (see for e.g. Australian Securities and InvestmentCommission v Mitchell (No 4) [2021] FCA 1387 per Beach J at [33]). These factors include, among other things, the nature of the claim, the nature of the response, the evidence and documents filed in the proceeding and the information available to the parties at the time the offer is made, a realistic assessment of the parties’ cases, the stage of the proceeding at which the offer was made, the window for its consideration and acceptance, the financial position of the parties and the extent of the compromise and the consequences of non-acceptance. To those matters, I would add the statutory framework within which the Court will ultimately hear and determine the application, including the presumption against awarding costs.
Section 570(2)(b) has been found not to have been enlivened in circumstances where a jurisdictional matter that was contested, but was ultimately unsuccessful, raised novel and difficult questions and where there was a refusal to engage in mediation or accept settlement offers.[4]
[4] Tucker v Victoria (No 2) [2021] VSCA 182 at [34].
In relation to the ‘offer (or offers) of compromise’, the respondent’s own (chimera-like) submissions acknowledged “the exact words of offer and compromise were not used”. Moreover, in any event, the authorities have counselled that the relative reasonableness of an offer may be qualitatively different when considered in the context of a no-costs regime.[5]
[5] Stratton Finance Pty Ltd v Webb [2014] FCAFC 110 at [80].
I accept the submission of the applicant that a decision on the question of whether the substantive proceedings should have been transferred was quintessentially one for the Court (regardless of whether the parties agreed or otherwise). The Court had to be satisfied any transfer was in the interests of the administration of justice. The applicant’s submissions also correctly identify the issue that the respondent would have been required to make submissions on the issue (regardless of whether the parties agreed or otherwise). Given the respondent’s concession regarding the terms of the correspondence between the parties, I can’t be satisfied the applicant’s failure to respond or opposition to the transfer application was objectively unreasonable.
CONCLUSION
For those reasons, I am not satisfied that the applicant’s conduct which the respondent complained of, amounted to an unreasonable act or omission that caused the respondent to incur costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 8 October 2025
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