McGuirk v University of New South Wales (No. 2)

In the Federal Court, McGuirk, a former employee, sued the University of New South Wales. The dispute centred on the termination of his employment and the circumstances surrounding it. The University applied to have parts of McGuirk's claim struck out, arguing that they were frivolous or vexatious. The Court was required to determine whether the application to strike out was warranted and, if so, to what extent, and what costs order should follow.

The central issue for the Court was whether the University's application to strike out certain claims was justified, and if so, whether it warranted a costs order. The Court found that while some of the claims were indeed frivolous or vexatious, others were not. The Court determined that the application was partially successful. The Court considered the nature of the application, the extent of its success, and the conduct of the parties in arriving at an appropriate costs order.

The Court held that since the University's application to strike out was only partially successful, it was appropriate to make a costs order reflecting this partial success. The Court ordered that the University pay McGuirk’s costs of the application, with an adjustment for the partial success of the application. The Court's reasoning focused on the proportionality of the costs order to the degree of success achieved by the application. The Court emphasised that the costs should reflect the partial nature of the University's success and the need to avoid penalising the applicant unduly for bringing the application in the first place.

The Court ordered the University to pay McGuirk’s costs of the application, with a reduction of 25 per cent to reflect the partial success of the application. This costs order was seen as a fair reflection of the partial success achieved by the University in its application to strike out parts of McGuirk’s claim.