FEDERAL COURT OF AUSTRALIA
McLoughlin v Randstad Pty Ltd (No 2) [2021] FCAFC 177
Appeal from: McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223 File number: NSD 231 of 2021 Judgment of: WHITE, O'CALLAGHAN AND COLVIN JJ Date of judgment: 1 October 2021 Catchwords: COSTS - determination of costs in appeal where appeal allowed and matter remitted for re-hearing - whether costs discretion enlivened for Court to make costs order against respondents under Fair Work Act 2009 (Cth) - whether defence of appeal by respondents unreasonable - whether costs certificate should be granted to appellant and second and third respondents pursuant to s 8 of Federal Proceedings (Costs) Act 1981 (Cth) - no costs order made against respondents - appellant granted costs certificate Legislation: Fair Work Act 2009 (Cth) s 570
Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 14
Cases cited: Australian Workers' Union v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23; (2013) 232 FCR 428
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 15 Date of last submissions: 2 September 2021 (Appellant)
9 September 2021 (Respondents)Date of hearing: Determined on the papers Counsel for the Appellant: Ms K Edwards and Mr S McIntosh with Ms R Wikramanayake Solicitor for the Appellant: Australian Centre For Disability Law Counsel for the Respondents: Mr M Seck with Mr S Trew and Ms A Mills Solicitor for the Respondents: Holding Redlich ORDERS
NSD 231 of 2021 BETWEEN: BEVERLY MCLOUGHLIN
Appellant
AND: RANDSTAD PTY LTD (ABN 28 080 275 378)
First Respondent
BROOKE O'KEEFE
Third Respondent
NICK PESCH
Fourth Respondent
ORDER MADE BY:
WHITE, O'CALLAGHAN AND COLVIN JJ
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.It is hereby certified for the purposes of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under the Act to the appellant in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial granted by this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Ms McLoughlin brought proceedings in what was then the Federal Circuit Court. She claimed that she was dismissed from her employment by Randstad Pty Ltd in contravention of the provisions of the Fair Work Act 2009 (Cth). Claims were also brought against employees of Randstad said to have been involved in those alleged contraventions. After a three day hearing, her case was dismissed. Ms McLoughlin brought an appeal in this Court. On 26 August 2021, we allowed the appeal and remitted the matter for re-hearing before a different Circuit Court judge. We made orders for the parties to provide written submissions as to costs, with the question of costs to…
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- Case
- [2021] FCAFC 177
- Decision Date
CaseChat Overview and Summary
The Full Court found that the appeal was allowed, and the matter was remitted for re-hearing. The Court held that while the discretion to award costs under the Fair Work Act was indeed enlivened, it did not consider it appropriate to make a costs order against the respondents in this particular case. The Court also determined that the respondents' defence of the appeal, while unsuccessful, was not unreasonable enough to warrant a costs order against them. Consequently, the Court decided not to grant a costs certificate to the appellant and the second and third respondents under the Federal Proceedings (Costs) Act.
However, the Court did certify under s 8 of the Federal Proceedings (Costs) Act that it would be appropriate for the Attorney-General to authorise a payment to the appellant in respect of the costs incurred by that party in relation to the new trial granted by the Court. This certification allows for the possibility of reimbursement of costs to the appellant from the Commonwealth, subject to the Attorney-General's discretion.
Orders
Orders of the court
1. It is hereby certified for the purposes of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under the Act to the appellant in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial granted by this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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