McLoughlin v Randstad Pty Ltd (No 2)

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

McLoughlin v Randstad Pty Ltd [2021] FCAFC 160

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:

1. 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…