Mondal v Transclean Facilities Pty Ltd (No 5)

In *Mondal v Transclean Facilities Pty Ltd (No 5)*, O’Sullivan J of the Federal Court of Australia considered an application for costs by the first respondent, Transclean Facilities Pty Ltd. The dispute arose from an application made by the applicant, Mr Mondal, which the first respondent argued was misconceived and brought without reasonable cause, thereby entitling it to costs under section 570 of the *Fair Work Act 2009* (Cth).

The primary legal issue before the Court was whether the applicant's claim was so lacking in merit that it could be characterised as vexatious or instituted without reasonable cause, thereby justifying an award of costs in favour of the first respondent. This involved an assessment of whether the applicant could have established he was an employee of Transclean Facilities Pty Ltd, given his conduct in declaring himself to the Australian Taxation Office as having personal services income and his dealings with Goods and Services Tax (GST).

O’Sullivan J noted that while section 570 of the *Fair Work Act* provides for costs in certain circumstances, an award of costs does not automatically follow even if the statutory preconditions are met. The Court rejected the first respondent's submission that the applicant's conduct in relation to ATO determinations and GST collection rendered the claim vexatious or without reasonable cause. His Honour explained that the determination of whether an individual is an employee or an independent contractor requires a multifactorial assessment of the totality of the relationship, the system of work, and work practices, as established in modern authority. The Court found that the proceedings did not reach a stage where this assessment could be undertaken due to issues with the applicant's pleadings and non-compliance with court orders, but this did not automatically render the claim vexatious or instituted without reasonable cause.