Monique McCloskey v Norgrove Training Pty Ltd T/A Norgrove Training

In the Federal Circuit Court, McCloskey applied for costs against her former employer, Norgrove Training, in an unfair dismissal claim. The application for costs was made after the dismissal of the unfair dismissal claim, which was settled in the Supreme Court. The employer had applied for costs in the Federal Circuit Court, but the application was filed after the relevant deadline and without the leave of the court. The applicant sought to discontinue the application for costs in the Federal Circuit Court, but the discontinuance was not filed until after the deadline and without the leave of the court. The employer opposed the application to discontinue, citing the delay and the overall conduct of the applicant.

The court was required to determine whether the applicant's conduct warranted an award of costs and whether the jurisdictional facts were established to allow the discontinuance of the application. The court considered whether the applicant's conduct as a whole was unreasonable and whether the employer was put to costs as a result of that conduct. The court also considered whether the jurisdictional facts for discontinuance had been established, given the delay in filing the Notice of Discontinuance and the absence of leave of the court.

The court found that while the applicant's conduct was not entirely reasonable, it did not amount to a course of conduct that was unreasonable as a whole. The employer had not been put to costs as a result of the conduct, as the application for costs had not proceeded to hearing. Furthermore, the jurisdictional facts for discontinuance were not established due to the delay in filing the Notice of Discontinuance and the absence of leave of the court. The court dismissed the application for costs, finding that the applicant's conduct did not warrant an award of costs and that the jurisdictional facts for discontinuance had not been established.