Mutch v ISG Management Pty Ltd (No 2)

The matter before the Court was an application by ISG Management Pty Ltd (ISGM) for costs incurred from various interlocutory applications brought by Mr Mutch. ISGM sought the imposition of adverse costs orders on Mr Mutch, claiming that he had caused costs to be thrown away by seeking an adjournment of his own interlocutory applications. The primary legal issue before the Court was whether Mr Mutch's actions amounted to an "unreasonable act or omission" under s 570(2)(b) of the Fair Work Act 2009 (Cth), warranting an adverse costs order against him. The Court also considered whether the presence of a litigation funder was relevant to the exercise of its discretion.

The Court found that ISGM's submissions did not demonstrate that any costs were actually incurred by it as a result of Mr Mutch pressing the application. Even if some costs were incurred, it was not unreasonable for Mr Mutch to seek relief in accordance with the law as it stood at that time. The Court noted that the possibility of exercising its discretion favourably to Mr Mutch did not render the pressing of that application an unreasonable act within the meaning of s 570(2)(b) of the FW Act. Furthermore, the Court held that it was ISGM's adjournment application which caused the vacation of the hearing dates on 20 and 21 August 2019, and not Mr Mutch's application to adjourn his own interlocutory applications.

Accordingly, the Court dismissed ISGM's application for adverse costs orders against Mr Mutch. The Court found that there should be no order for costs in each of the interlocutory applications mentioned in the decision. In relation to Mr Mutch's interlocutory application of 24 May 2019, the Court determined that there be no order as to costs in relation to the hearing on 20 August 2019, and costs were otherwise reserved. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.