Prados v Chief Commissioner of Police for the State of Victoria (No.2)

In *Prados v Chief Commissioner of Police for the State of Victoria (No.2)*, heard in the Federal Circuit Court of Australia, the applicant sought costs against the respondent. The proceeding had previously been set aside on the basis that it did not engage a federal matter and no claim within accrued jurisdiction was available. The respondent had opposed the applicant's demand by referring to authority indicating the claim was destined to fail.

The central legal issue before the Court was whether an order for costs should be made against the applicant, and if so, on what basis. This involved considering the default provision under section 570 of the *Fair Work Act 2009* (Cth), which generally dictates that parties bear their own costs, and whether exceptional circumstances warranted a departure from this default. The Court also had to determine if the applicant had instituted the proceeding without reasonable cause and if an unreasonable act by the applicant had caused the respondent to incur costs.

Judge A Kelly found that the applicant had instituted the proceeding without reasonable cause and that an unreasonable act had caused the respondent to incur costs. The Court noted that the ordinary basis for costs in the Federal Circuit Court is that costs are calculated according to the items provided in the Schedule to the Federal Circuit Court Rules, and that it is not usual to make an order for payment of taxed costs. However, in this instance, the Court was satisfied that an order for costs was appropriate. The Court ordered that the applicant pay the respondent's costs and directed the parties to consult regarding the specific items of costs that should be allowed.