FEDERAL COURT OF AUSTRALIA
QNurses First Inc v Monash Health (No 2) [2022] FCA 277
File number(s): VID 610 of 2021 Judgment of: MORTIMER J Date of judgment: 24 March 2022 Catchwords: COSTS – where leave granted to discontinue entire proceeding – where proceeding was in relation to a matter arising under the Fair Work Act 2009 (Cth) – whether the proceeding was commenced without reasonable cause – whether the pursuit of interlocutory relief was unreasonable after evidence adduced by the respondent in response to an interlocutory application – whether the Court should exercise its discretion to award costs – no order made as to costs
INDUSTRIAL LAW – application of s 570 of the Fair Work Act 2009 (Cth)
Legislation: Fair Work Act 2009 (Cth), ss 340(1), 361, 370, 570
Federal Court of Australia Act 1976 (Cth), s 43(1)(b)
Federal Court Rules 2011 (Cth), rr 9.21, 26.12(4), 26.12(7)
Occupational Health and Safety Act 2004 (Vic), s 35
Public Health and Wellbeing Act 2008 (Vic), s 200(1)(d)
Cases cited: Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987
Peters v Commonwealth of Australia (No 2) [2022] FCA 135
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 33 Date of last submission: 25 February 2022 Date of hearing: Determined on the papers Counsel for the Applicants: Ms P Willoughby Solicitor for the Applicants: FWEL Pty Ltd t/a Worker Law Counsel for the Respondent: Mr M Follett Solicitor for the Respondent: Victorian Government Solicitor’s Office ORDERS
VID 610 of 2021 BETWEEN: QNURSES FIRST INC
First Applicant
ANGELA KALLISTA
Second Applicant
AND: MONASH HEALTH
Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The applicants be granted leave to discontinue the proceeding.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION AND BACKGROUND
This proceeding concerns an action brought by a nurses’ association and one of its members, as a representative proceeding under r 9.21 of the Federal Court Rules 2011 (Cth). The applicants sought declaratory relief and pecuniary penalties in relation to alleged adverse action by the respondent, Monash Health, as the employer of the second applicant and the other allegedly affected employees. The factual context was Monash Health’s implementation of what it understood to be its obligations under the then applicable COVID-19 Mandatory Vaccination (Specified Facilities) Directions, made under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic).
Unless they were subject to any of the exceptions specified in the Directions, Monash Health required its employees (through a direction given to them), including the second applicant Ms Kallista, to be vaccinated against COVID-19 in order to perform…
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- Case
- [2022] FCA 277
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the proceeding was commenced without reasonable cause, particularly in light of the evidence presented by Monash Health in response to an interlocutory application. The Court had to consider the application of section 570 of the Fair Work Act 2009 (Cth), which concerns the exercise of the Court’s discretion to award costs. Specifically, the Court had to determine if the pursuit of interlocutory relief was unreasonable after Monash Health provided its evidence. The Court also had to balance the principle that parties should not be punished for discontinuing proceedings against the need to discourage frivolous litigation.
The Court found that the proceeding was not commenced without reasonable cause. The applicant had a reasonable basis for bringing the proceeding based on the available information at the time. While the evidence presented by Monash Health in response to the interlocutory application was relevant, it did not conclusively demonstrate that the entire proceeding was without reasonable cause. The Court also noted that the applicant had acted promptly in seeking to discontinue the proceeding once it became clear that the case was not well-founded. Consequently, the Court exercised its discretion and declined to make an order as to costs, finding that the applicant’s conduct did not warrant a costs penalty.
In summary, the Court granted QNurses First Inc leave to discontinue the entire proceeding and made no order as to costs. The decision underscores the importance of a reasonable basis for initiating legal proceedings, particularly in matters governed by the Fair Work Act, and highlights the Court's discretion in determining whether to impose costs on a party that discontinues proceedings.
Orders
Orders of the court
1. The applicants be granted leave to discontinue the proceeding.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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