Quirk v CFMEU and Miller v CFMEU (No.3)

In *Quirk v CFMEU and Miller v CFMEU (No.3)*, Judge Nicholls of the Federal Court of Australia considered applications for costs following unsuccessful proceedings brought by the applicants, Quirk and Miller, against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The underlying dispute concerned allegations of dismissal from employment in contravention of general protections provisions of the *Fair Work Act 2009* (Cth).

The court was required to determine whether costs should be awarded to the CFMEU pursuant to section 570 of the *Fair Work Act 2009* (Cth). This involved considering whether the applicants' unsuccessful application for transfer of the proceedings to the Federal Court, and their subsequent application for summary dismissal, constituted a "proceeding" instituted without reasonable cause or vexatiously, or an "unreasonable act or omission" by the respondents.

Judge Nicholls reasoned that the applications for transfer and summary dismissal were distinct proceedings for the purposes of a costs order. The court found that the application for transfer was not instituted vexatiously or without reasonable cause. However, the court determined that the respondents had engaged in an unreasonable act or omission in relation to the summary dismissal application, warranting a costs order in their favour. The court applied the principles governing the award of costs under section 570 of the *Fair Work Act 2009* (Cth), considering the conduct of the parties throughout the litigation.

The court ordered that the applicants pay the respondents' costs in relation to the unsuccessful application for summary dismissal, with those costs to be assessed on an indemnity basis. The court otherwise made no order as to costs in relation to the transfer application.