FEDERAL COURT OF AUSTRALIA
Roohizadegan v TechnologyOne Limited (No 5) [2020] FCA 1734
File number: VID 996 of 2016
Judgment of: KERR J Date of judgment: 30 November 2020 Catchwords: COSTS – application for costs advanced by successful Applicant in a general protections application brought under the Fair Work Act 2009 (Cth) (Fair Work Act) – whether Respondents’ unreasonable acts or omissions caused Applicant to incur costs in accordance with s 570(2)(b) of the Fair Work Act – Court satisfied that only certain aspects of the Respondents’ conduct (being their failing to accept a settlement offer or make a plausible counter-offer late in the trial, the Second Respondent’s failure to participate in a mediation, and their advancing an application for a temporary stay of the Court’s final orders without a plausible basis) were unreasonable acts or omissions – limited costs order made in Applicant’s favour Legislation: Fair Work Act 2009 (Cth) ss 365, 570 Cases cited: Calderbank v Calderbank [1975] 3 All ER 333
Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641
Roohizadegan v TechnologyOne Limited [2019] FCA 1145
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 46 Date of last submissions: 27 November 2020 Date of hearing: Determined on the papers Counsel for the Applicant: Mr J Tracey and Mr R Minson Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondents: Mr S Wood QC, Mr B Jellis and Mr P Jeffreys Solicitor for the Respondents: Cooper Grace Ward ORDERS
VID 996 of 2016
BETWEEN: BENHAM ROOHIZADEGAN
Applicant
AND: TECHNOLOGYONE LIMITED
First Respondent
ADRIAN DI MARCO
Second Respondent
ORDER MADE BY:
KERR J
DATE OF ORDER:
30 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The Respondents pay the Applicant’s costs of proceeding VID996/2016, as agreed or in default of agreement as assessed on a party-party basis, but limited to:
(a)Costs thrown away by reason of the Applicant having to make closing submissions on 4 November 2019;
(b)Costs incurred by the Applicant in connection with the mediation conducted by Registrar Burns on 22 May 2018;
(c)Costs incurred by the Applicant in connection with the Respondents’ application dated 19 October 2020 for a temporary stay of the Court’s orders of 2 October 2020.
2.Subject to Order 1, there otherwise be no order as to costs.
3.Subject to either party applying for a contrary order within 7 days of the publication of the Court’s reasons, there be no order as to the costs of the Applicant’s application for costs.
4.Any application for a contrary order with respect to the costs of the Applicant’s application for costs be made within 7 days of the publication of the Court’s reasons, and accompanied by written submissions of no more than 2 pages in length.
5.If an application is advanced pursuant to Order 4, the opposing party or parties have leave to file responsive…
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- Case
- [2020] FCA 1734
- Decision Date
CaseChat Overview and Summary
The court examined several aspects of the respondents' conduct, including their failure to accept a settlement offer or make a plausible counter-offer late in the trial, the second respondent's absence during a mediation session, and the advancement of an application for a temporary stay of the court's final orders without a plausible basis. The court found that only certain aspects of the respondents' conduct were unreasonable. The court deemed Mr Di Marco’s refusal to participate in the mediation as not constituting an unreasonable act, as it was within the rights of the parties to insist on resolving the dispute in court. However, the court found the respondents' failure to engage in a meaningful mediation, the absence of a plausible counter-offer, and the unfounded application for a temporary stay to be unreasonable acts.
As a result, the court made a limited costs order in favour of Mr Roohizadegan. The respondents were ordered to pay the applicant's costs of the proceeding, but these were limited to specific instances where costs were incurred due to the respondents' unreasonable conduct. These included costs thrown away by reason of the applicant having to make closing submissions, costs incurred in connection with a mediation, and costs related to the respondents' application for a temporary stay. The court also noted that there would be no order as to the costs of the applicant's application for costs, unless either party applied for a contrary order within seven days of the publication of the reasons.
Orders
Orders of the court
1. The Respondents pay the Applicant’s costs of proceeding VID996/2016, as agreed or in default of agreement as assessed on a party-party basis, but limited to:
(a) Costs thrown away by reason of the Applicant having to make closing submissions on 4 November 2019;
(b) Costs incurred by the Applicant in connection with the mediation conducted by Registrar Burns on 22 May 2018;
(c) Costs incurred by the Applicant in connection with the Respondents’ application dated 19 October 2020 for a temporary stay of the Court’s orders of 2 October 2020.
2. Subject to Order 1, there otherwise be no order as to costs.
3. Subject to either party applying for a contrary order within 7 days of the publication of the Court’s reasons, there be no order as to the costs of the Applicant’s application for costs.
4. Any application for a contrary order with respect to the costs of the Applicant’s application for costs be made within 7 days of the publication of the Court’s reasons, and accompanied by written submissions of no more than 2 pages in length.
5. If an application is advanced pursuant to Order 4, the opposing party or parties have leave to file responsive written submissions of no more than 2 pages in length within 7 days of such application being served upon it or them.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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