Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2)

In the case of Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2), the Australian Rail, Tram and Bus Industry Union (ARTBIU) sought lump sum costs against Transit Systems West Services Pty Ltd under section 570(2) of the Fair Work Act 2009 (Cth). The ARTBIU argued that the proceedings were instituted without reasonable cause and that the proceedings were vexatious. The legal issues before the court were whether the ARTBIU's application for costs was made without reasonable cause, and whether the court should exercise its discretion to refuse the application for costs despite the ARTBIU not having foreshadowed the application for costs at or before the hearing.

The court dismissed the application for costs. It held that the ARTBIU's application for costs was based on the observations found in the primary judgment, and that it was not open for the ARTBIU to have pressed for costs before then. The court noted that it would have been "impertinent" for the ARTBIU to have anticipated the Full Court's high level of criticism and disapprobation of its opponent's case. The court also held that the ARTBIU's strong criticism of the submissions advanced by Transit Systems did not necessarily mean that the proceedings were instituted without reasonable cause. The court observed that the legal arguments ultimately accepted by the Court had not been pressed upon the losing party before the hearing, and that the same could be said in the present case.

The court further held that it was not one of those exceptional or rare cases in which costs should be awarded under s 570(2) of the Fair Work Act. The court held that the proceedings were not instituted without reasonable cause within the meaning of s 570 of the Fair Work Act.

ORDERS:
1. The first respondent’s application for costs be dismissed.