Whitby v ZG Operations Australia Pty Ltd (No 2)

The respondents, ZG Operations Australia Pty Ltd, ZG Lighting Australia Pty Ltd, and Mr Dixon, sought costs under the Fair Work Act 2009 (Cth) against the applicants who had instituted proceedings against them. The respondents claimed that the applicants instituted the proceedings without reasonable cause and that they unreasonably refused to discontinue the proceedings against Mr Dixon after he advanced a no case submission. The applicants argued that the respondents’ claims for indemnity costs should be dismissed. The Federal Court of Australia was required to determine whether the applicants' refusal of, or failure to accept, the respondents’ “Calderbank offer” was an unreasonable act or omission under s 570(2)(b) of the Fair Work Act 2009 (Cth) and whether the applicants instituted proceedings against Mr Dixon without reasonable cause under s 570(2)(a). The court found that the applicants instituted the proceedings against Mr Dixon without reasonable cause, leading to the conclusion that it was not necessary to decide whether the applicants' refusal of the “Calderbank offer” was an unreasonable act or omission. The court considered that continuing the no case submission might cause significant additional expense and delay, but it was not unreasonable to have heard the matters raised in support of the submission. The court decided that the applicants should pay the costs of the third respondent on the ordinary basis, and the respondents' application for costs was otherwise dismissed.