No costs awarded in adverse action case

Cases

No costs awarded in adverse action case

The Federal Court declined to award costs to an employer against an employee who failed in an adverse action claim despite considerable delay caused by the employee’s poorly prepared documentation.

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The Federal Court declined to award costs to an employer against an employee who failed in an adverse action claim despite considerable delay caused by the employee’s poorly prepared documentation.

[Full text of this case: T v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048 (23 September 2015)]

Justice White noted that the question was whether the employer incurred costs caused by the unreasonable act or omission of the applicant. The court concluded that there were shortcomings in aspects of the applicant’s conduct of the proceedings but not such as to enliven the costs discretion.

Justice White commented:

“Even had I been satisfied that the discretion under s 570(2) was enlivened in relation to any one of Transfield’s grounds, I would not have exercised that discretion in favour of Transfield. There would be an incongruity in doing so given that Transfield’s own non-compliance with the pre-trial programming orders caused expense and inconvenience to the applicant, but in respect of which the applicant has not made any claim.”

Costs awards generally


The court made some general observations on the award of costs:

“ …  the Court should be circumspect before allowing claims for costs under s 570 to descend into analyses of the adequacy or otherwise of a pleading and of the extent to which established shortcomings have had on the opposing party’s preparation.

As I have said, criticisms of a party’s pleading are commonplace. Defects in a pleading are an ordinary incident in litigation. In my opinion, the applicant should have recognised earlier that the proposed amended statement of claim still contained deficiencies. Had he done so, Transfield’s interlocutory application and the hearing on 19 March 2014 may have been unnecessary ...

… I am not willing to characterise the applicant’s conduct as being the kind of unreasonableness to which s 570(2)(b) refers. In my opinion, the Court should be circumspect before doing so. It commonly occurs that applicants have difficulties in pleading appropriately an adverse action claim and an associated breach of contract claim.

Experience also indicates that, despite inadequate pleadings, a matter can often proceed to trial without undue embarrassment to the opposing party. A somewhat robust approach to pleadings is often appropriate in actions of the present kind, and not that adopted in substantial commercial litigation between sophisticated and experienced litigants …”

The bottom line: Courts are reluctant to award costs in areas involving workplace rights – noting that litigants are commonly inexperienced in court matters and so some leeway should be allowed in presenting cases.

T v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048 (23 September 2015) 

See also:  Adverse action 

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