Federal Court of Australia

Hennessy v Barminco Limited (No 2) [2022] FCA 33

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s solicitor pay one-half of the respondent’s costs of the Interlocutory applications dated 17 December 2021 and 20 December 2021, respectively. .

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1    On 14 January 2022, I made an order pursuant to s 370 of the Fair Work Act 2009 (Cth) (the Act) to the effect that the time within which the Originating application in these proceeding be lodged is extended up to and including 22 November 2021. I reserved the question of costs.

2    Section 570(1) of the Act provides that a party to proceedings in a court in relation to a matter arising under the Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or s 569 or s 569A. The only relevant section or subsection is s 570(2) and, in particular, paragraph (b) which provides that the court may order a party to pay the costs if satisfied that the party’s unreasonable act or omission caused the other party to incur the costs.

3    I delivered reasons for extending time (Hennessy v Barminco Limited [2022] FCA 9). I refer to paragraphs 10, 14 and 17 of those reasons. I note the following. There appears to be no reason why the applicant’s Originating application could not have been filed within time. Furthermore, the applicant only made his application for an extension of time after the respondent had brought its application for dismissal of the applicant’s application. The reason for the respondent’s application is explained in the reasons at paragraphs 5 and 6. Finally, as I noted in the reasons, the explanation for the delay was unsatisfactory.

4    I have considered the authorities of Molony v ATM Logistics Pty Ltd [2018] FCA 640 and Fitness Systems United Pty Ltd v Goldberg [2020] FCA 638.

5    I consider that this is a proper case for an award of costs and it seems to me that the proposed order I suggested at the hearing on 14 January 2022, that the award of costs should be that the respondent be paid one-half of its costs, is appropriate. However, I do not consider that those costs should be paid by the applicant. In the circumstances, they should be paid by the applicant’s solicitor and I have the power to make such an order by reason of s 43(3) of the Federal Court of Australia Act 1976 (Cth). That is the order that I will make.

6    The order of the Court is that the applicant’s solicitor pay one-half of the respondent’s costs of the Interlocutory applications dated 17 December 2021 and 20 December 2021, respectively.

Associate:    

Dated:    27 January 2022