Federal Court of Australia

Edwards v Golden Cockerel Pty Ltd (No 2) [2025] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the respondent of and incidental to the proceeding incurred from and on 17 April 2024, including costs of and incidental to the hearing of 13 June 2024, on an indemnity basis.

2.    The applicant pay the costs of the respondent of and incidental to the proceeding incurred prior to 17 April 2024 including:

(a)    reserved costs,

(b)    costs of and incidental to the applicant’s interlocutory application filed on 1 July 2022 to amend her originating application and statement of claim, and

(c)    costs of and incidental to the hearing which was listed for 16 and 17 April 2024, on a party-party basis,

such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In my earlier judgment in this matter, Edwards v Golden Cockerel Pty Ltd [2025] FCA 152, I found that the respondent, Golden Cockerel Pty Ltd (Golden Cockerel) had no case to answer in respect of the claims of the applicant, Ms Edwards, in respect of ss 340 and 351 of the Fair Work Act 2009 (Cth) (FWA), or found alternatively that the Amended Statement of Claim filed by Ms Edwards on 14 October 2022 be struck out pursuant to rule 16.21(1)(b),(c),(d),(e) and (f) of the Federal Court Rules 2011 (Cth).

2    As a general proposition a party to proceedings under the FWA may be ordered by the Court to pay costs incurred by another party to the proceedings only in accordance with the provisions of s 570(2), or ss 569 or 569A of the FWA. In this matter, however, the parties have asked to be heard further in respect of their costs, and have filed relevant submissions and material.

EVIDENCE OF THE PARTIES RELEVANT TO COSTS

3    Evidence has been filed on behalf of both parties. A lawyer for the respondent, Mr Stewart Rinkevich, affirmed two affidavits. Ms Edwards has sworn one affidavit.

Affidavits of Mr Rinkevich

Affidavit dated 21 March 2025

4    In his affidavit dated 21 March 2025 Mr Rinkevich relevantly deposed:

3.    Attached to my affidavit and marked Annexure "SR-1" is a true bundle of documents containing the following offers to settle made by the Respondent to the Applicant during the proceeding:

(a)    Offer dated 26 June 2023 for $12,500 [at p.2 of SR-1];

(b)    Offer dated 12 October 2023 for $8,000 [at p.6 of SR-1];

(c)    Offer dated 9 October 2023 for $5,000 [at p.9 of SR-1];

(d)    Offer dated 19 October 2023 for $12,500 [at p.12 of SR-1]; and

(e)    Offer dated 16 April 2024 for the matter to be discontinued with no order as to costs [at p.17 of SR-1).

4.    The Applicant rejected all of the above offers.

5    The offers were generally of limited duration for acceptance, subject to execution of a deed of settlement and release and required each party to bear their own costs.

6    In its letter of 19 October 2023 enclosing the offer of that date of Golden Cockerel, its lawyers relevantly stated:

You are hereby put on notice that the Respondent invokes the principles contained in Calderbank v Calderbank [1975] 3 WLR 586 by reserving the right to rely on this correspondence in respect of any prospective application for costs if ultimately the outcome of the proceedings was less favourable, for you, than what has been offered to you above.

We note that pursuant to section 570(2)(b) of the Fair Work Act, 2009 Cth, a court has the power to order that a party pay the costs incurred by another party if the court is satisfied that a refusal to accept an offer to settle can constitute an unreasonable act. In those circumstances, and in light of the above (particularly the decisions referred to), we strongly suggest that you seek advice on, and seriously consider the above offer in light of the potential implications of its refusal.

The Respondent will rely on this letter on the question of costs if that becomes necessary.

7    In its letter of 16 April 2024 enclosing the offer of that date of Golden Cockerel, its lawyers relevantly stated:

Consequences of a failure to accept the Offer

If you should fail or refuse to accept the Respondent's offer by the above time and date, then - if our client should ultimately be successful in the proceeding - we will rely on this letter to argue that you should have to pay the Respondent's costs incurred from 18 April 2024 onwards on an indemnity basis, or alternately on a party-party basis to be assessed.

Why you should accept the Offer

It is our view that you should accept our client's Offer for the following reasons:

In our view, your claim under s 351 of the Fair Work Act 2009 (Cth) (FW Act) is doomed to fail for the reasons set out in our client's Outline of Submissions filed in this Proceeding. Those reasons include (in our view) your failure to plead and prove the necessary jurisdictional facts in order to trigger the application of the reverse onus in s 361 of the FW Act.

In our view, your breach of contract claim is without merit for the reasons set out in our client's Outline of Submissions filed in this Proceeding. Those reasons include that you were paid 3 weeks' pay in lieu of notice at the time of your dismissal, which is the amount required by the applicable enterprise agreement and your contract of employment. No other damages are recoverable by you with respect to your termination.

Your case has now closed without any expert evidence. On the evidence that you do rely on (being that contained in the single .affidavit filed by you), there is in our view insufficient evidence to establish either a claim under s 351 of the FW Act, or the pleaded breach of contract claim.

Affidavit of 24 March 2025

8    In this affidavit Mr Rinkevich relevantly deposed:

SETTLEMENT WITH SECOND TO EIGHTH APPLICANTS

3.    On 8 or 9 June 2023, the Respondent settled with the second to eighth applicants, with deeds of settlement and release executed on 12 June 2023.

OFFERS TO SETTLE - MS EDWARDS TO RESPONDENT

4.    Attached to my affidavit and marked Annexure "SR-211 ls a true bundle of documents containing the following offers to settle made by Ms Edwards to the Respondent:

(a)    Offer dated 25 June 2023 – for $125,000;

(b)    Offer dated 14 February 2024 – for $150,000; and

(c)    Offer dated 3 May 2024- $130,000.

9    Mr Rinkevich also annexed an email dated 14 February 2024 from Ms Edwards to Mr Johan Myburgh, another lawyer acting for Golden Cockerel, which included her offer to settle. In that email, Ms Edwards relevantly stated, inter alia:

I am being very clear that this is not an acceptable or fair offer.

2 years is far too long.

After all this time, really who does Golden Cockrel think they are?

5 breaches to my employment contract have taken place over 2 years ago.

It Saddens me to know all the Staff (some are Friends) were manipulated into getting an Experimental Biological Weapon (Vaccines) that also were not tested and that the Company Mandated which was not law. Even Judge Thomas Commented at his last Case Management regarding this matter.

The mandates there were no facts, no lawful directions, no reasonable basis.

Vaccines Filled with Graphine Oxide, to which is Injected into their birds as well.

Collected Government Grants to do so, it is just wrong!

I have had their birds Tested.

As you would know The Company supply to KFC, Coles, Aldi etc, this Company needs to be held accountable for what they have done and the Public need to know what they are consuming and what they are continually doing. Poisoning everyone.

I am concerned for Australian households who are unaware of what they are consuming, again its been 2 years its stops here .I am in preparation to put forth to the media.I have liaised with local politicians who are very interested in my case and the outcome and what steps to take regarding the tested chicken and the breaches to my contract.

My Seventh Day Adventist Religious beliefs forbid me taking such vaccines, which I told various managers at Golden Cockrel of before I was sacked and they had no right to interfere with my Religious Freedom having my hand forced to subject myself to Vaccines manufactured with Aborted Foetal Cells.

I'm seeking Compensation for the 2 years salary I had revoked by an updated policy no one consented to - $150,000.

PLUS my position be Reinstated.

Golden Cockerel implemented a policy for all employees to have the vaccine for Covid-19 as mandatory.

No vaccine No job.

A policy implemented that was not necessary.

A policy that they have NOT continued with their new employees currently working at the company. since some time in 2023 ,Golden Cockrel decided they did not require their staff to be vaccinated.

2 years now ,that was the plan ,yes this was all a Plandemic ,Sudden Deaths,Turbo Cancer and Numerous List of Injuries,that was listed in my Expert Witness Reports,which hasent changed,but the truth is coming forth and People are Dropping Dead.It will be interesting how the Company is going to Handle it when Staff start Dropping ,sick and Injured,and there Families start Seeking Answers to why and want Compensation from the Company that had a unlawful Mandate,this is Murder, its all transpiring now.

Again it has been 2 years since I was unlawfully sacked for following my religious beliefs, over a pandemic that paid companies grants to vaccinate employees.

I'm sure staff are starting to be aware there been Fooled ..

In your previous correspondence You say I have a weak case, I don't think so.

(errors in original)

Affidavit of Ms Edwards

10    In her affidavit dated 16 April 2025 Ms Edwards relevantly gave evidence concerning:

    Her work and personal history (paras [1]-[11]);

    The impact of the COVID19 pandemic on work practices of Golden Cockerel during 2021 (paras [12]-[14]);

    The background to Ms Edwards commencing her proceedings against Golden Cockerel, and the course of those proceedings including settlement offers (paras [15]-[42]); and

    Her previous desire to be reinstated in her employment with Golden Cockerel.

SUBMISSIONS OF THE PARTIES

Submissions of Golden Cockerel

11    Golden Cockerel seeks an order that Ms Edwards pay its costs of and incidental to the proceeding, including:

(a)    Reserved costs;

(b)    Costs of and incidental to Ms Edwards’ interlocutory application filed on 1 July 2022 to amend her originating application and statement of claim, which was the subject of an application heard by Thomas J on 7 November 2023 and adjourned until the substantive matter was determined;

(c)    The hearing which was listed for 16 and 17 April and only part-heard on 16 April 2024; and

(d)    Golden Cockerel’s no-case submission, including the hearing on 13 June 2024.

12    In summary, Golden Cockerel submitted:

    The proceeding was instituted vexatiously and without reasonable cause because the Originating Application and Statement of Claim filed on 13 May 2022 did not disclose a reasonable cause of action.

    By the time of the hearing on 16 April 2024 Ms Edwards had abandoned all but two of her original claims. A reasonable person in Ms Edwards' position would not have made the claims made in her original Statement of Claim or Amended Statement of Claim as they were misconceived at the time in the sense of being incompetent or unsupportable, and this was either known to Ms Edwards at the outset of the proceeding, or ought reasonably to have been known by her.

    Ms Edwards refused five offers to settle made by Golden Cockerel between 26 June 2023 and 16 April 2024. Golden Cockerel submitted:

5.9    The First Offer was made on 26 June 2023 - which was weeks after the Respondent had settled with the second to eighth applicants, and more than 3 weeks after the Respondent filed its affidavit evidence in chief. The Applicant ought to have known by this time that her application was hopeless, particularly in light of the Respondent's submissions filed on 11 August 2022 and 15 September 2022 setting out the grounds of its objections to the Amended Statement of Claim, and the basis on which the Respondent contended that many, if not all, of the Applicant's claims were hopeless.

5.10.    The Second, Third and Fourth Offers were made between 9 and 19 October 2023, weeks after Golden Cockerel filed its expert evidence on 6 October 2023. Again, the deficiencies in the Applicants pleaded and evidential case were readily apparent at this time. The offers were generous in light of those deficiencies.

5.11    The Fifth Offer was made after the first day of hearing on 16 April 2024 at 3.21pm. By that time, the Applicant had concluded her case with no evidence from any person other than herself, and the Respondent had made an oral no-case submission. A reasonable person would have taken the offer. The Applicant's refusal meant the Respondent was put to the cost of preparing written submissions in support of its no-case submission, and instructing counsel to appear at the further hearing on 13 June 2024.

5.12    In each case, the Respondent submits the Applicant's refusal of the First to Fifth Offers was an "unreasonable" act which caused the Respondent to unnecessarily incur costs for the purposes of s 570(2)(b) of the FWA.

    Golden Cockerel submitted that it was appropriate for the Court to award costs on an indemnity basis either from the commencement of the proceeding on 13 May 2022, or from the date of expiry of any of Golden Cockerel’s offers. This was because:

•    Ms Edwards’ pleaded claims lacked merit, in that they were unnecessarily prolix, opaque, internally inconsistent and embarrassing, sought relief that was not within the jurisdiction of the Court to grant (such as a declaration that vaccinations were unlawful), and which failed to plead any arguable cause of action;

•    the fact that Ms Edwards made numerous medical claims, including that she herself had depression, for which she offered no medical evidence;

•    the Court's findings about the inadmissibility of much (if not all) of Ms Edwards’ evidence;

•    the fact that Ms Edwards informed the Court on 5 April 2024 that she was calling all of her witnesses at the hearing, and yet (with no notice to Golden Cockerel) offered no witnesses present in person for cross-examination other than herself;

•    the fact that Ms Edwards opened and closed her case within 10 minutes on 16 April 2024 without calling any witnesses;

•    with respect to Ms Edwards’ claim under s 340 of the FWA, the Court's findings that she failed to adduce relevant evidence at the hearing were such that the reverse onus under s 361 was not enlivened;

•    with respect to Ms Edwards’ claim under s 351 of the FWA, the Court's findings that Ms Edwards failed to plead that Golden Cockerel took adverse action against her because of her religious beliefs, and she failed to adduce any credible evidence that her religion forbade vaccination, which meant Ms Edwards failed to enliven the reverse onus in s 361;

•    the Court's findings that Golden Cockerel had no case to answer with respect to any of Ms Edwards’ claims; and that in the alternative, substantial parts of the Amended Statement of Claim should be struck out as failing to disclose a reasonable cause of action, or were hopeless and bound to fail;

•    the fact that, after the hearing had adjourned on 16 April 2024, and after the Golden Cockerel’s final offer was made (and rejected), Ms Edwards put Golden Cockerel to the time and expense of having to file submissions in support of its no-case application, when a reasonable person would not have contested that application;

•    the fact that it was not until the hearing of Golden Cockerel’s no-case application on 13 June 2024 that Ms Edwards abandoned many of the allegations and claims that she had maintained up to that point;

•    the apparent thrust of a vast amount of Ms Edwards’ Amended Originating Application and Amended Statement of Claim (and the previous versions of those documents) was to serve as a vehicle for what Ms Edwards really wanted, which was a declaration that Golden Cockerel’s Vaccination Policy was not a lawful and reasonable direction because Covid-19 vaccines are not safe and effective; and to that extent, the proceeding was for an ulterior purpose, since the relief sought was not within the jurisdiction of the Court to grant and/or the Applicant never seriously attempted to make good the extraordinary claims she made;

•    there was no evidence before the Court about the safety and efficacy of vaccines, and no serious allegation that the Vaccination Policy was not lawful or reasonable, and all allegations in the pleadings to that effect were ultimately struck out for want of evidence or relevance; and

•    overall, Ms Edwards made numerous allegations that ought never to have been made, and/or prolonged the matter by making groundless contentions.

Submissions of Ms Edwards

13    In summary Ms Edwards submitted:

    A costs order in the circumstances would be contrary to the protective intent of the FWA.

    There is a high threshold prescribed by 570(2)(a) of the FWA before costs are awarded. The words “or vexatiously” elevates the circumstances to that of an exceptional nature.

    At the time of commencement there had been no judicial consideration of many of the issues raised in these proceedings. To the extent that Golden Cockerel contended that the proceedings were without merit, this contention was made with the benefit of hindsight, and ignores the position of the law and Ms Edwards at the time of the commencement of the proceedings.

    Ms Edwards was a litigant in receipt of the legal advice of a legal practitioner in the face of uncertain law and one of eight aggrieved employees, whose litigation goal was to be reinstated. It cannot be stated that a reasonable person in her position would have made another decision.

    The issue of unreasonableness within the meaning of s 570(2) does not turn exclusively on success at trial.

    Although Golden Cockerel contended that Ms Edwards’ refusal to accept each offer for settlement were unreasonable acts, Golden Cockerel does not particularise any other acts or omissions as unreasonable.

    Golden Cockerel bears the onus of establishing that the offers made were reasonable in their nature, namely on reasonable terms and in a reasonable way (Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221, [166]). However, each of the offers made by Golden Cockerel were made in circumstances which were unreasonable because:

•    On each occasion Ms Edwards was provided insufficient time to respond (i.e., one day or two days depending on the offer);

•    Each offer required or may have required legal advice;

•    The content of the offers was unreasonable because they failed to address reinstatement, which is what Ms Edwards wanted; and

•    In circumstances where Ms Edwards commenced proceedings as one of multiple applicants, the Court may be minded to order that she pay a proportion of the indemnity costs for which she is otherwise liable.

CONSIDERATION

14    Section 570 of the FWA provides:

Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

15    Principles relevant to the application of s 570 were recently summarised by Owens J in Burt v University of Sydney (No 2) [2025] FCA 596. I respectfully adopt the following summary of his Honour in that case:

6.    By limiting the circumstances in which a costs order may be made, s 570 of the Fair Work Act operates to promote access to justice by ensuring that the spectre of an adverse costs order does not discourage litigants with genuine grievances, and an arguable evidentiary and legal basis for them, from advancing their claims in a complete and robust way: Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J). It follows that the “Court ought be very careful indeed to exercise the discretion provided by s 570(2) and should not do so other than in a clear case”: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J).

7.    Even if the preconditions specified by s 570(2) exist, the Court retains a discretion as to whether it will award costs: Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102 at [31] (Rangiah, Goodman and McElwaine JJ); Australian Workers Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428; [2013] FCAFC 23 at [8] (Dowsett, McKerracher and Katzmann JJ); Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14 at [11] (Rares, Flick and Jagot JJ).

8.    For the purposes of s 570(2)(a), costs will only be capable of being awarded against a party where their case had “no real prospects of success or was doomed to fail”: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275; [2006] FCAFC 199 at [60] (Black CJ, North and Mansfield JJ); Ashby v Slipper (No 2) [2014] FCAFC 67 at [35] (Mansfield, Siopis and Gilmour JJ). The focus of that question necessarily changes with the nature of the proceedings in relation to which the costs order is sought. Here, it is an application for leave to appeal and a related extension of time. This case is closer, therefore, to the context of an appeal, in relation to which the Full Court observed in Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 at [10] (Dowsett, Tracey and Katzmann JJ):

        In such proceedings the focus changes to whether, having regard to the facts apparent to the appellant at the time of instituting the appeal or the application for judicial review, there were no reasonable prospects of success. In evaluating these prospects regard may be had to the reasons for judgment or decision under appeal or review, as the case may be, and the grounds relied on to challenge the judgment or decision: see Imogen Pty Ltd v Sangwin [1996] IRCA 654; (1996) 70 IR 254 at 257 per Wilcox CJ.

9.    In relation to s 570(2)(b), the principles governing the operation of that sub-section were helpfully collected by Halley J in BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 at [26]. Critically:

...

(b)    the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 at [26] (Katzmann J); Tucker v State of Victoria [No 2] [2021] VSCA 182 at [32(h)] (Kyrou, McLeish and Sifris JJA);

(c)    the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch v ISG Management Pty Ltd (No 2) at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 at [8] (Bromberg J); Tucker at [32(h)];

(d)    the term “unreasonableness” is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the Fair Work Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7];

(e)    unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v King [No 2] [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ)]

10.    Of particular relevance for present purposes, it is also well-established that the failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2)(b): Melbourne Stadium Ltd v Sautner [2015] FCAFC 20 at [166] (Tracey, Gilmour, Jagot and Beach JJ).

16    Applying these principles to the present case, I am satisfied that Ms Edwards vexatiously commenced these proceedings, and later vexatiously refused to discontinue or otherwise compromise her claim, notwithstanding that it was plain that her claim was hopeless and doomed to fail. I have formed this view for the following reasons.

17    First, Ms Edwards abandoned most of her original claims by the date of the hearing, which indicates acceptance by her that those original abandoned claims lacked merit. In respect of the claims ultimately pressed by Ms Edwards, I found in the primary judgment that there was no case to answer. It appears clear that, at least by the time of hearing of 16 April 2024, her claim had no real prospects of success or was doomed to fail.

18    Second, the reasonableness of an offer to settle proceedings must be assessed by regard to all relevant circumstances, including the issues in the case, the prospects of success at the relevant time, the manner of conduct of the proceedings and any counteroffers (see for example Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 at [42]). Materially, Golden Cockerel’s settlement offers were monetary amounts (with the exception of the settlement offer of 16 April 2024 where no monetary amount was offered), and the costs of the proceedings being borne by each party. Ms Edwards submitted that those settlement offers were not reasonable because they did not address her wish to be reinstated. However, there was no evidence, for example, of any prospective loss of entitlements to Ms Edwards referable to her period of service if she were not reinstated (cf Roy Morgan Research Ltd v Baker [2014] FWCFB 1175 at [12]). Ms Edwards gave evidence of her wish to work in the meat processing industry. In circumstances where the strength of Ms Edwards’ case was plainly seriously in doubt, and, properly advised, she may have concluded that her attempt to secure reinstatement was attended by difficulties (cf comments of Jessup J in Sperandio v Lynch (No 3) [2007] FCA 1243 at [11]), I consider that Ms Edwards acted unreasonably in failing to accept the settlement offers of Golden Cockerel. I further find that the settlement offers of Golden Cockerel were reasonable. I am not prepared to find that Golden Cockerel was unreasonable in failing to include in any of its settlement offers to Ms Edwards the prospect of her being reinstated into her employment, and I do not consider giving Ms Edwards relatively limited periods of time in which to consider the multiple settlement offers made was unreasonable.

19    Third, the continued pressing by Ms Edwards of her claims following the hearing of 16 April 2024, in circumstances where she closed her case within 10 minutes of opening without calling any witnesses, and in the face of an offer by the respondent to settle the proceedings with each party bearing their own costs, suggests more than a misguided approach to litigation on Ms Edwards’ part. It suggests an unreasonable approach by Ms Edwards to the prospects of success in her case. I do not consider that any alleged uncertainty in respect of the state of the law could be considered a justification for Ms Edwards continuing to press her claim in such circumstances.

20    I am satisfied that both s 570(2)(a) and s 570(2)(b) of the FWA are enlivened, and that Ms Edwards should be liable for the costs of Golden Cockerel in respect of these proceedings.

21    The next question to be addressed is on what basis should costs be awarded.

22    Section 43 of the Federal Court of Australia Act 1976 (Cth) confers on the Court a discretionary jurisdiction in relation to costs. As a general proposition, where a party is entitled to its costs, the ordinary practice of the Court is to award costs on a party-party basis: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 233; Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 at [20]. However, Golden Cockerel has submitted that indemnity costs should be ordered.

23    As the Full Court recently reiterated in SunshineLoans Pty Ltd v Australian Securities and Investments Commission (No 2) [2025] FCAFC 60:

6.    Relevant principles concerning the circumstances in which costs may be awarded on an indemnity basis were summarised in Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [3]-[5] (Jagot, Yates and Murphy JJ). Broadly, there must be 'some special or unusual feature' that means that costs were imposed unreasonably on the party who seeks the indemnity costs order. As with all costs orders, the purpose remains compensatory not punitive: King v Yurisich (No 2) [2007] FCAFC 51 at [19] (Sundberg, Weinberg and Rares JJ) citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ), 563 (Toohey J), 567 (McHugh J). Generally speaking, indemnity costs orders are only imposed where it is clear that there has been unreasonable conduct that has added to the cost burden of the proceedings: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246 at [11] (Wigney J).

24    I am satisfied that the costs of Golden Cockerel of and incidental to the proceedings until 16 April 2024 should be assessed on a party-party basis. However, I am also persuaded that from that date the case was characterised by “some special or unusual feature” warranting an order of indemnity costs against Ms Edwards. In particular, I note that:

    Although Golden Cockerel submitted that indemnity costs could be awarded against Ms Edwards from the commencement of the proceedings, it accepted in the alternative that costs should be awarded on a party-party basis.

    Ms Edwards’ conduct of her proceedings on 16 April 2024 was minimal. A hearing listed for two days, namely 16 and 17 April 2024, commenced at 10.17am, with Court adjourning at 11.08am.

    Ms Edwards could have discontinued her case after the hearing of 16 April 2024 when it was clear that Ms Edwards had little of merit to press. However, Ms Edwards continued to press her claim, notwithstanding the submission by Counsel for Golden Cockerel at that hearing that Golden Cockerel intended to move a submission of no case to answer and strike out.

    As is plain from the evidence before me, Golden Cockerel made a final offer of settlement of the proceedings to Ms Edwards after the hearing of 16 April 2024. That this is so is plain from:

•    The transcript of proceedings of the hearing of 16 April 2024 which indicated that the matter was adjourned at 11.08am on that date; and

•    The evidence in Mr Rinkevich’s affidavit dated that an email from Mr Johan Myburgh to Ms Edwards sent at 3.21pm on 16 April 2024 contained an offer of settlement, the terms of which were:

(i)    Ms Edwards discontinue the proceeding by 4.00pm on 17 April 2024; and

(ii)    there be no order as to costs.

25    Notwithstanding that settlement offer, Ms Edwards continued to press her claim. In my view Ms Edwards’ conduct in rejecting the settlement offer of 16 April 2024 in those circumstances was unreasonable, and added to the costs burden in the proceeding, such that indemnity costs ought to be awarded against her.

conclusion

26    For the reasons outlined above, Golden Cockerel is entitled to its costs for the entire proceeding. From the time Ms Edwards rejected Golden Cockerel’s offer of 16 April 2024, Golden Cockerel should be entitled to those costs on an indemnity basis.

Associate:

Dated:    23 July 2025