The Court held that the respondent employer's application for costs under s 570(2)(b) of the Fair Work Act failed because the applicant employee's conduct — rejecting a Calderbank offer that required effective capitulation before the respondent had filed its evidence, abandoning general protections claims on day three of trial after testing the respondent's evidence, and late production of documents — did not individually or cumulatively amount to objectively unreasonable acts or omissions. The Court emphasised that rejection of a Calderbank offer is not rendered unreasonable merely because the outcome at trial was less favourable, particularly where the offer preceded the filing of evidence and the applicant enjoyed the benefit of the reverse onus under s 361. Even if the threshold of unreasonableness had been met, the Court indicated it would have declined to exercise the discretion, having regard to the disproportionate impact of a costs order on the individual applicant compared to the well-resourced public entity respondent.
The full text is available to signed-in members.