The Court refused a costs application under s 570(2) of the Fair Work Act, finding that the respondent had not established that the applicant's interlocutory application was instituted without reasonable cause under s 570(2)(a) or that the applicant's conduct constituted an unreasonable act or omission under s 570(2)(b). The Court emphasised that where there has been no trial on the merits and no dispositive findings, it will rarely be appropriate to assess the merits of an interlocutory application for the purpose of a costs order, and that both parties shared an equal measure of success and failure at the interlocutory hearing. Even if the statutory preconditions had been met, the Court would have declined to exercise its residual discretion, noting that s 570(2) should not become the basis for costs arguments over every transgression in the conduct of a case.
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