Court’s increased willingness to award costs in general protection claims

Although uncommon for costs to be ordered following adverse action claims, the Federal Circuit Court of Australia’s recent decision of Carr v ILSC (Brisbane) Pty Ltd & Anor, Pathik v ILSC (Brisbane) Pty Ltd & Anor (No 2) [2019] FCCA 1028 highlights the Court’s increased willingness to do so.  

Judge Cameron ordered indemnity costs against two employees who unreasonably rejected their employer’s early ‘Calderbank’ offers of $10,000. Instead, the two English language teachers maintained their demands for $95,000 each.  

Judge Cameron found that although the employer’s offers were not substantial, the employees gave little thought to their employer’s offers and made “provocative, belligerent” counter offers. It was suggested the speed in which the rejections were communicated and the terms in which they were made showed a lack of proper consideration.

Judge Cameron also found it was unreasonable for the teachers to not accept the offers given the weakness of their cases, “both as to substance and as to the care and attention given to their preparation.”  

The offers made by the employer were more favourable than the result achieved by the employees. As the employer incurred costs after the offers were served, Judge Cameron ordered the employees to pay costs on an indemnity basis from the date the employer made the offers.  

This decision highlights the importance of employers making early Calderbank offers to settle general protections claims.

Please click the link below to view the full decision:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA//2019/1028.html