Federal Court makes costs orders in Fair Work case
- By Ian Latham
- May 25
- 3 min read
The Federal Court has ordered costs in a case arising under the Fair Work Act in Turner v Chandler Macleod Group Limited (Costs) [2026] FCA 458. Been doing so, the Court dealt in detail with the principles applied to section 570 of that Act. As the Court noted at [4]
That section is subject to the exceptions set out in s 570 of the Fair Work Act 2009 (Cth) which (relevantly) provides that costs may be ordered only if the Court is satisfied that the proceedings were instituted vexatiously or without reasonable cause (s 570(2)(a)) or that the party’s unreasonable act caused the other party to incur the costs (s 570(2)(b)).
what the court held
The Court held at [9] that:
"Having regard to my findings in the judgment that the applicant’s claim against the first respondent raised issues that had been previously settled under the CMG Deed, my finding that the first respondent was covered by the release clause in the CMG Deed, and that the claim to set aside the CMG Deed was not properly brought, I am satisfied that the proceedings were instituted without reasonable cause."
The Court went on to hold at [12] that:
"Given my findings at [70] of the judgment as to the lack of any proper ground for the application to set the CMG Deed aside, and the failure by Mr Turner to bring evidence supporting his claim that the CMG Deed was “illegal”, it should have been clear to Mr Turner that his claim was “hopeless”. Accordingly, prosecuting these proceedings was an unreasonable act."
Accordingly at [13], the Court held that:
"I find that the jurisdiction to award costs in s 570(2) is enlivened."
The Court then went on to discuss whether the discretion to award costs should be exercised before deciding at [19] that:
"given that I have found that the proceedings were commenced with no reasonable cause as against the first respondent (see [71] of the judgment) and that prosecuting the proceedings was unreasonable, it is appropriate to order costs against the applicant. I also take into account in exercising this discretion that the first respondent seeks a lump-sum which is, as set out by Mr Russell in his affidavit as to costs, less than would be recovered on an order for costs in accordance with the Federal Court Scale (see Schedule 3 of the Federal Court Rules 2011 (Cth))."
At [22] - [28], the Court noted the provisions of the Practice Note on costs and waived the need for compliance with the Note.
The Court went on to make a lump sum order for $20 000 at [29].
The decision provides a detailed explanation of the policy, effect and procedure of s 570 of the Act. With the increase in costs applications being made in Fair Work Act cases, it is likely to have a significant impact on the reasoning in many of those cases.
A case summary can be found in the link.
Wider commentary
Included by The Brief Editorial.
REASONS FOR JUDGMENT NEEDHAM J:
1 I gave judgment in this matter on 27 February 2026 in Turner v Chandler Macleod Group Limited [2026] FCA 139 (the judgment), inter alia striking out the Originating Application and Statement of Claim against the first respondent, making other orders as sought by the remaining respondents, and making suppression orders. These reasons presume familiarity with the judgment and uses the same defined terms.
2 The first respondent indicated that it would seek costs of the CMG Application, and has now put on submissions and evidence in support of a costs order against Mr Turner. Mr Turner was given 28 days to file submissions and evidence in response to the costs application, but did not do so.
The question of costs was reserved on the expiry of those 28 days, to be determined on the papers. On 10 April 2026, Mr Turner and Mr Forno, the solicitor for the BHP respondents, appeared before me at a case management hearing to make the final suppression orders sought by the BHP respondents. At that case management hearing, Mr Latham for the first respondent also appeared to raise the fact that no submissions and evidence had been filed by Mr Turner in relation to costs. As the matter had already been reserved, and Mr Turner did not seek any variance of those orders, I have proceeded to determine the matter of costs.
Authored by Ian Latham of Denman Chambers
