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Court win but no costs for Virgin, Jetstar or Qantas

written by Naomi Neilson | March 13, 2024
Victor Pody shot these Qantas and Virgin 737-800s.

Major airlines Virgin, Jetstar and Qantas will not receive costs despite a court’s earlier decision to throw out a statement of claim filed by employees who were dismissed during the pandemic.

Despite successfully persuading the Federal Court to strike out the statement of claim last June, Justice Stephen Burley said he was not prepared to grant the three airlines the costs of their defence.

During the June hearing, the employees stuck by their statement of claim, which alleged the airlines had unfairly dismissed them for not having the COVID-19 vaccination at the height of the pandemic.

The court ruled in favour of the airlines, finding a number of “inadequacies” in the statement that warranted striking it out.

However, the employees were granted an opportunity to start again.

Appearing before Justice Burley this month, Virgin, Jetstar and Qantas submitted they should be granted the costs of last year’s hearing because they had alerted the employees to “deficiencies” and were ultimately “vindicated” by the court’s decision.

In response, the employees argued disputes about pleadings in any case are “commonplace” and should not merit a costs order.

Justice Burley disagreed with the airlines’ argument about the so-called deficiencies, noting while the employees may have disagreed about that specific point, it did not mean “that they refused constructively to engage with the respondents” about the dispute.

While Justice Burley said the judgment was substantially in the airlines’ favour, they were only partially successful, having failed to dismiss the entirety of the proceedings.

“Many points were made by the respondents that were critical of the manner in which the statements of claim were pleaded and sought orders that they be struck out,” Justice Burley said.

“Not all succeeded.”

Justice Burley accepted it would be the ordinary case to grant costs when a statement of claim is struck out for being inadequate.

However, Justice Burley said he could not accept the conduct of the employees in defending themselves during last June’s hearing was enough to justify a costs order being made against them.

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