PRACTICE AND PROCEDURE - application to set aside costs orders under r 39.04 of the Federal Court Rules 2011 (Cth) – relevant principles which determine when orders can be varied or set aside – jurisdiction of the Court to order costs where s 570 of the Fair Work Act 2009 (Cth) applies
1.Orders 3 and 4.2 of the orders made by this Court in NSD 22 of 2013 on 27…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ashby v Slipper (No 2) [2014] FCAFC 67
Case
[2014] FCAFC 67
Decision Date
CaseChat Overview and Summary
In Ashby v Slipper (No 2), the matter before the court was an application by Mr Ashby to set aside costs orders made against him. The Federal Court was asked to consider whether it should vacate certain costs orders under rule 39.04 of the Federal Court Rules 2011. The primary legal issues involved the interpretation and application of section 570 of the Fair Work Act 2009 and the principles that guide the court when varying or setting aside costs orders.
The court had to determine whether the amended section 570 of the Fair Work Act, which came into effect on 1 January 2013, applied to the costs orders in question. The primary judge had made the costs orders before the amendment, but the appeal was filed after the amendment took effect. The court needed to assess whether the new section 570 applied retrospectively to the costs orders and if so, whether the orders could be set aside under rule 39.04. The court also considered the relevant principles guiding the exercise of the discretionary power to vary or set aside orders, including the public interest in the finality of litigation.
In reaching its decision, the court found that the amended section 570 did not apply retrospectively to the costs orders made before its commencement. The court held that the discretion to vary or set aside orders under rule 39.04 was to be exercised sparingly, with great caution and rarely. Given the principles of finality of litigation, the court decided not to vacate the orders. Consequently, the application to set aside the costs orders was dismissed.
The final orders of the court were that Orders 3 and 4.2 of the orders made by the Court on 27 February 2014 be vacated. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Orders 3 and 4.2 of the orders made by this Court in NSD 22 of 2013 on 27 February 2014 (including the corrigendum dated 5 March 2014) be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
When the FWA was enacted, and throughout the period when the primary proceedings were instituted and Mr Slipper's interlocutory application was heard and determined, s 570 of the FWA was relevantly in the following terms:(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2)…(2) The party may be ordered to pay the costs only if:(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or(b)the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs…Costs in the primary judgment As to costs the primary judge proceeded on the basis that the Court was then exercising jurisdiction under the FWA within the meaning of s 570(1): Ashby v Commonwealth (No 4) (2012) 209 FCR 65 at [200]-[202]. No challenge was made to the correctness of this approach. The primary judge at [200] correctly held that: Ordinarily, s 570(1) of the Fair Work Act limits the powers of a Court exercising jurisdiction under that Act to order a party to pay costs. However, the Court can make such an order where it is satisfied that the party instituted the proceedings vexatiously or without reasonable cause (s 570(2)(a)) or that the party's unreasonable act or omission caused the other party to incur the costs (s 570(2)(b)).and at [202] that: The power to make an order for costs is in the discretion of the Court once the factors in s 570(2)(a) or s 570(2)(b) have been satisfied. The Fair Work Amendment Act 2012 (Cth) (Amending Act), item 1 of Sch 10 provided for an amendment to s 570(1) of the FWA omitting "exercising jurisdiction under this Act" and substituting "in relation to a matter arising under this Act". In Sch 3 of the FWA, incorporated into the FWA by Sch 11 of the Amending Act, cl 31 provides that Pt 1 of Sch 10 to the Amending Act (which contains the amendment to s 570 of the FWA) applies to proceedings commenced after the commencement date. Section 2 of the Amending Act provides that Sch 10 commences on a date to be proclaimed. The date of proclamation of the commencement of Sch 10 was 1 January 2013. Since that date s 570(1) of the FWA applies to appeals to the Full Federal Court from a single judge of the Court. Mr Ashby's application for leave to appeal from the primary judgment was filed on 11 January 2013. Accordingly, s 570(1) applied to this appeal in its amended form.Rule 39.04 Rule 39.04 provides that the Court “may vary or set aside a judgment or order before it has been entered.” The power is discretionary. The exercise of the discretion to vary or set aside orders, including under r 39.04 FCR, is a power to be used only sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation: Autodesk Inc. v Dyason [No 2] (1993) 176 CLR 300 at 302; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [772]; and see generally Wenkart v Pantzer (No 3) [2013] FCAFC 162.