Ashby v Slipper (No 2)

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.