Bannon v Nauru Phosphate Royalties Trust (No 3)
[2017] VSC 284
•26 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2015 03354
| PAUL BANNON | Plaintiff |
| v | |
| NAURU PHOSPHATE ROYALTIES TRUST | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2017, written submissions filed 28 March 2017, 7 April 2017, 12 April 2017 |
DATE OF RULING: | 26 May 2017 |
CASE MAY BE CITED AS: | Bannon v Nauru Phosphate Royalties Trust (No 3) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 284 |
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COSTS – Third party notice purporting to join Republic of Nauru set aside – whether Republic of Nauru a party to proceeding prior to order setting aside third party notice – whether Court has power to order costs – Foreign States Immunities Act 1985 (Cth) s 9; Supreme Court Act 1986 ss 3, 24; Fair Work Act 2009 (Cth) s 570; Supreme Court (General Civil Procedure) Rules 2015 r 11.04(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Rinaldi | Lander and Rogers |
| For the Defendant | No appearance | No appearance |
| For the Republic of Nauru | Mr S Ure | Ashurst |
HIS HONOUR:
On 4 August 2016, I delivered judgment setting aside a third party notice filed by the plaintiff purporting to join the Republic of Nauru (‘Nauru’) as a third party to these proceedings.[1] I concluded that Nauru is immune from the jurisdiction of the Supreme Court of Victoria in respect of the plaintiff’s third party notice.[2] Nauru now seeks its costs arising from the application to have the third party notice set aside.
[1]Bannon v Nauru Phosphate Royalties Trust (No 1) [2016] VSC 425.
[2]Ibid [22].
When delivering judgment on 4 August 2016, I raised with the parties a number of questions that may bear upon Nauru’s entitlement to costs.[3] In particular, I noted that a number of questions arise as to the impact of s 570 of the Fair Work Act 2009 (Cth). These same questions are likely to be the subject of consideration in the trial of the substantive proceeding in which Mr Bannon is pursuing a number of claims against the Nauru Phosphate Royalties Trust arising under the Fair Work Act. I gave Nauru the option of deferring its application for costs until the conclusion of the trial.[4]
[3]Transcript of Proceedings, Bannon v Nauru Phosphate Royalties Trust (Supreme Court of Victoria, S CI 2015 03354, McDonald J, 4 August 2016) T108 L16 – T109 L19.
[4]Ibid T110 LL5-18.
On 12 August 2016, Nauru’s legal representatives informed the Court via email that it intended to defer its application for costs until the conclusion of the trial. However, it reserved its right to apply for costs before this time should the trial not be completed before the end of 2016. At present the matter has still not been listed for trial.
A directions hearing relating to Nauru’s costs application took place on 20 March 2017. During the course of this hearing, Mr Ure, who appeared for Nauru, submitted that it is appropriate for Nauru’s costs application to be determined presently, notwithstanding that the trial is pending.[5] Mr Ure gave two reasons for this. First, Nauru’s agreement to defer its costs application was made on the expectation that the trial would be concluded by the end of 2016.[6] Second, Mr Ure submitted that s 570 of the Fair Work Act does not apply to Nauru by virtue of s 9 of the Foreign States Immunities Act 1985 (Cth) (‘Immunities Act’), and therefore it is not necessary to await the conclusion of the trial to determine the jurisdictional questions arising under the Fair Work Act.[7] Mr Ure submitted that the effect of s 9 of the Immunities Act is that Nauru never became a ‘party’ to this proceeding within the meaning of s 570 of the Fair Work Act.[8]
[5]Transcript of Proceedings, Bannon v Nauru Phosphate Royalties Trust (Supreme Court of Victoria, S CI 2015 03354, McDonald J, 20 March 2017) T1 LL16-30.
[6]Ibid.
[7]Ibid T4 LL3-22.
[8]Ibid.
Both parties agreed that the question raised by Mr Ure could be dealt with on the papers.[9] The parties were ordered to file written submissions addressing the following questions:
(a)Is the Republic of Nauru not a party to proceeding No S CI 2015 03354 by reason of s 9 of the Foreign States Immunities Act 1985 (Cth) and/or the holding in Bannon v Nauru Phosphate Royalties Trust (No 1) [2016] VSC 425?
(b)If the Republic of Nauru is not such a party, can the Court make a costs order in its favour under s 24 of the Supreme Court Act 1986 (Vic) or otherwise?[10]
[9]Ibid T18 L7, T23 L21.
[10]Order of McDonald J dated 20 March 2017.
Both of these questions should be answered in the affirmative. By reason of s 9 of the Immunities Act, Nauru has never been a ‘party’ to these proceedings. Section 570 of the Fair Work Act is therefore no impediment to Nauru recovering the costs it incurred in its application to have the plaintiff’s third party notice set aside. Further, the Court has power to make a costs order in favour of Nauru pursuant to s 24 of the Supreme Court Act notwithstanding that it is not a ‘party’ to the proceedings.
The impact of s 9 of the Immunities Act
Section 570 of the Fair Work Act provides:
570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State of Territory) in relation to a matter arising 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) or section 569 or 569A.
(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; or
(c)the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
Section 9 of the Immunities Act provides:
9 General immunity from jurisdiction
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
Nauru submitted that s 570 of the Fair Work Act ‘creates a no-costs rule with defined limits’.[11] One such limit is that this section only applies to a ‘party’.[12] The plaintiff did not challenge this submission.
[11]Republic of Nauru’s Submissions on Preliminary Questions dated 28 March 2017, [5].
[12]Ibid.
Section 570 does not create a no-costs rule in respect of non-parties. In Yirra Pty Ltd v Summerton,[13] the CFMEU sought leave to intervene in proceedings. Yirra Pty Ltd sought its costs of the CFMEU’s application to intervene, arguing that, at the time the application was made, the CFMEU was not a party to the proceedings and was not therefore protected from costs liability by virtue of s 824 of the Workplace Relations Act 1996 (Cth). This section was a predecessor to s 570 of the Fair Work Act. Graham and Tracey JJ held that, at the time of the application, the CFMEU was not a party and therefore was not protected from costs liability under s 824.[14] Yirra has been cited in relation to s 570 of the Fair Work Act for the proposition that the section does not apply to a non-party.[15]
[13](2009) 176 FCR 219 (‘Yirra’).
[14]Ibid [150], [155]-[156].
[15]Ashby v Slipper (No 3) (2015) 317 ALR 623, [80] (Mansfield, Siopis and Gilmour JJ).
The plaintiff submits that Yirra is to be distinguished from the circumstances of the present case because the CFMEU was not a party at the time of the application as it was required to seek leave to intervene as a party.[16] The plaintiff submits that this is to be contrasted to Nauru’s position, whereby it became a party either upon being served or by attending the proceedings.[17] I accept that the circumstances by which the CFMEU in Yirra was a non-party are different to those arising in the present case. Nevertheless, Yirra is authority for the proposition that s 570 of the Fair Work Act does not create a no-costs rule in respect of non-parties. Therefore, s 570 will not apply to Nauru if it was not a party at the time of the application to set aside the plaintiff’s third party notice.
[16]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [12].
[17]Ibid.
The question for determination is whether Nauru was a ‘party’ to the current proceedings for the purposes of s 570 of the Fair Work Act at the time of the application to set aside the third party notice.
I have already concluded when setting aside the plaintiff’s third party notice that Nauru is immune from the jurisdiction of the Supreme Court of Victoria in these proceedings by virtue of s 9 of the Immunities Act.[18] Nauru submits that the effect of the immunity conferred by s 9 is that Nauru is not, and was not at any point in time, a party to these proceedings.[19] I accept this submission.
[18]Bannon v Nauru Phosphate Royalties Trust (No 1) [2016] VSC 425, [22].
[19]Republic of Nauru’s Submissions on Preliminary Questions dated 28 March 2017, [13], [21].
In PT Garuda Indonesia Pty Ltd v Australian Competition and Consumer Commission,[20] the plurality of the High Court explained the effect of s 9 of the Immunities Act as follows:
[20](2012) 247 CLR 240 (‘PT Garuda’).
It was said in the joint reasons in Lipohar v The Queen that:
“‘Jurisdiction’ may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or ‘law area’or ‘law district’.”
Thus, a court may be seised of jurisdiction in the sense of the subject matter of a particular proceeding, whether it be an action in contract or tort at common law or, as here, for contravention of a statutory norm of conduct, or it be an appellate process of a particular kind, such as that identified in s 73 of the Constitution. Because, as Katz J pointed out in Khatri v Price, any Australian court is a court of limited jurisdiction in this sense, it has been said that the court must be satisfied that its jurisdiction has been properly invoked. So, in Cockle v Isaksenthis Court entertained argument by an intervener challenging the competency of an appeal in circumstances where both parties accepted that the appeal was competent.
However, in s 9 and elsewhere in the Act the term “jurisdiction” is used not to identify the subject matter of a proceeding, but the amenability of a defendant to the process of Australian courts. The notion expressed by the term “immunity” is that the Australian courts are not to implead the foreign state, that is to say, will not by their process make the foreign state against its will a party to a legal proceeding. Thus, the immunity may be understood as a freedom from liability to the imposition of duties by the process of Australian courts.[21]
[21]Ibid [15]-[17] (French CJ, Gummow, Hayne and Crennan JJ) (citations omitted) (emphasis added).
The plaintiff submits that PT Garuda is not authority for the proposition that Nauru is not a ‘party’ for the purposes of s 570 of the Fair Work Act. Rather, it submits that:
Whether, as a matter of legal jurisdiction in the sense of being subject to “the imposition of duties by the process of Australian Courts”, orders could ultimately be made against Nauru, Nauru was clearly a party for the purposes of the procedures under the SC Act. In the context of a proceeding in the Supreme Court, Nauru is also a ‘party’ for the purposes of section 570 of the FW Act, if that provision applies. That is a question of temporal procedural designation, not ultimate legal liability. The third party notice was not a nullity – it was set aside by order of the Court and Nauru was the party who applied for that order made. [22]
[22]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [17] (citations omitted) (emphasis in original).
The plaintiff’s submission that Nauru was, and still is, a party to these proceedings for the purposes of s 570 of the Fair Work Act must be rejected. The plaintiff submits that there is a distinction between the ‘procedural designation’ of a State as a ‘party’ to proceedings, which it submits is not inconsistent with s 9 of the Immunities Act, and the ‘ultimate legal liability’ of a State. This submission cannot be reconciled with the statement of the plurality in PT Garuda that ‘[t]he notion expressed by the term “immunity” is that the Australian courts are not to implead the foreign state, that is to say, will not by their process make the foreign state against its will a party to a legal proceeding.’[23]
[23]PT Garuda (2012) 247 CLR 240, [17] (emphasis added).
The effect of s 9 of the Immunities Act is to exempt foreign States from court processes that would otherwise make the State a party to proceedings against its will. Therefore, any court process which purports to render a State a party will be ineffective, unless the State submits to the jurisdiction of the court. In seeking to set aside the plaintiff’s third party notice, Nauru has clearly demonstrated that it does not submit to the jurisdiction of this Court. Therefore Nauru is not, and was not at any point in time, a party to these proceedings due to its immunity under s 9 of the Immunities Act.
The plaintiff’s submission that the third party notice was not a nullity until set aside must be rejected. In Zhang v Zemin,[24] Spiegelman CJ stated (Allsop P and McClellan CJ at CL agreeing) that the effect of s 9 of the Immunities Act is that the immunity conferred by s 9 operates ab initio:
In my opinion, s 9 is intended to have effect prior to the purported exercise of a jurisdiction to which it is addressed. In the usual case, the issue of jurisdiction should be determined as a preliminary matter.
Where s 9 applies a court is deprived of jurisdiction to hear and determine the matter. Section 9 has effect prior to any “judgment, order or process of the court”. Section 9 is, as the Attorney submitted, self-executing.
…
The peremptory terms of s 9, and the whole of Pt II of the Act, suggest that the protection of s 9 is intended to apply in limine and not only after a “judgment, order or process” has issued from the court.
This conclusion is, in my opinion, reinforced by a purpose of the legislative scheme, one of which is to prevent foreign states from being subject to the necessity to participate in proceedings at any stage. That is one reason why s 9 is directed to the jurisdiction of the courts, rather than to the powers of the courts. Imposing a necessity on a foreign state to contest the issue of immunity in all circumstances is inconsistent with the attainment of that object.[25]
[24](2010) 79 NSWLR 513 (‘Zhang’).
[25]Ibid [33]-[36] (citations omitted).
As a judge of the trial division of the Victorian Supreme Court I should not depart from a decision of the New South Wales Court of Appeal on the interpretation of Commonwealth legislation unless convinced that the interpretation is plainly wrong.[26]
[26]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].
The Court of Appeal’s judgment in Zhang supports a finding that the third party notice purporting to join Nauru as a party to these proceedings was ineffective ab initio by virtue of s 9 of the Immunities Act. The third party notice did not have the effect that Nauru was a party to the proceedings prior to the notice being set aside. The plaintiff submits that a contrary conclusion is supported by Knight v FP Special Assets Ltd,[27] in which Mason CJ and Deane J cited with approval a statement by Lord Goff in Aiden Shipping Ltd v Interbulk Ltd[28] that the definition of ‘party’ was ‘so wide that it scarcely seems to provide an apt criterion on which to found a limitation on the jurisdiction to award costs’.[29]
[27](1992) 174 CLR 178, (‘Knight’).
[28][1986] AC 965 (‘Aiden Shipping’), cited in Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [18].
[29]Aiden Shipping [1986] AC 965, 979.
Aiden Shipping concerned the question of whether s 51(1) of the Supreme Court Act 1981 (UK), which conferred a broad discretion on the court to award costs, was subject to the implied limitation that costs orders were only to be made against parties. Lord Goff concluded that the breadth of the meaning of ‘party’ was one reason which weighed in favour of abandoning the implied limitation that costs could only be awarded against a party.
Knight concerned the question of whether s 58 of the Supreme Court Act 1867 (Qld), which conferred a broad power on the Supreme Court to award costs, should be subject to the same implied limitation that was in issue in Aiden Shipping – that is, whether costs orders could only be made against parties. In the passage referred to by the plaintiff, Mason CJ and Deane J cited the above passage from Lord Goff’s judgment in Aiden Shipping and noted that the same comment may be made about the circumstances in Knight.[30] Therefore, their Honours concluded that s 58 of the Supreme Court Act was not subject to an implied limitation that costs could only be awarded against parties.[31]
[30]Knight (1992) 174 CLR 178, 191-2.
[31]Ibid 192.
These authorities are of limited utility to the present case. The issue arising from s 9 of the Immunities Act and PT Garuda is not whether ‘party’ is defined narrowly or broadly but rather whether s 9 is a jurisdictional barrier to Nauru being a party to the current proceedings.
The plaintiff further submitted that this Court should adopt the dissenting judgment of Spender ACJ in Yirra, where his Honour held:
[A] non-party to the substantive proceedings, who is heard in an interlocutory proceeding in connection with the principal proceedings, is to be treated as a party for the purposes of s 347(1) (the precursor to s 855 [sic s 824] of the [WR] Act), both for the interlocutory proceeding, and for the appeal from the judgment made on the interlocutory proceeding.[32]
[32]Yirra (2009) 176 FCR 219, [95].
Nauru submits that this statement is of no binding force as it is the very basis upon which Spender ACJ dissented from the majority.[33] The majority held that the CFMEU was not a ‘party’ to the proceedings at the time of application and therefore was not protected from costs liability under the predecessor to s 570.[34] Nauru submits that this is an implicit rejection of the principle in Spender ACJ’s dissent that a non-party may in some circumstances fall within the scope of the no-costs rule in s 570.[35] I accept Nauru’s submissions on this point.
[33]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [7].
[34]Yirra (2009) 176 FCR 219, [150], [155]-[156].
[35]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [8].
The parties’ submissions dealt in some detail with the question of the processes by which a person may become a ‘party’ for the purposes of s 570 of the Fair Work Act. The plaintiff submits that Nauru is a ‘party’ either by virtue of s 3 of the Supreme Court Act 1986 (Vic) or by the operation of r 11.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[36] Section 3 of the Supreme Court Act is as follows:
[36]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [8]-[11].
3 Definitions
(1) In this Act –
…
party includes every person served with notice of or attending any proceeding, whether named on the record or not;
The plaintiff submits that Nauru is therefore a ‘party’ for the purposes of the Fair Work Act because it was served with a third party notice and attended the proceeding to have the third party notice set aside.[37] Nauru submits that it is impermissible to define ‘party’ for the purposes of s 570 of the Fair Work Act with reference to the definitions section of the Supreme Court Act.[38]
[37]Ibid [10].
[38]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [4]-[5].
Rule 11.04 of the Supreme Court (General Civil Procedure) Rules is as follows:
11.04 Filing and service of third party notice
(1)A claim by third party notice shall be commenced by filing a third party notice in the Court whereupon the third party shall become a party to the proceeding.
(2) A third party notice shall be filed and served on the third party in the same manner as originating process is filed and served on a defendant.
The plaintiff submits that Nauru therefore became a party upon the filing of the third party notice.[39] Nauru submits that r 11.04 does not govern the construction of the Fair Work Act.[40] It submits further that in any event, Nauru is immune from the Court’s jurisdiction by virtue of s 9 of the Foreign States Immunities Act.[41]
[39]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [11].
[40]Republic of Nauru’s Submissions on Preliminary Questions dated 28 March 2017, [15].
[41]Ibid [16]-[20].
It is unnecessary for me to decide the question of whether the term ‘party’ in s 570 of the Fair Work Act should be construed by reference to s 3 of the Supreme Court Act or r 11.04 of the Supreme Court (General Civil Procedure) Rules. Whether these provisions would ordinarily bring a person within the scope of s 570 is not to the point. Nauru is immune from any process which would ordinarily render a person a ‘party’ to proceedings due to the application of s 9 of the Immunities Act. The immunity was engaged immediately upon Mr Bannon attempting to make Nauru a party to the proceedings. It is immaterial whether Nauru would ordinarily fall within the definition of ‘party’ to proceedings in the Supreme Court of Victoria for the purposes of s 570 of the Fair Work Act.
If Nauru has been subject to any process that would ordinarily render a person a ‘party’ for the purposes of s 570 of the Fair Work Act (such as the filing of a third party notice in accordance with r 11.04(1)), it is nevertheless immune from the effect of this process by virtue of s 9 of the Immunities Act. Shortly stated, the effect of s 9 of the Immunities Act is that immediately upon the immunity being engaged in the proceedings Nauru was not a party within the meaning of s 570 of the Fair Work Act.
Section 570 therefore has no application to Nauru in this proceeding.
The Court’s power to make costs orders in respect of non-parties
Section 24 of the Supreme Court Act provides:
24 Costs to be in the discretion of Court
(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
...
The plaintiff accepts that the broad discretion conferred upon the Court by s 24 includes the power to award costs for or against a non-party.[42] It concedes that should I conclude that Nauru is not a party for the purposes of s 570 of the Fair Work Act, as I have, the Court has the discretionary power to award costs in Nauru’s favour.[43]
It is appropriate to determine Nauru’s costs application notwithstanding that the trial is yet to occur
[42]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [21].
[43]Ibid [22].
In addition to addressing the two questions set out above, the plaintiff submitted that it is premature to determine Nauru’s costs application on two grounds. First, the defendant has put the Court’s jurisdiction to hear and determine matters arising under the Fair Work Act in issue.[44] The plaintiff submits that it is therefore appropriate to await the determination of this issue before considering whether the proceeding is governed by s 570 of the Fair Work Act.[45] Second, the plaintiff submits that awaiting the conclusion of the trial will allow the Court to be ‘better informed about Nauru’s involvement in the operation and decision making of [the defendant]’.[46]
[44]Ibid [5]-[6].
[45]Ibid.
[46]Ibid [7].
Nauru submits that it is inappropriate for the plaintiff to request the Court to delay a decision on Nauru’s costs application for four reasons.[47] First, it submits that the question of whether the Supreme Court of Victoria has jurisdiction over the matters arising under the Fair Work Act does not necessarily answer the question of whether s 570 of the Fair Work Act applies.[48] Nauru relies on Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland [No 2][49] for this proposition. Second, Nauru submits that the jurisdictional questions raised by the defendant will be immaterial in the event that the Court concludes that s 570 does not apply due to s 9 of the Immunities Act.[50] Third, Nauru submits that whilst it initially agreed to defer its costs application until the conclusion of the trial, this agreement was made on the understanding that the trial would be concluded by the end of 2016.[51] Nauru informed the Court that it may bring this application should the trial not be concluded by this date.[52] Finally, Nauru submitted that the plaintiff has failed to adduce any evidence of any ‘involvement’ by Nauru that may impact the Court’s discretion as to costs.[53]
[47]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [2]-[3].
[48]Ibid [2(a)].
[49](1997) 189 CLR 654 (‘McJannet’).
[50]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [2(b)].
[51]Ibid [2(c)].
[52]Ibid.
[53]Ibid [2(d)].
I am satisfied that it is appropriate for the Court to make a decision regarding this costs application notwithstanding that the trial has not yet occurred. I have concluded that s 570 of the Fair Work Act does not apply to Nauru by virtue of s 9 of the Immunities Act. Therefore, any finding by the Court as to whether it has jurisdiction in relation to matters arising under the Fair Work Act will have no bearing on this costs application.
I do not consider that Nauru’s initial agreement to delay this costs application should preclude it from recovering its costs notwithstanding that the matter has not gone to trial. In the email to the Court dated 12 August 2016, Nauru’s legal representatives expressly foreshadowed that this application would be brought before the trial should the trial date be later than anticipated.
Furthermore, in the absence of any evidence from the plaintiff as to Nauru’s ‘involvement’ in matters the subject of this proceeding, it is unclear how such ‘involvement’ could have a bearing on Nauru’s application for its costs.
Given my conclusion that s 570 does not apply to Nauru, it is unnecessary for me to discuss the implications of McJannet. I am satisfied that it is appropriate to consider Nauru’s costs application notwithstanding that the trial in this proceeding has not yet occurred.
Consideration of discretionary factors as to the grant of costs
The plaintiff submits that the Court should take into consideration, in the exercise of its discretion, that to order costs against the plaintiff would be contrary to the objectives of s 570 of the Fair Work Act.[54] It submits that ‘one of the purposes of section 570 of the FW Act is to protect the Plaintiff, as a party to the proceeding, from a costs order being made against him, unless he has instituted proceedings vexatiously or without reasonable cause or has caused the other party to incur costs by the first party’s unreasonable act or omission’.[55]
[54]Plaintiff’s Submissions on Preliminary Questions Regarding Costs Application by Republic of Nauru dated 7 April 2017, [23]-[25].
[55]Ibid [24].
As outlined above, I have concluded that s 570 of the Fair Work Act has no application to Nauru in the present case. It would therefore be inappropriate to take into consideration the objectives of that section in the exercise of the broad discretion conferred upon the Court by s 24 of the Supreme Court Act. Having succeeded in setting aside the third party notice Nauru is prima facie entitled to an order that the plaintiff pay its costs.
In its written submissions, the plaintiff requested the opportunity to make further submissions should the Court conclude that Nauru is not a party for the purposes of s 570 of the Fair Work Act.[56] Nauru submitted in reply that if the Court finds in favour of Nauru on both of the questions posed in the orders of 20 March 2017 the plaintiff could have no proper basis to resist a costs order.[57]
[56]Ibid [26].
[57]Republic of Nauru’s Submissions in Reply on Preliminary Questions dated 12 April 2017, [13].
I shall provide the plaintiff with an opportunity to file submissions, not exceeding 10 pages in length, as to why the Court should refrain from making a costs order in favour of Nauru. Nauru will be given an opportunity to respond.
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