Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd (No 2) [2019] FCAFC 114

File number:

NSD 414 of 2019

Judges:

RARES ACJ, JAGOT AND BROMWICH JJ

Date of judgment:

5 July 2019

Legislation:

Fair Work Act 2009 (Cth) ss 443, 570

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99

Date of hearing:

Determined on the papers

Date of last submissions:

4 July 2019

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

No Catchwords

Number of paragraphs:

3

Counsel for the Applicant:

Mr S Crawshaw SC

Solicitor for the Applicant:

Slater & Gordon Lawyers

Counsel for the First to Fourth Respondents:

Mr Y Shariff

Solicitor for the First to Fourth Respondents:

Seyfarth Shaw Australia

Counsel for the Fifth Respondent:

The fifth respondent filed a submitting notice save as to costs

ORDERS

NSD 414 of 2019

BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Applicant

AND:

DP WORLD SYDNEY LTD ACN 001 351 159

First Respondent

DP WORLD (FREMANTLE) LTD ACN 009 106 763

Second Respondent

DP WORLD MELBOURNE LTD ACN 000 049 301 (and others named in the Schedule)

Third Respondent

JUDGES:

RARES ACJ, JAGOT AND BROMWICH JJ

DATE OF ORDER:

5 JULY 2019

THE COURT ORDERS THAT:

1. The application of the first, second, third and fourth respondents for an order for costs under s 570(2) of the Fair Work Act 2009 (Cth) be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

On 30 May 2019, we dismissed the application for relief under s 39B of the Judiciary Act 1903 (Cth) and reserved our reasons that we delivered on 20 June 2019: Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99. When dismissing the application, we ordered a timetable if any party wished to apply for costs: DP World [2019] FCAFC 99 at [24].
In conformity with those orders, the first to fourth respondents (DP World) applied for an order under s 570(2) of the Fair Work Act 2009 (Cth) on the basis that the Construction, Forestry, Maritime, Mining and Energy Union had instituted the proceeding without reasonable cause. DP World argued that the Union’s challenges to the decisions of the Full Bench of the Fair Work Commission and the Deputy President were doomed to fail. DP World also argued that there was no real controversy as to the correct principles to be applied in the Commission arriving at a decision under s 443(5) of the Fair Work Act.

Consideration

We reject DP World’s application for costs. It was common ground that this proceeding was the first occasion that this Court has been asked to decide a matter involving the principles to be applied under s 443(5). Indeed, that is why the Chief Justice exercised his power to direct that the application in the original jurisdiction be heard by a Full Court. The application involved a question of general importance under the Fair Work Act. The fact that the Union’s challenges were unsuccessful does not mean that it was acting without reasonable cause in seeking judicial review in the circumstances.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Rares and Justices Jagot and Bromwich.

Associate:

Dated: 5 July 2019

SCHEDULE OF PARTIES

NSD 414 of 2019

Respondents

Fourth Respondent:

DP WORLD BRISBANE PTY LTD ACN 130 876 701

Fifth Respondent:

FAIR WORK COMMISSION

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) brought an application against DP World Sydney Ltd (DPWSL) and other respondents for an order under the Fair Work Act 2009 (Cth). The primary dispute concerned the respondents' application for costs under section 570(2) of the Fair Work Act. The matter was heard in the Federal Court of Australia, with Justice Bromberg presiding over the proceedings.

The central legal issues addressed by the court were whether the applicants were entitled to costs under section 570(2) of the Fair Work Act and, if so, the quantum of such costs. The court needed to consider the relevant provisions of the Act, the nature of the application, and the conduct of the parties involved in the dispute. Additionally, the court assessed the fairness and proportionality of the costs sought by the respondents.

Justice Bromberg ruled that the applicants were not entitled to the costs they sought under section 570(2) of the Fair Work Act. The court found that the application did not meet the criteria for such an order, primarily due to the nature of the proceedings and the conduct of the applicants. Consequently, the court dismissed the respondents' application for costs. The reasoning was grounded in the interpretation of the relevant statutory provisions and the principles of fairness and proportionality in the awarding of costs.

As a result of the court's decision, the application by the first, second, third and fourth respondents for an order for costs under section 570(2) of the Fair Work Act was dismissed. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders of the court

1. The application of the first, second, third and fourth respondents for an order for costs under s 570(2) of the Fair Work Act 2009 (Cth) be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established