Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) (No 2)

[2023] FCAFC 56

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) (No 2) [2023] FCAFC 56

Appeal from:

ABCC v CFMMEU (No 3) (The Botany Cranes Case) [2021] FCA 363

ABCC v CFMMEU (The Botany Cranes Case) (No 4) [2021] FCA 525

File number:

NSD 579 of 2021

Judgment of:

BROMBERG, MOSHINSKY AND BROMWICH JJ

Date of judgment:

14 April 2023

Catchwords:

PRACTICE AND PROCEDURE – costs – where appeal allowed – where appellant successful in relation to some, but not all, grounds of appeal – where the respondent submitted that costs should be determined on an issues basis – whether the Court should depart from usual order that costs follow the event

Cases cited:

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599

Caffitaly System S.P.A. v One Collective Group Pty Ltd (No 2) [2021] FCAFC 164

Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

8

Date of last submissions:

29 March 2023

Date of hearing:

Determined on the papers

Counsel for the Appellants:

Mr H Borenstein KC with Mr P Boncardo

Solicitor for the Appellants:

Taylor & Scott Lawyers

Counsel for the Respondent:

Mr MS White SC with Mr M Seck

Solicitor for the Respondent:

Herbert Smith Freehills

ORDERS

NSD 579 of 2021

BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Appellant

ROBERT KERA

Second Appellant

MICHAEL GREENFIELD (and others named in the Schedule)

Third Appellant

AND:

FAIR WORK OMBUDSMAN

Respondent

ORDER MADE BY:	BROMBERG, MOSHINSKY AND BROMWICH JJ
DATE OF ORDER:	14 APRIL 2023

THE COURT ORDERS THAT:

1.The respondent pay the appellants’ costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1. These reasons deal with the issue of costs following the judgment of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40, handed down on 15 March 2023. Since that judgment was handed down, and in accordance with the orders of the Full Court, the parties have filed written submissions, and responding written submissions, on the issue of the costs. These reasons should be read together with the 15 March 2023 judgment.

2. The issue of costs concerns only the costs of the appeal.  The appellants did not challenge the costs order made by the primary judge.  Accordingly, that costs order stands and we do not need to deal with the costs of the proceeding at first instance.

3. The competing positions of the parties regarding the costs of the appeal can be summarised as follows:

   (a)The appellants seek an order for costs in their favour on the basis of the usual order that costs follow the event.

   (b)The respondent contends that the appropriate order is that there be no order as to costs on the basis that the parties had mixed success on various issues.

4. The principles regarding costs are well established.  It is sufficient for present purposes to refer to the following summary of the applicable principles.  In Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158, the Full Court said at [9]-[11]:

   9Section 43(3)(e) of the Federal Court of Australia Act 1976 (Cth) provides that an award of costs may be made in favour of, or against, a party whether or not that party is successful in the proceeding. The approach usually taken is that costs follow the outcome of an appeal: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [6] per French CJ, Kiefel, Nettle and Gordon JJ; see also Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 at [303]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [66]-[68].

   10In Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370, Dowsett, Middleton and Gilmour JJ, after referring to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 and State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174, said at [11] that these decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs, but contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. These were identified as follows:

   One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.

   11After referring to the decision of Finkelstein and Gordon JJ in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107, Dowsett, Middleton and Gilmour JJ in Queensland North Australia then said at [18]:

   [Section 43 of the Federal Court of Australia Act] does not mention costs following the event. In Ruddock, Bowen Investments and Sportsbet, the Court proceeded on the basis that ordinarily, the successful party may reasonably expect to receive its costs, whether that outcome be described as costs following the “event” or otherwise. The question of costs is within the Court’s discretion. As we have said, relevant factors include the extent of a party’s success, the extent of its success or failure on individual issues and its conduct of the proceedings.

5. The above passage was approved by the Full Court in Caffitaly System S.P.A. v One Collective Group Pty Ltd (No 2) [2021] FCAFC 164 at [5].

6. In our view, applying these principles to the facts and circumstances of the present case, the appropriate order is that the respondent pay the appellants’ costs of the appeal.  The appellants were successful in having set aside all of the orders that were the subject of challenge in the amended notice of appeal.  While it is true that the appellants were not successful on all of the grounds of appeal, and abandoned several of the grounds of appeal, they were successful on the grounds that were the main focus of the appeal, namely grounds 1-4, 6-12 and 14-16.  In the circumstances of this case, we do not consider that the appellants’ lack of success on some other grounds (namely, grounds 21, 22, 25-27, 28, 37, 38 and 40) justifies a departure from the usual order that costs follow the event.

7. Further, we do not consider the fact that the appellants abandoned a number of grounds to justify a departure from the usual order.  With one exception, the grounds were abandoned when the appellants filed their written submissions.  Therefore, it may be inferred, they did not occasion significant costs for the respondent.  Further, some of those grounds were abandoned in light of the judgment of the High Court of Australia in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 (published on 13 April 2022), which had not been published at the time that the original notice of appeal was filed (on 16 June 2021).

8. For these reasons, we will make an order that the respondent pay the appellants’ costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg, Moshinsky and Bromwich.

Associate:

Dated:       14 April 2023

SCHEDULE OF PARTIES

NSD 579 of 2021
Appellants
Fourth Appellant:	RITA MALLIA
Fifth Appellant:	HOWARD BYRNES