Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd

The matter of Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd [2012] FWC 9813 involved an application by the respondent, BMD Constructions Pty Ltd, for costs under section 570 of the Fair Work Act 2009 (Cth). The applicant, the Construction, Forestry, Mining and Energy Union, had initiated proceedings against BMD Constructions in relation to an alleged unfair dismissal of an employee, Mr Rodney Richards. The substantive dispute was settled, and the matter was dismissed by consent on 14 December 2012. The court was required to determine whether the proceedings were instituted vexatiously or without reasonable cause, and whether an unreasonable act or omission by the applicant caused the incurring of the respondent's costs.

The court examined the procedural history of the proceedings, including the filing of the originating application, the certificate under section 369, the respondent's interlocutory application, and the subsequent dismissal by consent. The court also considered the affidavits and submissions on costs filed by both parties. The applicant argued that it had at least an arguable case and that its conduct was not unreasonable, while the respondent contended that the proceedings were instituted without reasonable cause and that the applicant's conduct warranted the displacement of the usual prohibition on costs. The court held that the applicant had an arguable case and that its conduct was not unreasonable, as the dismissal by consent did not reflect on the merits of the case. The court further found that the applicant's decision to discontinue the matter was reasonable, given that the substantive dispute had been settled.

In light of the above, the court dismissed the respondent's application for costs. The court held that the applicant had at least an arguable case and that its conduct was not unreasonable, as the dismissal by consent did not reflect on the merits of the case. The court further found that the applicant's decision to discontinue the matter was reasonable, given that the substantive dispute had been settled. The court also noted that the respondent's costs application was not supported by sufficient evidence to warrant the displacement of the usual prohibition on costs. Accordingly, the court dismissed the respondent's application for costs.