Construction, Forestry, Mining and Energy Union v Clarke

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FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143

COSTS – proceedings in a matter arising under Workplace Relations Act 1996 (Cth) – whether respondent’s conduct of proceedings involved an unreasonable act or omission.

WORDS AND PHRASES – “unreasonable act or omission”.

Federal Court of Australia Act 1976 (Cth) ss 24(1)(a), 25(5)
Workplace Relations Act 1996 (Cth) ss 170MN(1), 170NC, 170NF, 170NG, 178(1), 178(4), 824(1), 824(2)

Federal Court Rules O 52 r 18(1), O 52 r 22(3), O 62 r 3

Clarkev Powell, Molina & CFMEU (2005) 169 IR 1 related
Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226 related
Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224 related
Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291 related
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 related
Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 referred to
Commonwealth of Australia vConstruction, Forestry, Mining and Energy Union (2003) 129 FCR 271 considered
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 cited
Maritime Union of Australia v Geraldton Port Authority (2000) 94 IR 404 referred to
McAleer v The University of Western Australia (No 2) (2007) 161 IR 151 referred to
Jordan v Aerial Taxi Cabs Co-operative Society Ltd (No 2)(2001) 108 IR 263 referred to
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 cited
Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland (1997) 189 CLR 654 cited
Re Polites; Ex parte Hoyts Corporation Pty Ltd No 2 (1991) 173 CLR 78 referred to
Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 referred to
Shanahan v Australian Industrial Relations Commission (No 2) (2006) 236 ALR 612 referred to
Standish v University of Tasmania (1989) 28 IR 129 cited
Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 cited

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL and WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE

WAD 88 OF 2006

TAMBERLIN, GYLES AND GILMOUR JJ
14 AUGUST 2008
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 88 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Appellant

MICHAEL POWELL
Second Appellant

WALTER VINICIO MOLINA
Third Appellant

AND:

MARCUS THOMAS CLARKE
Respondent

JUDGES:

TAMBERLIN, GYLES AND GILMOUR JJ

DATE OF ORDER:

14 AUGUST 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The motion of the respondent dated 12 April 2007 be allowed;

2.Order 2 of 9 February 2007 in this matter, which provides that “The respondent pay the appellants’ costs of and incidental to the motion”, be set aside;

3.In lieu of Order 2 of 9 February 2007, there be no order as to costs;

4.The motion of the…

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Details
Case
[2008] FCAFC 143
Decision Date

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union v Clarke, the appellants and respondent were engaged in a dispute concerning costs associated with two separate applications before the court. The dispute stemmed from an earlier case where the respondent had alleged that the appellants had engaged in industrial action before the expiry of a certified agreement and had breached dispute resolution procedures. The Industrial Magistrate’s Court of Western Australia found in favour of the respondent and imposed penalties on the appellants, which were subsequently upheld on appeal by Nicholson J. The appellants then appealed to the Full Court, which dismissed the respondent's objection to the competency of the appeal. The respondent subsequently sought to set aside the order that required them to pay the appellants' costs, while the appellants filed a motion seeking costs for their appeal to the Full Court.

The primary legal issue before the court was whether the Full Court had the authority to set aside its earlier order requiring the respondent to pay the appellants' costs. Additionally, the court needed to determine whether the respondent or the appellants should bear the costs associated with the respective motions filed by each party. The court also had to consider whether the appellants were entitled to costs for their successful appeal to the Full Court.

The Full Court allowed the respondent's motion to set aside the order that required them to pay the appellants' costs, finding that the earlier order was not appropriate given the circumstances. The court emphasised that the decision to award costs should be guided by the principles of fairness and justice. The Full Court dismissed the appellants' motion for costs, concluding that the circumstances did not warrant an award of costs to the appellants. The court emphasised that costs should not be awarded merely because a party was successful in their appeal but should instead be based on the merits of the case and the conduct of the parties.

The court's final orders were that the earlier order for the respondent to pay the appellants' costs be set aside, with no order as to costs for the respondent's motion or the appellants' motion. This decision underscored the importance of fairness in cost orders and the need for the court to carefully consider the context and conduct of the parties when determining whether to award costs.

Orders

Orders of the court

1. The motion of the respondent dated 12 April 2007 be allowed;

2. Order 2 of 9 February 2007 in this matter, which provides that “The respondent pay the appellants’ costs of and incidental to the motion”, be set aside;

3. In lieu of Order 2 of 9 February 2007, there be no order as to costs;

4. The motion of the appellants dated 29 June 2007 be dismissed;

5. In respect of the judgment delivered on 8 June 2007, there be no order as to costs;

6. In respect of the respondent’s motion dated 12 April 2007 and the appellants’ motion dated 29 June 2007, there be no order as to costs.

Background

Background to the litigation

These reasons concern two notices of motion, one filed by the appellants and the other filed by the respondent. Each notice of motion relates to issues of costs in respect of two different applications before the Court.BACKGROUND The factual background to this matter has been summarised in an earlier decision of this Court: see Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224. We shall not reiterate it. The procedural background has also, up to a point, been summarised by earlier decisions of the Full Court: see Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291. It is useful briefly to repeat that background, and note recent developments. In 2004, the respondent alleged before the Industrial Magistrate’s Court of Western Australia that the appellants had (i) engaged in industrial action before the nominal expiry date of a certified agreement, contrary to s 170MN(1) of the Workplace Relations Act 1996 (Cth) (“the WR Act”), and (ii) breached a term of a certified agreement, namely the dispute resolution procedures, contrary to s 178(1) of the WR Act. The application was successful against each of the appellants, and monetary penalties were imposed under ss 170NF and 178(4) of the WR Act: Clarkev Powell, Molina & CFMEU (2005) 169 IR 1. The appellants appealed to this Court from the judgment of the Industrial Magistrate. The matter was listed before Nicholson J. A preliminary question arose as to whether it was permissible for Nicholson J to exercise as a single judge the appellate jurisdiction of the Court. An appeal from a judgment of a court can be heard either by a single judge or a Full Court if that court is one “of summary jurisdiction”: s 25(5) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”). Nicholson J held that the Industrial Magistrate’s Court was a court of summary jurisdiction, and accordingly concluded that it was open for the appeal to be heard either by a single judge or a Full Court: see Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226 at [30]. On 8 August 2005, the Chief Justice determined that the appeal should be heard by a single judge. Nicholson J subsequently heard and dismissed the appeal: CFMEU 149 IR 224. On 3 April 2006, the appellants appealed to the Full Court from the decision of Nicholson J. The respondent filed a Notice of Objection to Competency seeking to dismiss the appeal as incompetent, arguing that an appeal cannot lie to the Full Court from a decision of a single judge where that judge has already exercised the Court’s appellate jurisdiction. On 9 February 2007, the Full Court rejected this argument, dismissed the respondent’s Notice of Objection to Competency, and ordered that “[t]he respondent pay the appellants’ costs of and incidental to the motion”: CFMEU 156 FCR 291 (“the first Full Court decision”). On 12 April 2007, the respondent filed a notice of motion seeking orders that: 1. The Order of the Court in [the first Full Court decision] that “the respondent pay the appellants’ costs of and incidental to the motion” be set aside.2. In lieu thereof it be ordered that, in respect of the Respondent’s Notice of Objection to Competency of 2 June 2006, there be no order as to costs.The parties arranged for this notice of motion to be heard at the same time as we heard the substantive appeal from the decision of Nicholson J.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TAMBERLIN, GYLES AND GILMOUR JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN, GYLES AND GILMOUR JJ

Full text does not contain this section.