FEDERAL COURT OF AUSTRALIA
Descon Group Australia Pty Ltd v Rodd (No 2) [2024] FCA 390
Appeal from: Application for leave to appeal: Wavish v Descon Group Australia Pty Ltd [2022] FedCFamC2G 912 File number(s): VID 741 of 2022 Judgment of: MCELWAINE J Date of judgment: 19 April 2024 Catchwords: COSTS – form of order following a successful appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) to award indemnity costs – order of primary judge varied – application for costs of the application for leave to appeal and appeal– where appeal relates to a matter arising under s 570 of the Fair Work Act 2009 (Cth) – no submissions advanced as to why costs order should be made pursuant to s 570(2) of the Act – no order for costs of the application for leave to appeal and appeal Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) ss 28, 43
Cases cited: Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCA 64; 202 FCR 149
Descon Group Australia Pty Ltd v Rodd [2023] FCA 1494
Drummond v Canberra Institute of Technology (No 2) [2023] FCA 422
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 9 Date of hearing: Determined on the papers Solicitor for the First Applicant: Kanther Law Solicitor for the Second Applicant: Irish Bentley Lawyers Solicitor for the Respondent: Hall & Willcox ORDERS
VID 741 of 2022 BETWEEN: DESCON GROUP AUSTRALIA PTY LTD (ACN 625 771 075)
First Applicant
IRISH BENTLEY LAWYERS
Second Applicant
AND: STEPHEN RODD
Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The First Applicant shall pay the Respondent’s costs of and incidental to matter no. MLG3698 of 2020 on an indemnity basis from the date the cross-claim was instituted.
2.The Respondent is authorised to pay from the funds held in trust by the Respondent's solicitors which were paid pursuant to the Order of this Court on 7 July 2023:
(a)to the first applicant the sum of $20,000; and
(b)to the second applicant the sum of $20,000.
3.There be no order as to costs for the applications for leave to appeal and appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
For reasons published on 29 November 2023, I dismissed the amended application of Descon Group Australia Pty Ltd for leave to appeal costs orders made by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) but allowed the separate application made by Irish Bentley Lawyers, upheld its appeal and set aside the costs orders made against it: Descon Group Australia Pty Ltd v Rodd [2023] FCA 1494. I made orders for the determination of consequential applications on the papers. I have received submissions from the respondent and a minute of consent orders…
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- Case
- [2024] FCA 390
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether it should make an order for the costs of the application for leave to appeal and the appeal itself, particularly in light of the fact that no submissions were advanced as to why such an order should be made under section 570 of the Fair Work Act 2009 (Cth). The court noted that the primary judge had ordered costs on an indemnity basis from the date the cross-claim was instituted, and there was no reason to depart from that order. The court held that there was no basis for an order for the costs of the application for leave to appeal and the appeal.
The court varied the primary judge's order by removing the provision for the costs of the application for leave to appeal and the appeal. It held that there should be no order as to costs for the applications for leave to appeal and appeal, as no submissions were made to justify such an order. The court confirmed that the First Applicant would pay the Respondent’s costs of and incidental to matter no. MLG3698 of 2020 on an indemnity basis from the date the cross-claim was instituted, and authorised the Respondent to pay from the funds held in trust by the Respondent's solicitors the sum of $20,000 to each of the applicants. The court dealt with the entry of orders in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The First Applicant shall pay the Respondent’s costs of and incidental to matter no. MLG3698 of 2020 on an indemnity basis from the date the cross-claim was instituted.
2. The Respondent is authorised to pay from the funds held in trust by the Respondent's solicitors which were paid pursuant to the Order of this Court on 7 July 2023:
(a) to the first applicant the sum of $20,000; and
(b) to the second applicant the sum of $20,000.
3. There be no order as to costs for the applications for leave to appeal and appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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