Descon Group Australia Pty Ltd v Rodd (No 2)

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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:

  1. 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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Details
Case
[2024] FCA 390
Decision Date

CaseChat Overview and Summary

In the case of Descon Group Australia Pty Ltd v Rodd (No 2), the court was tasked with determining the appropriate costs order following a successful appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) that awarded indemnity costs. The primary judge had ordered that the costs of the cross-claim should be paid on an indemnity basis, but the nature and extent of the costs for the appeal were left to be determined. The First Applicant sought an order for costs of the application for leave to appeal and the appeal itself, while the Respondent opposed such an order.

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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