Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)

The Fair Work Building Industry Inspectorate initiated proceedings against the Construction, Forestry, Mining and Energy Union, which were subsequently appealed by the Inspectorate. The appeal pertained to the determination of costs, specifically whether the Inspectorate was entitled to costs following a partial success on appeal. The court was required to determine the appropriate order regarding costs, considering the partial success and the broader public interest in the clarification of the law. Additionally, the court had to decide whether to issue a costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) to the Union, given the public interest served by the appeal's outcome.

The court examined the principles governing the award of costs in the context of a partial success on appeal, noting that there was no single 'event' for costs to follow. The court emphasised the importance of balancing the partial success of the appeal with the broader public interest served by the clarification of the law. It found that there were no factors that would disentitle the Union from receiving a costs certificate, as the appeal succeeded on a question of law and served the public interest.

In its decision, the court held that each party should bear their own costs in relation to the appeal. However, it recognised the public interest in the Union's appeal and granted a certificate stating that it would be appropriate for the Attorney-General to authorise a payment to the Union in respect of the costs incurred by them in relation to the appeal. This decision ensures that the Union's efforts in clarifying the law were recognised, while also maintaining the principle that each party bears their own costs in the absence of a clear event warranting a costs order.