Fair Work Ombudsman v Hu & Ors

[2020] HCATrans 68

[2020] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B53 of 2019

B e t w e e n -

FAIR WORK OMBUDSMAN

Applicant

and

TAO HU

First Respondent

MARLAND MUSHROOMS QLD PTY LTD

Second Respondent

TROY MARLAND

Third Respondent

NATIONAL FARMERS FEDERATION

Fourth Respondent

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 3 JUNE 2020, AT 9.45 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   On 14 February 2020, Chief Justice Kiefel and I dismissed an application for special leave to appeal in this matter.  The second and third respondents had not sought a costs order and none was made.  On 5 March 2020, the second and third respondents applied for orders that the Fair Work Ombudsman pay their costs of the application for special leave and of this application for a costs order.  Chief Justice Kiefel and I would allow the application in part.  I publish our reasons.

In matter number B53 of 2019 the orders of the Court are:

1.The applicant for special leave pay the second and third respondents’ costs of the special leave application.

2.The applicant for special leave pay the fourth respondent’s costs of preparation of its written submissions.

I direct that our reasons be incorporated into the transcript.

These proceedings, brought by the applicant (“the FWO”) in the Federal Court of Australia, concerned claims of contraventions of cl 15 of the Horticulture Award 2010 and s 45 of the Fair Work Act 2009 (Cth). The primary judge found that the labour hire agency for the second respondent, of which the third respondent is the sole director, had contravened those provisions but was unable to find that the second or third respondents were knowingly concerned in that contravention. The first respondent admitted each of the contraventions alleged by the FWO. The fourth respondent was granted leave to intervene in the proceedings. A Full Court dismissed the FWO’s appeal from that decision.

The second and third respondents appeared on the FWO’s application for special leave to appeal.  The fourth filed written submissions but did not appear on the hearing.  The first respondent did not participate at all.  The application was refused but no order for costs was made and no reference was made by the second and third respondents to the Court not having made an order.

The second and third respondents now apply for orders that the FWO pay their costs of the application for special leave and of this application. The fourth respondent seeks the costs of the preparation of its written submissions in connection with the application for special leave. It is not disputed that s 570(1) of the Fair Work Act does not prevent an order for costs being made with respect to an unsuccessful application for special leave.

Clearly enough it was an oversight on the part of the second and third respondents not to seek an order for costs when the order was made refusing the grant of special leave.  There is no reason why those costs, and those of the fourth respondent, should not be ordered now.  However, the second and third respondents are not entitled to their costs of this application which was necessitated by their oversight.  Although the FWO did not consent to their application, the position it took did not unreasonably increase the costs of the second and third respondents.  The FWO’s position, correctly, was that the costs decision was in the discretion of this Court.

The Court orders that the applicant for special leave, the FWO, pay the second and third respondents’ costs of that application and, in circumstances in which the fourth respondent, although not appearing at the hearing of the oral application, had been joined as a party and in written submissions sought its costs, the fourth respondent's costs of preparation of its submissions.

Please adjourn the Court.

AT 9.46 PM THE MATTER WAS CONCLUDED