Flageul v Wedrive Pty Ltd T/A Wedrive & Ors (No 2)

[2022] HCASL 10

FLAGEUL

v

WEDRIVE PTY LTD T/A WEDRIVE & ORS (NO. 2)

[2022] HCASL 10
M48/2021

1. On 4 November 2021, under r 41.08.1 of the High Court Rules 2004 (Cth), we directed the Registrar to draw up, sign, and seal an order dismissing with costs the application for special leave dated 27 July 2021 in this matter. Prior to the order being sealed by the Registrar, the applicant brought this application under r 6.01 of the High Court Rules to reopen the application for special leave to appeal limited to the adverse order for costs or, alternatively, to reopen the application for special leave to appeal entirely.

2. The applicant relies upon s 570 of the Fair Work Act 2009 (Cth), which relevantly provides that a "party to proceedings ... in a court ... in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A". The applicant submits that since the circumstances of his special leave application do not fall within the proviso in ss 570(2), 569 or 569A, the consequence is that s 570 of the Fair Work Act 2009 (Cth) "applies to questions of costs, providing the reason why an adverse cost[s] order should not be made in the event that this Court were to dismiss [the] application for special leave to appeal". The applicant seeks to reopen the application for special leave primarily on the basis that s 570 of the Fair Work Act required this Court to make no order as to the costs of the application for special leave.

3. The applicant asserts that "a reasonable litigant in the position of the [a]pplicant could feel aggrieved at having been denied natural justice". And, in a submission which neglects the long‑established position of this Court that an application for special leave ordinarily "results in a decision which is not accompanied by reasons, or particularly by detailed reasons"[1], the applicant relies upon the absence of reasons in the disposition of the application for special leave explaining why s 570 of the Fair Work Act did not apply or did apply but was within the proviso to that section.

   [1]Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 217‑218. See also Coulter v The Queen (1988) 164 CLR 350 at 359‑360.

4. The respondents resist any reopening of the application on the basis that there are no exceptional or new circumstances that would permit the application to be reopened. That submission should not be accepted. A reopening of a special leave application for reasons of denial of procedural fairness does not require exceptional circumstances, at least not before an order has been sealed or perfected where a person, without fault on their part, has not been heard on an issue[2]. Nevertheless, as will be seen, the applicant was not denied procedural fairness. The applicant had every opportunity to make proper submissions about costs. He did not do so. That is sufficient to dispose of the application to reopen. But, for completeness, we also explain below why the content of the application has no merit.

   [2]Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 307‑308, 317, 322.

5. The applicant's very brief written submissions in his application for special leave, seeking no order for costs, were opposed by the respondents. The respondents argued that they should be awarded their costs if special leave were not granted because "[t]he power to apply for special leave to appeal is provided by s 35 and s 35AA of the Judiciary Act 1903 (Cth). Any appeal would be heard pursuant to s 73 of the Constitution. Accordingly, the application for special leave is not a matter which arises under the [Fair Work Act] and s 570 ... does not apply". The respondents also submitted that the costs of a special leave application, being an application to commence a proceeding, were in the discretion of the Court[3]. The applicant's submissions in reply were more substantial but omitted to address a number of central matters.

   [3]High Court Rules 2004 (Cth), r 50.01 read with rr 1.06 definition of "proceeding" and 40.01 definition of "application".

6. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2][4], this Court adopted the concession of the respondents that s 570 did not apply to an appeal in this Court. The Court did so following comments made by a member of the Court during the hearing of the appeal that the matter arose under s 73 of the Constitution consequent upon a grant of special leave and did not arise under the Fair Work Act[5].

   [4](2012) 248 CLR 549 at 551 [3]‑[5].

   [5](2012) 248 CLR 549 at 552 [9].

7. At the time of the Board of Bendigo decision, s 570 of the Fair Work Act was concerned with "[a] party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under [the Fair Work Act]" (emphasis added). The present s 570 concerns "[a] party to proceedings (including an appeal) in a court in relation to a matter arising under [the Fair Work Act]" (emphasis added). But no different result could arise for the purposes of a special leave application because, until the grant of special leave to appeal, "there are no proceedings inter partes before the Court"[6]. Section 570 contains no deeming provision that an application for special leave to commence a proceeding (which is not, in that sense, a "proceeding"[7]) should be deemed to be a "proceeding"[8]. Section 570 thus does not purport to alter the power of this Court to award costs under r 50.01 of the High Court Rules[9].

   [6]Collins v The Queen (1975) 133 CLR 120 at 122; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112].

   [7]Collins v The Queen (1975) 133 CLR 120 at 122; Coulter v The Queen (1988) 164 CLR 350 at 356‑357; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 643; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112].

   [8]cf High Court Rules, r 1.06 definition of "proceeding".

   [9]Read with High Court Rules, r 1.06 definition of "proceeding".

8. This conclusion is confirmed by s 560 of the Fair Work Act. Section 570 is contained in Div 4 in Pt 4‑2. The "Guide" to Pt 4‑2 in s 560 provides that "Division 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) and, in some cases, a court of a State or Territory". There is no mention of an application for special leave to commence a proceeding in the High Court, or even a mention of a proceeding in the High Court. Section 560 thus clarifies any uncertainty that might exist as to whether s 570 extends to a special leave application in this Court.

9. In some special leave applications that raise issues concerning the Fair Work Act, there may be good reasons for this Court to exercise its discretion in relation to costs[10] and to follow the approach in s 570 of the Fair Work Act. But it was not appropriate to do so on this special leave application in light of: (i) the lack of agreement to that course by the parties; (ii) the sparsity of proper submissions concerning the discretion that this Court has in relation to costs; (iii) the sparsity of proper submissions concerning any reason for exercising that discretion in favour of making no order as to costs; and (iv) the presence of substantial submissions concerning issues outside the Fair Work Act which are relevant to the costs discretion in this Court, even if they are not relevant in other Courts[11].

   [10]High Court Rules, r 50.01 read with r 1.06 definition of "proceeding".

   [11]Stanley v Service to Youth Council Inc[No 3] (2014) 225 FCR 357 at 363‑364 [25]‑[36]; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at 253‑254 [152]‑[158]; Joseph v Parnell Corporate Services Pty Ltd (2021) 307 IR 42 at 64‑65 [90]‑[92]. Cf Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [No 2] (2013) 209 FCR 464 at 484‑485 [64]‑[65]; El‑Debel v Secretary, Department of Immigration and Border Protection (2014) 141 ALD 611; Health Services Union v Jackson [No 5] [2015] FCA 1467.

10. A number of the applicant's written submissions on this application to reopen also sought to reagitate substantive issues raised on his application for special leave. We do not consider that anything in those submissions gives rise to a basis to reopen the application for special leave. If there were any basis to reagitate the issues upon which special leave was refused, the proper course would be for the applicant to file a fresh application for special leave to appeal, although a second application for special leave will, at best, only be entertained where exceptional circumstances are present[12].

    [12]Re Golding (2020) 94 ALJR 1014 at 1016 [5]‑[6], 1018 [11]; 384 ALR 204 at 205, 207‑208.

11. For these reasons, the application to reopen is refused. Contrary to the applicant's submissions on this application to reopen, s 570 of the Fair Work Act also does not apply to this application.

12. Pursuant to r 6.01.1 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

M.M. Gordon	J.J. Edelman
10 February 2022