Nield v Mathieson (No 2)

[2014] FCAFC 86

FEDERAL COURT OF AUSTRALIA

Nield v Mathieson (No 2) [2014] FCAFC 86

Citation:	Nield v Mathieson (No 2) [2014] FCAFC 86
Appeal from:	Mathieson v South End Mixed Business [2013] FCCA 1749
Parties:	MARJORIE NIELD and KEITH GEORGE NIELD v BETH LENNESE MATHIESON
File number:	VID 30 of 2014
Judges:	TRACEY, BROMBERG AND MORTIMER JJ
Date of judgment:	24 July 2014
Catchwords:	COSTS - costs under the Fair Work Act 2009 (Cth) – application of s 570 of the Fair Work Act 2009 – where appellants unsuccessful at trial and on appeal
Legislation:	Fair Work Act 2009 (Cth) – s 570
Cases cited:	ACE Insurance Limited v Trifunovski (No 3) [2012] FCA 975 – cited Maritime Union of Australia v Geraldton Port Authority(No 2) (2000) 94 IR 404 – cited Nield v Mathieson [2014] FCAFC 74 – cited
Date of hearing:	Heard on the papers
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellants:	The Appellants did not appear
Solicitor for the Appellants:	Gaden and Green
Counsel for the Respondent:	The Respondent did not appear
Solicitor for the Respondent:	Becklegal

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 30 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARJORIE NIELD
First Appellant

KEITH GEORGE NIELD
Second Appellant

AND:

BETH LENNESE MATHIESON
Respondent

JUDGES:	TRACEY, BROMBERG AND MORTIMER JJ
DATE OF ORDER:	24 JULY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 30 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MARJORIE NIELD
First Appellant

KEITH GEORGE NIELD
Second Appellant

AND:

BETH LENNESE MATHIESON
Respondent

JUDGES:	TRACEY, BROMBERG AND MORTIMER JJ
DATE:	24 JULY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 19 June 2014 the Court dismissed an appeal from the Federal Circuit Court in this matter: see Nield v Mathieson [2014] FCAFC 74. The parties sought an opportunity to make submissions in relation to costs and agreed that the Court should be provided with and act on written submissions. Those submissions have now been filed and have been considered by the Court.

2. The parties are agreed that s 570(1) of the Fair Work Act 2009 (Cth) (“the Act”) operates to preclude the Court (even if it were minded so to do) from making an order for costs. This provision applies to proceedings, such as the present appeal, which were commenced after 1 January 2013.

3. Section 570(1) provides that “[a] party to proceedings (including an appeal) 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) …” (emphasis added). The parties accept that none of the exceptions provided for in s 570(2) of the Act arise on the appeal.

4. The principal basis on which the respondent succeeded at trial and on appeal was that she was entitled to be remunerated in accordance with the provisions of awards made under the Act and its predecessor. Alternative causes of action involving allegations of misleading and deceptive conduct on the part of the appellants and a quantum meruit claim were argued at trial and were relied on in a notice of contention filed in the appeal. Argument relating to these matters occupied very little time at trial and on appeal. The trial judge also ordered that the appellants repay to the respondent a sum of money which she had given to them. An appeal against this order was not pressed.

5. This appeal plainly related to a matter arising under the Act. The cause of action on which the applicants succeeded relied on the provisions of the Act which compelled compliance with awards made under it and its predecessor and prescribed remedies in the event of non-compliance. This was the cause of action which brought the proceeding within the jurisdiction of the Federal Circuit Court and the appeal within this Court’s jurisdiction. The other causes of action were all brought in the pendent jurisdiction of the Federal Circuit Court. They, nonetheless, formed part of a single justiciable controversy. In such circumstances, the predecessors of s 570(1) have been held to preclude awards of costs in proceedings in which a party seeks to enforce rights under the Act: see Maritime Union of Australia v Geraldton Port Authority(No 2) (2000) 94 IR 404 at 419-421 (R D Nicholson J) and the authorities there referred to; ACE Insurance Limited v Trifunovski (No 3) [2012] FCA 975 at [27]-[29] (Perram J).

6. In these circumstances we accept that s 570(1) of the Act applies to this appeal. There will, accordingly, be no order as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Bromberg and Mortimer.

Associate:

Dated:        24 July 2014