Sunbuild Pty Ltd v Ramsay (No 2)

Case [2014] FCA 712


FEDERAL COURT OF AUSTRALIA

Sunbuild Pty Ltd v Ramsay (No 2) [2014] FCA 712

Citation: Sunbuild Pty Ltd v Ramsay (No 2) [2014] FCA 712
Parties: SUNBUILD PTY LTD v ANDREW RAMSAY, MICHAEL HUDDY, SCOTT VINK and DENNIS PETER MITCHELL
File number: NTD 7 of 2014
Judge: MANSFIELD J
Date of judgment: 3 July 2014
Date of hearing: Heard on the papers
Date of last submissions: 24 April 2014
Place: Adelaide
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 18
Counsel for the Applicant: A Wyvill SC
Solicitor for the Applicant: Squire Sanders
Counsel for the Respondents: W Friend SC
Solicitor for the Respondents: Hall Payne

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 7 of 2014

BETWEEN:

SUNBUILD PTY LTD
Applicant

AND:

ANDREW RAMSAY
First Respondent

MICHAEL HUDDY
Second Respondent

SCOTT VINK
Third Respondent

DENNIS PETER MITCHELL
Fourth Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

3 JULY 2014

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.On the application for leave to appeal by the applicants 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

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 7 of 2014

BETWEEN:

SUNBUILD PTY LTD
Applicant

AND:

ANDREW RAMSAY
First Respondent

MICHAEL HUDDY
Second Respondent

SCOTT VINK
Third Respondent

DENNIS PETER MITCHELL
Fourth Respondent

JUDGE:

MANSFIELD J

DATE:

3 JULY 2014

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. On 31 March 2014, I refused the applicant leave to appeal from the answers given to two separate questions heard and determined in relation to the construction and application of the Fair Work Act 2009 (Cth) (FW Act) by a Judge of the Court (in which the applicant was the respondent): see Sunbuild Pty Ltd v Ramsay [2014] FCA 308 (the leave to appeal decision) and Ramsay vSunbuild Pty Ltd [2014] FCA 54 (the primary decision). The question of costs of the application for leave to appeal was reserved.

  2. I made orders that the question of costs be heard on the papers. The exchange of the written material has now been completed. This judgment deals with that outstanding costs issue.

  3. The respondent to the application seeks costs of the application. For the reasons that follow, I refuse the respondent’s application for costs.

  4. Section 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) confers power to the Court to award costs. The Court has a wide discretion but is required to exercise its power judicially and in accordance with established principles.

  5. In this case, the general principle that costs would follow the event in the absence of special circumstances justifying some other order is modified by s 570 of the FW Act which provides:

    (1)A party to the proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered to pay costs incurred by…

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Sunbuild Pty Ltd v Ramsay (No 2) [2014] FCA 712
Case
[2014] FCA 712
Decision Date

CaseChat Overview and Summary

In the matter of Sunbuild Pty Ltd v Ramsay (No 2), the court was tasked with determining the appropriateness of awarding costs to the respondent, the Australian Workers’ Union, following the refusal of an application for leave to appeal. The applicant, Sunbuild Pty Ltd, had applied for leave to appeal certain determinations made in the original proceedings. The central issue for the court was whether the application for leave to appeal was brought without reasonable cause and prospects of success, which would justify an award of costs to the respondent.

The court considered the applicant’s argument that the application for leave to appeal was motivated by substantial legal issues that warranted consideration. It was noted that the application sought to address important questions regarding the operation of provisions in the Fair Work Act and equivalent legislation across various jurisdictions. The court found that the existence of factual disputes did not necessarily indicate that the application lacked reasonable cause or prospects of success. It was held that the applicant’s decision to appeal was not unreasonable given the significant legal issues involved.

The court further reasoned that the refusal of leave to appeal did not automatically imply that the application was brought without reasonable cause. The court cited the principle established in R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia, where it was held that a proceeding cannot be deemed to have been instituted without reasonable cause simply because the argument proves unsuccessful. Consequently, the court declined to make an adverse costs order against the applicant, maintaining that the overall circumstances did not justify such an order under section 570(2) of the relevant legislation.

The court concluded that while the application for leave to appeal was ultimately refused, the applicant’s decision to proceed was not unreasonable given the substantial legal issues at stake. Therefore, the respondent’s application for costs was dismissed, and no adverse costs order was made against the applicant.

Orders

Orders of the court

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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

The applicant’s alternative submission was that there were additional legitimate reasons concerning public interest which motivated the applicant to make the application for leave to appeal. This submission would rely on the Court’s ultimate discretion not to exercise the power to make adverse cost orders in any event.Consideration I accept the applicant’s submission that it would not be appropriate to award costs to the respondent on the basis the application for leave to appeal was refused simply because I found that there would be no substantial injustice suffered if the two questions were incorrectly answered. As I said previously, only factual disputes remain. I did not consider the legal merits of the applicant’s contention in my decision. I proceeded to refuse leave on the basis that there was no substantial injustice. The applicant will not be deprived of the opportunity to appeal those determinations once there had been a final judgment on the matter. In my view, it was not unreasonable for the applicant to make the application for leave to appeal as it concerned all the substantial legal issues that would be of relevance to this matter. It raised important issues as to the operation of provisions in the FW Act and the Work Health and Safety (Uniform Legislation) Act 2011 (NT) and its equivalent legislation in all jurisdictions but for Victoria and Western Australia. There were respectable arguments advanced that granting leave to appeal might provide an economically faster route to resolution of the proceedings, although I did not ultimately adopt that course for the reasons I gave. That I reached a firm view that leave to appeal should be refused does not lead me to the view that, when it was made, the application itself was brought unreasonably. I am not satisfied that having outstanding factual disputes is sufficient to conclude that the application was brought without reasonable cause and had no reasonable prospects of success. In R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, Gibbs J made the finding at 473:… this question should not be finally determine until the facts are fully explored. The respondent, the Australian Workers’ Union, has applied for costs on the ground that the proceeding was instituted by the prosecutor “without reasonable cause”….In my opinion a party cannot be said to have commenced a proceeding “without reasonable cause”, within the meaning of that section, simply because his argument proves unsuccessful. Given the important issues that were sought to be the subject of the appeal and that it was not considered for the purposes of refusing the application, I am not prepared to depart from the starting position as found by the Full Court in AWU that there ought to be no costs order by making the order sought by the respondent. The overall circumstances do not persuade me to the view that s 570(2) is enlivened. That is not to preclude the respondent, if it successfully resists the claims in the principal proceeding from at that time seeking costs in relation to them, and including in that event the costs of the application for leave to appeal.