Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 1239

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 1239

The applicant's failure, following the close of evidentiary hearings and preliminary indications from the Court, to offer to pay the respondents' costs incurred after 7 December 2016 was an unreasonable act that caused the respondents to incur further costs. Accordingly, s 570(2)(b) was enlivened, and the applicant should pay the respondents' costs incurred from 7 December 2016 until and including 10 March 2017, as well as the costs of and incidental to the application for costs.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Mark Travers; Third Respondent: Adam Hall
Jurisdiction
Australia
Judgment Date
07 August 2018
Procedural Posture
Employment & Industrial Relations—application Under the Fair Work Act / Costs Application Following Dismissal of Substantive Claim
Outcome
Application for costs by respondents granted in part; applicant ordered to pay certain costs as specified.
Legal Topics
Costs—fair Work Act S 570(2), Right of Entry—industrial Action, Conduct of Proceedings—reasonableness of Litigation, Costs Orders Following Settlement Offers
Employment Law Industrial Relations Costs—fair Work Act S 570(2) Right of Entry—industrial Action Conduct of Proceedings—reasonableness of Litigation Costs Orders Following Settlement Offers

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Mark Travers

Second Respondent

Adam Hall

Third Respondent

Procedural Posture

Employment & Industrial Relations—application Under the Fair Work Act / Costs Application Following Dismissal of Substantive Claim

Legal Issues

  1. 1 Whether the applicant should pay the respondents' costs under s 570(2) of the Fair Work Act 2009 (Cth)
  2. 2 Whether the applicant's conduct in prosecuting or continuing the application was unreasonable so as to enliven a costs order

Ratio Decidendi

The applicant's failure, following the close of evidentiary hearings and preliminary indications from the Court, to offer to pay the respondents' costs incurred after 7 December 2016 was an unreasonable act that caused the respondents to incur further costs. Accordingly, s 570(2)(b) was enlivened, and the applicant should pay the respondents' costs incurred from 7 December 2016 until and including 10 March 2017, as well as the costs of and incidental to the application for costs.

Court Disposition

Application for costs by respondents granted in part; applicant ordered to pay certain costs as specified.

Orders

  • The applicant pay the respondents' costs incurred from 7 December 2016 until and including 10 March 2017.
  • The applicant pay the respondents' costs of and incidental to the respondents' application for the costs of the proceeding.