Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36

The Full Court held that none of the Commissioner's alleged errors had merit. The primary judge did not purport to construe or state a test for "unreasonable act or omission" but properly assessed unreasonableness contextually. The primary judge did not apply Calderbank principles incorrectly, but considered the Commissioner's failure to offer costs in the circumstances after 6 December 2016. The primary judge also did not find that the Calderbank offer itself caused the respondents to incur costs; rather, the continued pursuit of the proceeding caused further costs. The costs judgment was not attended by sufficient doubt, so leave to appeal was refused. Because the leave application...

Jurisdiction
Australia
Judgment Date
04 March 2019
Procedural Posture
Application for Leave to Appeal a Costs Order / Full Court Application for Leave to Appeal Dismissed
Outcome
Application for leave to appeal dismissed; applicant ordered to pay the respondents' costs of and incidental to the application to be taxed failing agreement.
Legal Topics
['fair Work Act Costs Orders' 'unreasonable Act or Omission' 'calderbank Offer' 'leave to Appeal']
['employment & Industrial Relations' 'costs' 'appellate Procedure'] ['fair Work Act Costs Orders' 'unreasonable Act or Omission' 'calderbank Offer' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal a Costs Order / Full Court Application for Leave to Appeal Dismissed

Legal Issues

  1. 1 ['Whether the primary judge erred in the construction of the phrase "unreasonable act or omission" in s 570(2)(b) of the Fair Work Act 2009 (Cth).' "Whether the primary judge erred in finding that the applicant's Calderbank offer was an unreasonable act." "Whether the primary judge erred in being satisfied that the applicant's Calderbank offer caused the respondents to incur costs." 'Whether leave to appeal the costs order should be granted.']

Ratio Decidendi

The Full Court held that none of the Commissioner's alleged errors had merit. The primary judge did not purport to construe or state a test for "unreasonable act or omission" but properly assessed unreasonableness contextually. The primary judge did not apply Calderbank principles incorrectly, but considered the Commissioner's failure to offer costs in the circumstances after 6 December 2016. The primary judge also did not find that the Calderbank offer itself caused the respondents to incur costs; rather, the continued pursuit of the proceeding caused further costs. The costs judgment was not attended by sufficient doubt, so leave to appeal was refused. Because the leave application...

Court Disposition

Application for leave to appeal dismissed; applicant ordered to pay the respondents' costs of and incidental to the application to be taxed failing agreement.

Orders

  • ['The application for leave to appeal filed 22 August 2018 is dismissed.' "The applicant pay the respondents' costs of and incidental to that application to be taxed failing agreement."]