BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 138

The appeal was commenced before 1 January 2013 and thus the pre-amendment version of Fair Work Act 2009 (Cth) s 570 applied. There was no procedural defect invalidating the appeal or requiring a different outcome as any irregularity could be cured by s 51 of the Federal Court of Australia Act 1976 (Cth). Costs should follow the event in the absence of a statutory prohibition. The Full Court was not satisfied that CSBP No 2 was plainly wrong and its reasoning should be followed, so the limitation on costs in the amended s 570 did not apply to this appeal.

Parties
Appellant: BHP Coal Pty Ltd; Respondent: Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
15 October 2014
Procedural Posture
Appeal / Costs Determination After Appeal Judgment
Outcome
Costs awarded to Appellant
Legal Topics
Costs in Industrial Matters, Appellate Jurisdiction, Procedural Irregularity, Commencement of Appeal Under Court Rules
Industrial Law Practice and Procedure Costs in Industrial Matters Appellate Jurisdiction Procedural Irregularity Commencement of Appeal Under Court Rules

Case Brief

Summary, issues, holding and outcome

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Parties

BHP Coal Pty Ltd

Appellant

Construction, Forestry, Mining and Energy Union

Respondent

Procedural Posture

Appeal / Costs Determination After Appeal Judgment

Legal Issues

  1. 1 Whether the limitation on awarding costs under Fair Work Act 2009 (Cth) s 570 (as amended) applied to the appeal
  2. 2 When the appeal was 'commenced' for transitional provision purposes
  3. 3 Whether the failure to file a further notice of appeal after leave was fatal or a mere irregularity under s 51 of the Federal Court of Australia Act 1976 (Cth)

Ratio Decidendi

The appeal was commenced before 1 January 2013 and thus the pre-amendment version of Fair Work Act 2009 (Cth) s 570 applied. There was no procedural defect invalidating the appeal or requiring a different outcome as any irregularity could be cured by s 51 of the Federal Court of Australia Act 1976 (Cth). Costs should follow the event in the absence of a statutory prohibition. The Full Court was not satisfied that CSBP No 2 was plainly wrong and its reasoning should be followed, so the limitation on costs in the amended s 570 did not apply to this appeal.

Court Disposition

Costs awarded to Appellant

Orders

  • The respondent pay the appellant's costs of and incidental to the appeal and the application for leave to appeal.