Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd [2016] FCA 615

Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd [2016] FCA 615

The applicant failed to make prudent and reasonable enquiries before commencing proceedings against the incorrect party, causing the respondents to incur unnecessary costs. This enlivened the Court's discretion under s 570(2) of the Fair Work Act 2009 (Cth) to award costs to the first and third respondents for costs incurred prior to 20 May 2016. However, there was no breach by the respondents or their lawyers of their overarching obligations under the Federal Court of Australia Act, and no order for indemnity costs was warranted. The applicant's own application for costs was refused.

Jurisdiction
Australia
Judgment Date
03 June 2016
Procedural Posture
Application for Costs / Post Interlocutory (costs Determination After Amendment of Pleadings)
Outcome
Applicant to pay the first and third respondents' costs incurred prior to 20 May 2016; applicant's application for costs refused.
Legal Topics
['costs Orders' 'fair Work Act 2009 (cth) S 570' 'amendment of Pleadings' 'incorrect Respondent' 'federal Court Procedure']
['industrial Law' 'employment Law'] ['costs Orders' 'fair Work Act 2009 (cth) S 570' 'amendment of Pleadings' 'incorrect Respondent' 'federal Court Procedure']

Case Brief

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Procedural Posture

Application for Costs / Post Interlocutory (costs Determination After Amendment of Pleadings)

Legal Issues

  1. 1 ["Whether the applicant's naming of the incorrect respondent was 'without reasonable cause' under s 570(2)(a) of the Fair Work Act 2009 (Cth)" "Whether the making of the application against the incorrect party constituted an 'unreasonable act' under s 570(2)(b) of the Fair Work Act 2009 (Cth)" 'Whether the respondents breached ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth)' 'Whether costs should be awarded notwithstanding s 570(1) of the Fair Work Act 2009 (Cth)']

Ratio Decidendi

The applicant failed to make prudent and reasonable enquiries before commencing proceedings against the incorrect party, causing the respondents to incur unnecessary costs. This enlivened the Court's discretion under s 570(2) of the Fair Work Act 2009 (Cth) to award costs to the first and third respondents for costs incurred prior to 20 May 2016. However, there was no breach by the respondents or their lawyers of their overarching obligations under the Federal Court of Australia Act, and no order for indemnity costs was warranted. The applicant's own application for costs was refused.

Court Disposition

Applicant to pay the first and third respondents' costs incurred prior to 20 May 2016; applicant's application for costs refused.

Orders

  • ["The applicant pay the first and third respondents' costs incurred prior to 20 May 2016 as assessed consistently with these reasons." "The applicant's application for the payment of its costs be refused."]