Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd [2013] FCA 41

Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd [2013] FCA 41

The respondent did not establish any basis for a costs order under s 570(2). There was no reason to find that the applicant was actuated by a desire to harass the respondent. The applicant's position concerning the s 369 certificate and the breadth of the expression "in relation to the dispute" in s 371(1) was at least arguable, particularly in view of Shea. The applicant also had an arguable case, on the material apparently available when the proceeding was commenced, that Mr Richards fell within cl 2 of its Rules. The applicant's approximately ten working day period before advising discontinuance, and doing so two business days before the scheduled interlocutory hearing, was not...

Jurisdiction
Australia
Judgment Date
01 February 2013
Procedural Posture
Application for Costs Under S 570 of the Fair Work Act 2009 (cth) Following Settlement of a Substantive General Protections Proceeding / Determined on the Papers
Outcome
The respondent's application for costs was dismissed.
Legal Topics
['costs Under S 570 of the Fair Work Act 2009 (cth)' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'general Protections Court Application' 'standing of Union to Represent Industrial Interests']
['fair Work' 'costs'] ['costs Under S 570 of the Fair Work Act 2009 (cth)' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'general Protections Court Application' 'standing of Union to Represent Industrial Interests']

Case Brief

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Procedural Posture

Application for Costs Under S 570 of the Fair Work Act 2009 (cth) Following Settlement of a Substantive General Protections Proceeding / Determined on the Papers

Legal Issues

  1. 1 ['Whether the applicant instituted the proceeding vexatiously or without reasonable cause within s 570(2)(a) of the Fair Work Act 2009 (Cth).' "Whether the applicant's position about the s 369 certificate and s 371(1) of the Fair Work Act 2009 (Cth) was at least arguable." 'Whether the applicant had an arguable case that it was entitled to represent the industrial interests of Mr Rodney Richards under its Rules.' 'Whether any unreasonable act or omission by the applicant caused the respondent to incur costs within s 570(2)(b) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

The respondent did not establish any basis for a costs order under s 570(2). There was no reason to find that the applicant was actuated by a desire to harass the respondent. The applicant's position concerning the s 369 certificate and the breadth of the expression "in relation to the dispute" in s 371(1) was at least arguable, particularly in view of Shea. The applicant also had an arguable case, on the material apparently available when the proceeding was commenced, that Mr Richards fell within cl 2 of its Rules. The applicant's approximately ten working day period before advising discontinuance, and doing so two business days before the scheduled interlocutory hearing, was not...

Court Disposition

The respondent's application for costs was dismissed.

Orders

  • ["The respondent's application for costs be dismissed."]