Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (No 2) [2007] FCAFC 145

Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (No 2) [2007] FCAFC 145

The application for costs was dismissed because the application for constitutional writs was commenced before 27 March 2006 and the relevant events also preceded that date, so the pre-reform s 347(1) costs regime applied. Dyno Nobel did not allege that the proceedings were instituted vexatiously or without reasonable cause, and the CFMEU's continuation of the proceedings after being invited to abandon them was not unreasonable. The later application for declaratory relief was an alternative claim in the same proceedings, was also governed by the pre-reform provision, did not unreasonably prolong the proceedings, and was not unreasonable merely because it was refused.

Jurisdiction
Australia
Judgment Date
07 September 2007
Procedural Posture
Application for Costs in a Workplace Relations Proceeding / After Dismissal of Application for Constitutional Writs and Application to Amend to Seek Declaratory Relief
Outcome
Application dismissed
Legal Topics
['costs in Industrial Proceedings' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'transitional Provisions Under Work Choices Amendments' 'constitutional Writs' 'declaratory Relief']
['workplace Relations' 'costs' 'administrative Law'] ['costs in Industrial Proceedings' 'proceedings Instituted Vexatiously or Without Reasonable Cause' 'unreasonable Act or Omission Causing Costs' 'transitional Provisions Under Work Choices Amendments' 'constitutional Writs' 'declaratory Relief']

Case Brief

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Procedural Posture

Application for Costs in a Workplace Relations Proceeding / After Dismissal of Application for Constitutional Writs and Application to Amend to Seek Declaratory Relief

Legal Issues

  1. 1 ["Whether the CFMEU should pay Dyno Nobel's costs from 28 February 2006 after being invited to abandon the proceedings" 'Whether continuation of the application for constitutional writs after Work Choices amendments was without reasonable cause or unreasonable' 'Whether the application for declaratory relief was a new proceeding instituted without reasonable cause for the purpose of s 824(1) of the Workplace Relations Act 1996 (Cth)' 'Whether pre-reform s 347 or s 824 of the Workplace Relations Act 1996 (Cth) governed the costs application']

Ratio Decidendi

The application for costs was dismissed because the application for constitutional writs was commenced before 27 March 2006 and the relevant events also preceded that date, so the pre-reform s 347(1) costs regime applied. Dyno Nobel did not allege that the proceedings were instituted vexatiously or without reasonable cause, and the CFMEU's continuation of the proceedings after being invited to abandon them was not unreasonable. The later application for declaratory relief was an alternative claim in the same proceedings, was also governed by the pre-reform provision, did not unreasonably prolong the proceedings, and was not unreasonable merely because it was refused.

Court Disposition

Application dismissed

Orders

  • ['The application for an award of costs be dismissed.']