Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

FRENCH AND MARSHALL JJ 1 On 15 August 2003, the Full Court dismissed the appeal by the Australian Industry Group ("AIG") from a judgment of Kenny J in respect of which AIG had been granted leave to appeal. The Full Court was constituted by French, von Doussa and Marshall JJ. At midnight on 15 August 2003, von Doussa J resigned his commission as a judge of the Court. 2 The joint reasons for judgment of French and von Doussa JJ and the separate reasons for judgment of Marshall J were published by Marshall J. After the publication of the reasons for judgment and the pronouncement of the Court's order, counsel for the first respondent ("the Union") sought an order for costs against the Commonwealth, pursuant to s471 of the Workplace Relations Act 1996 (Cth) ("the Act"). Counsel for the Union and counsel for the Minister for Employment and Workplace Relations ("the Minister") agreed to the filing of written submissions on the costs application. Counsel also consented to the Court constituted by French and Marshall JJ determining the costs application; see s14(3) of the Federal Court of Australia Act 1976 (Cth). In their written submissions counsel for the Union sought costs against the Commonwealth not only in respect of the appeal but in respect of the successful application by AIG for leave to appeal from the judgment of Kenny J. 3 The Union did not seek costs against AIG, doubtless because of s347(1) of the Act, which provides that: "A party to a proceeding (including an appeal) in a matter arsing under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause." 4 Section 471(1) of the Act permits the Minister to intervene in a proceeding under the Act, on behalf of the Commonwealth in the public interest. Under s471(3) the Minister, upon intervening, becomes a party to the proceeding. 5 Section 471(2) of the Act provides an exception to s347(1) in respect of costs that may be sought against the Commonwealth in respect of the Minister's intervention. That sub-section provides that: "If the Minster intervenes in a proceeding before the Court, the Court may, despite section 347, make an order for costs against the Commonwealth." 6 Counsel for the Union submitted that the usual rule that costs should follow the event was an appropriate one in the circumstances of this appeal. They contended, in effect, that the Union, as the successful litigant, should be entitled to costs against the Commonwealth in the absence of some special circumstances justifying the making of some other order. Counsel for the Union submitted that the Minister, on behalf of the Commonwealth, was an unsuccessful party who was amenable to an adverse costs order by virtue of s471(2) of the Act. 7 Counsel for the Minister submitted that the ordinary rule that costs should follow the event does not apply to interveners. Counsel referred to the judgment of Branson J in Johnston v Cameron [2002] FCAFC 301 at [19] in which her Honour said that there was no usual practice in the Court that costs should follow the event in respect of successful interveners; see also Ruddock v Vadarlis [2001] FCA 1865, (2001) 188 ALR 143, at [53] per Beaumont J. It was contended that the corollary of that proposition is that there is no rule that a successful party is entitled, ordinarily, to recover some or all of its costs from an intervener when the result of the proceeding is contrary to the position advanced by the intervener. 8 Counsel for the Minister relied upon the judgment of the High Court of Australia in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. In O'Toole, the Commonwealth had intervened before this Court and the High Court in support of an unsuccessful party. The successful respondent sought costs against the Commonwealth pursuant to s78A(2) of the Judiciary Act 1903 (Cth), which provided that: "Where the Attorney-General of the Commonwealth or of a State intervenes in proceedings in a court under this section, the court may, in the proceedings, make such order as to costs against the Commonwealth or the State, as the case may be, as the court thinks fit." 9 At 311 in O'Toole, the High Court (cor: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said that: "It is only in special circumstances that it is appropriate for the Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party have been increased by the intervention." 10 In O'Toole, the Court found that special circumstances existed. It noted at 311 that: "…it was the Commonwealth which obtained the removal of the cause into this Court so that it could intervene and challenge the correctness of the answers favouring the respondent. It has failed in that challenge. In our view, it is appropriate that an order be made that the Commonwealth pay the costs of the respondent of the proceedings in this Court, including the costs of the present application. In so far as the proceedings in the Federal Court are concerned, the appropriate order is that the Commonwealth pay the costs of the respondent of those proceedings to the extent, if at all, to which they were increased by the intervention of the Commonwealth in that court." 11 In respect of the appeal, the Union has not demonstrated that special circumstances exist which require the making of a costs order against the Commonwealth. Further, it has not been shown that the costs of the Union were increased to any material extent by the intervention of the Minister. The appeal was heard within one sitting day. It would have required a sitting beyond the usual lunch time adjournment even if the Minister had not been represented. 12 I accept the submission of counsel for the Minister that her client's participation only minimally lengthened the hearing time of the appeal. Further, as counsel pointed out, only two paragraphs of the written outline of submissions of counsel for the Union were in direct response to previously prepared and filed written submissions on behalf of the Minister. 13 I also see no basis upon which costs should be awarded against the Minister in respect of his intervention in the application by AIG for leave to appeal. That application for leave to appeal succeeded. The Union did not seek an order from the Full Court which heard the appeal that the leave granted, by a differently constituted Full Court, should be revoked. In any event, the participation of the Minister in that application appears not to have materially increased the costs of the Union in opposing the application for leave. 14 I do not consider it necessary to address the question of whether costs should not be ordered against the Commonwealth having regard to the public interest nature of the Minister's intervention. In my view the Minister will invariably consider that if he intervenes in a proceeding arising under the Act he will only do so in the public interest as he perceives it. The existence of s471(2) of the Act tends against the submission that the public interest nature of an intervention will be relevant to the refusal to make an adverse costs order against the Commonwealth. 15 I would order as follows: The application of the first respondent for costs against the intervener (on behalf of the Commonwealth), in respect of the appeal and the application for leave to appeal, be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices French and Marshall.