LEGISLATIVE PROVISION ON COSTS
5 Section 570 of the FW Act relevantly provides:
Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court… exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before FWA;
(ii) the matter arose from the same facts as the proceedings.
6 Section 569 and s 569A of the FW Act, concerning the right of Commonwealth and State and Territory Ministers to intervene in proceedings in relation to a matter arising under the Act, do not apply in the present proceeding. Nor is section 570(2) applicable in this case. Neither the CEPU nor any other respondent suggest that AIG commenced its application for judicial review of the Agreement vexatiously or without reasonable cause. Nor did any party argue that AIG, by an unreasonable act or omission, caused the other parties to incur costs. Nor have any submissions been made to the effect that a party unreasonably refused to participate in a matter before FWA.
7 AIG cites Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) [2012] FCAFC 103 and argues that in the present proceeding we should not depart from such a 'clear, persuasive, directly relevant, and recent authority'. In Australasian Meat Industry Employees' Union (No 2), the Full Court considered whether s 570 of the FW Act applied in a proceeding brought in the original jurisdiction of the Court where jurisdiction was conferred by s 562 of the FW Act. In their joint judgment, Jessup and Tracey JJ explained (at [16]) that because the 'right or duty sought to be enforced owed its existence to the provisions of the FW Act', notwithstanding that the Court also had jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth), the matter arose under the FW Act and s 570 of the FW therefore applied to preclude a costs order because the Court was not satisfied that the applicant had acted unreasonably or vexatiously. In our respectful view, this decision is clearly correct. AIG is also correct in distinguishing this situation from that in Construction, Forestry, Mining and Energy Union v CSBP Limited (No 2) (2012) 202 FCR 149 (for the same reasons identified by their Honours in Australasian Meat Industry Employees' Union (No 2) (at [17])). In the former instance, the Full Court was exercising appellate jurisdiction under s 24(1)(a) of the FC Act, not original jurisdiction vested by s 19 of that Act and s 562 of the FW Act.