Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd

THE COURT: 1 On 30 May 2019, we dismissed the application for relief under s 39B of the Judiciary Act 1903 (Cth) and reserved our reasons that we delivered on 20 June 2019: Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99. When dismissing the application, we ordered a timetable if any party wished to apply for costs: DP World [2019] FCAFC 99 at [24]. 2 In conformity with those orders, the first to fourth respondents (DP World) applied for an order under s 570(2) of the Fair Work Act 2009 (Cth) on the basis that the Construction, Forestry, Maritime, Mining and Energy Union had instituted the proceeding without reasonable cause. DP World argued that the Union's challenges to the decisions of the Full Bench of the Fair Work Commission and the Deputy President were doomed to fail. DP World also argued that there was no real controversy as to the correct principles to be applied in the Commission arriving at a decision under s 443(5) of the Fair Work Act.

Consideration 3 We reject DP World's application for costs. It was common ground that this proceeding was the first occasion that this Court has been asked to decide a matter involving the principles to be applied under s 443(5). Indeed, that is why the Chief Justice exercised his power to direct that the application in the original jurisdiction be heard by a Full Court. The application involved a question of general importance under the Fair Work Act. The fact that the Union's challenges were unsuccessful does not mean that it was acting without reasonable cause in seeking judicial review in the circumstances. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Rares and Justices Jagot and Bromwich.

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