Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate

Submissions 5 It was common ground that s 570 of the Fair Work Act 2009 (Cth), referred to in s 43 of the FCA, did not apply. 6 The question was whether s 824 of the Workplace Relations Act 1996 (Cth) (WR Act) applied, to the effect that the appeal was a proceeding in respect of which that Act provided that costs should not be awarded. 7 Section 824 was in the following terms: 824(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must 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. (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs. (3) In subsections (1) and (2): "costs" includes all legal and professional costs and disbursements and expenses of witnesses. 8 It was not suggested that the proceedings were instituted vexatiously or without reasonable cause or that a party to the proceeding had unreasonably caused another party to the proceeding to incur costs in connection with the proceeding. 9 It was also common ground that the BCII Act contained no provisions that costs should not be awarded, either at all or subject to restrictions. Costs have in the past been awarded in relation to proceedings in matters arising only under that Act. 10 The appellants submitted that the primary judge was exercising the original jurisdiction of the Federal Court in relation to a determination arising under s 38 of the BCII Act that was conferred generally by s 75(1) of that Act. The proceeding in the Full Court was an appeal brought pursuant to s 24(1)(a) of the FCA. The grounds of appeal related to the findings of the primary judge determining that contraventions of s 38 of the BCII Act had occurred. Although relief was also sought in the original proceeding for breaches of the WR Act, those breaches were consequential in the sense that they were all dependent upon there being a finding of unlawful industrial action as defined by s 38 of the BCII Act. The Court was therefore free to exercise its discretion under s 43(1) of the FCA on the ordinary principles governing awards of costs because the source of the appellate jurisdiction was not conferred by the FW Act, so s 570, referred to in s 43 of the FCA, had no application and because there was no provision in the BCII Act which provided that costs should not be awarded. 11 The respondent submitted that the primary proceeding, and the proceeding on appeal, involved alleged contraventions by the appellants of s 38 of the BCII Act and ss 494 and 719 of the WR Act. The alleged breaches of the WR Act were not merely "consequential" upon alleged contraventions of s 38 of the BCII Act. In any event the test under Jordan v Aerial Taxi Cabs Co-operative Society Ltd (No 2) (2001) 115 FCR 21 (Jordan) was unrelated to that concept. Many employees had been found liable for the unlawful industrial action which occurred. It was not alleged that the appellants personally took industrial action; they were alleged to have been involved in the taking of that industrial action by the employees. Therefore the two WR Act matters were not consequential upon the unlawful industrial action under the BCII Act. The WR Act aspects of the proceeding were not "any mere side-wind" as referred to in Jordan at [9]; they constituted two of the three combined causes of action. Therefore this was a "matter" arising under the WR Act. The contraventions comprising the combined causes of action arose from the same set of facts and the Full Court was not required to sever those parts of the claim concerning the BCII Act from those concerning the WR Act for the purposes of assessing costs. In Alfred v Wakelin (No 3) (2009) 179 IR 76 (Wakelin) the Court held, in a case involving both the BCII Act and the WR Act, that s 824 of the WR Act precluded the making of a costs order. 12 In their purported reply, as we have said, the appellants referred to CSBP Ltd (No 2) and submitted that the same reasoning applied to s 824(1) of the WR Act which was in almost identical terms to s 570 of the Fair Work Act considered in that case. As such, it was submitted, the jurisdiction to award costs of the appeal was found in s 43 of the FCA. 13 In turn, in relation to CSBP Ltd (No 2) the respondent submitted that there was a contrast between the costs provision relevant in that case, s 570 of the FWA, which refers to "a court … exercising jurisdiction under this Act", and the costs provision in s 824 of the WR Act, relevant to the present case, which referred to "a matter arising under this Act". The respondent submitted that CSBP Ltd (No 2) should not be applied but Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, especially at [25]-[26], should be applied. The respondent also submitted that CSBP Ltd (No 2) was plainly wrong and should not be endorsed.

Consideration 14 It seems clear that the appeal is a proceeding in a matter under the WR Act. But the appeal is also a proceeding in a matter under the BCII Act. In each case a federal statute is relied upon as giving a right which is sought to be vindicated: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland (1997) 189 CLR 654 at 656-7. The first issue is whether the effect of s 824 of the WR Act is that the respondent may not be ordered to pay any of the costs of the appellants. If the answer to that question is "no", the second issue is whether, and if so, how, the costs of the appeal may or should be attributed by reference to the two Acts, the WR Act and the BCII Act. The third issue is whether the Full Court should deal with the costs at first instance of the part of the proceedings the subject of the appeal and, if so, how. 15 As to the first issue, there is conflicting authority as to how s 824 of the WR Act, or its predecessors, applies where a matter arises under two Acts. We turn to consider the relevant cases and we do so in chronological order. The parties' submissions referred to very few of them. 16 The starting point is Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, where Northrop J considered s 197A of the Conciliation and Arbitration Act 1904 (Cth), added by Act No. 138 of 1973. The section was in the following terms: 197A. A party to - (a) a proceeding before the Commission or the Registrar; (b) a proceeding, including an appeal, before the Court, or before a court of a State or Territory, in a matter arising under this Act; or (c) a proceeding before the High Court - (i) being an appeal from a judgment, decree, order or sentence of the Court or any other court under this Act; or (ii) being a proceeding in respect of an award proposed to be made, made or purporting to have been made, a decision proposed to be given, given or purporting to have been given, or any other act proposed to be done, done or purporting to have been done, under this Act or in respect of a failure to make an award, give a decision or do any other act that is required or permitted by this Act to be made, given or done, shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause. Justice Northrop said, at 272: Prior to 1973, in proceedings for an offence against the Act, costs normally were awarded against the unsuccessful party - a practice which is adopted in most courts. This followed from the exercise of the discretion conferred by s 116, a discretion which had to be exercised judicially. Section 197A severely limits that discretion. It deprives the court of the power to order costs except against a party which has instituted a proceeding "vexatiously or without reasonable cause". Even then the court retains the discretion conferred on it by s 116. The policy of s 197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court. Justice Northrop was not concerned with whether the proceeding was "in a matter arising under this Act" as it plainly was such a proceeding. 17 We note the decision of Evatt J in Naqvi v MBP (SA) Pty Ltd (1981) 36 ALR 379 but nothing is there said on the present question. His Honour followed and applied Heidt v Chrysler Australia Ltd (above). 18 Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 concerned whether an action to recover wages under an award was a proceeding in a matter arising under s 197A of the Conciliation and Arbitration Act. Justice Gray, with whom Keely J agreed, held that the proceeding was a proceeding in a matter arising under the Conciliation and Arbitration Act because the right to payment asserted by the appellant owed its existence to that Act. Further the enforcement of the right asserted by the appellant depended upon that Act. 19 In Geneff v Peterson (1986) 19 IR 40 Gray J refused an application for costs against the applicant. The respondents conceded that s 197A of the Conciliation and Arbitration Act was applicable. Justice Gray said that even if he were of the view that the fraudulent nature of the applicant's claim with respect to the major aspect of the case was such as to make that claim one which was instituted vexatiously or without reasonable cause, in his view he would still be debarred by s 197A from awarding costs in favour of the respondents because the section operated in relation to a "proceeding". There was only one proceeding before the court although that proceeding involved a number of separate claims, each of which might have been the subject of a separate proceeding. In the view of Gray J, it was impossible to split the claims within a proceeding for the purpose of the application of s 197A. 20 In Standish v University of Tasmania (1989) 28 IR 129, Lockhart J was considering s 347(1) of the Industrial Relations Act 1988 (Cth) which provided as follows: 347(1) A party to a proceeding (including an appeal) in a matter arising under this Act 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. Justice Lockhart said that s 347 replaced s 197A of the Conciliation and Arbitration Act 1904 (Cth) and referred to Heidt v Chrysler Australia Ltd, Naqvi v MBP (SA) Pty Ltd and Geneff v Peterson. In circumstances where he had held the application before the Court for interpretation of the award was incompetent and no question of interpretation of the award arose, his Honour held that although there was a proceeding before the Court it was not a proceeding which answered the description of "a proceeding… in a matter arising under this Act" within the meaning of s 347 of the Industrial Relations Act. It followed that s 347 was inapplicable to the case and Lockhart J ordered that the costs should follow the event, the applicants paying the costs of the respondent in the proceeding. Alternatively, Lockhart J held that if there was a proceeding in a matter arising under the Act it was instituted without reasonable cause. The claim for interpretation of the award was misconceived. Again in the alternative, if the proceeding answered the description of "a proceeding… in a matter arising under this Act", on the facts of the case that description would be apt only for so much of the proceeding as related to the interpretation of the award. Even assuming that the application for interpretation was reasonably brought, the essence of the case, namely, the application for particulars could not be regarded as "a proceeding … in a matter arising under this Act". Unlike Geneff v Peterson, in the present proceedings the most important claim, being the claim for particulars, could not have been brought separately under the Act. Section 347 did not restrict the Court's discretion as to costs in other proceedings. As the application for particulars was the central issue in the case, Lockhart J said he would order the applicants, if this alternative approach were correct, to pay three quarters of the respondent's costs of the proceeding. The order made was that the application be dismissed with costs. 21 In Thompson v Hodder (1990) 21 FCR 467 the Full Court said at 471: … in the light of the authorities relating to the word "matter", we doubt whether the Court should seek to discern within a single "proceeding" those elements which might have been brought otherwise than in a matter arising under the Act, for the purpose of attaching an order for costs to those elements. Provided that they are elements of the single justiciable controversy, in which the provisions of the Act are called in aid, by way of claim or defence, it may be said that they are in a matter arising under the Act. 22 In that case a rule to show cause was granted to the appellants, who sought orders against the respondents, pursuant to s 209 of the Industrial Relations Act. The appellants were members of the Australian Workers' Union (the Union). On 9 June 1989, von Doussa J made an interim order, restraining the respondents from proceeding further with the hearing of charges, pending the hearing and determination of the application. Justice Northrop delivered judgment in September 1989 and discharged the rule to show cause. In October 1989, the appellants filed a notice of appeal from the judgment of Northrop J. By notice of motion filed in October 1989, the appellants sought an order that the order of Northrop J be stayed, pending the hearing and determination of the appeal. This motion was heard by O'Loughlin J on 31 October 1989. Justice O'Loughlin dealt with the matter on the basis that what was sought, in substance, was a further interim order restraining the respondents from dealing with the charges. His Honour dismissed the motion. The appellants then sought leave to appeal from the order of O'Loughlin J. Their application for leave was heard by the Full Court as a matter of urgency. After the conclusion of argument by counsel for the appellants in support of the application for leave to appeal the Court refused leave to appeal, for reasons which were then stated. Counsel for the respondents thereupon applied for an order that the appellants pay the respondents' costs of the application for leave. 23 Counsel for the respondents argued that the application for leave to appeal was brought under the FCA, not under the Industrial Relations Act. The Court said at 469: This argument ignores the careful wording of s 347(1) of the Act. The prohibition on orders to pay costs is applicable not to a proceeding arising under the Act, but to a proceeding in a matter arising under the Act. There is much authority as to what constitutes a "matter" for the purposes of Ch III of the Constitution. In substance, a "matter" is "a single justiciable controversy". See the joint judgment of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 608. In the present case, the justiciable controversy between the parties embraces the question whether the respondents should perform and observe the rules of the Union by taking or refraining from certain actions in relation to the charges laid against the appellants. Orders for performance and observance of the rules accordingly are sought pursuant to s 209 of the Act. The alleged obligation to perform and observe the rules in that way is thus the "matter" upon which each proceeding between the present parties has been founded, namely the rule to show cause granted on 7 June, the interim orders made on 9 June, the appeal filed on 17 October, the motion for a stay of judgment filed on 25 October and the application for leave to appeal from the judgment of O'Loughlin J. Each of those steps is a "proceeding" as defined in s 4 of the Federal Court of Australia Act. It is unnecessary at present to determine whether, in the absence of a similar definition in the Act, the word "proceeding" in s 347(1) should receive a similar interpretation. It is enough to say that, on any view, an application for leave to appeal, even from an interlocutory judgment, is a proceeding in its own right. That proceeding is, however, one in the same matter as were each of the earlier steps. It is plain that the matter arises under the Act. It involves the assertion of a right provided by s 209 of the Act: see Poulos v Waltons Stores (Interstate) Ltd (1986) 15 IR 335 at 340; 68 ALR 537 at 543 in the judgment of Gray J, with whom Keely J agreed. The application for an order for costs therefore falls to be determined by reference to the phrase "without reasonable cause". 24 In Re Polites; ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78 at 93, the High Court held that s 347(1) of the Industrial Relations Act applied in circumstances where the prosecutor successfully applied for an order directing a Deputy President to hear and determine the proceedings in certain matters pending before the Australian Industrial Relations Commission. Since the order made was an order to enforce the statutory duty arising under Pt VI of that Act and that duty owed its existence to the Act, the controversy between the parties as to the enforcement of the duty was a matter arising under that Act. Poulos v Waltons Stores (Interstate) Ltd (above) and Hodder (above) were cited with approval by the High Court. 25 In Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439, the respondent relied on two claims. The first was pursuant to s 178 of the Industrial Relations Act for a penalty for breach of an award. In addition there was a claim made for damages for wrongful dismissal. The Full Court held that both claims arose under the industrial legislation. Justice Sheppard, with whom Heerey J agreed, said at 440-1 and 443 that the claim for wrongful dismissal was a common law claim for breach of contract but the claim depended upon there being a term of the contract of service which included the relevant provisions of the award of which the appellant was found to be in breach. The award owed its existence to the Industrial Relations Act and its predecessor, the Conciliation and Arbitration Act. The incorporation of the relevant provisions of the award did not depend on agreement but upon the award operating on the contract. Thus the claim was in reality one to enforce a right conferred by an award which was in force by reason of the operation of the Industrial Relations Act. Justice Gray held, at 446, that the subject of the appeal was a single "matter" being a controversy over the dismissal of the respondent by the appellant and the legal consequences of that dismissal. The matter manifested itself in the claims for a penalty and for damages. The matter arose under the Act because it depended for its existence upon the making of a binding award by an arbitral tribunal, exercising power under the Act. The enforcement of that award depended on s 178 of the Act. 26 Similarly, Byrne v Australian Airlines Ltd (1994) 47 FCR 300 does not deal with the case of two Acts of the Parliament although Gray J, with whom Black CJ agreed on this issue, said, at 367-8: The respondent's cross-appeal on the question of costs must fail. The law on this issue has been laid down clearly by the Full Court in Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 and Thompson v Hodder (1989) 21 FCR 467, both of which were cited with apparent approval by the High Court of Australia in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78 at 93, and in my judgment in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446. The "matter" in contention in the present case is the purported dismissals of the appellants and the legal consequences of those purported dismissals. That "matter" arises under the Act by reason of the reliance of the appellants on cl 11(a) of the award, which was made under the Act, and their invocation of the jurisdiction given by s 178 of the Act. Each application dealt with by Hill J was therefore a proceeding "in a matter" arising under the Act. Severance of different causes of action in the one proceeding is not possible for the purposes of s 347 of the Act. Nor is it legitimate to attempt to characterise a proceeding by reference to its predominant element. If the Act is called in aid, the proceeding is one arising in a matter under the Act, and there exists no power to award costs. For similar reasons, these appeals are proceedings in matters arising under the Act. This Court has no power to award costs. Beaumont and Heerey JJ, with whom Keely J agreed on this point, said, at 350-1: The respondent cross-appealed against the refusal of Hill J to make any order for costs in its favour. His Honour said: "I would, accordingly dismiss the application. Having regard to the provisions of s 347 of the Industrial Relations Act I think that no order should be made as to the costs of the present proceedings. Although the applicants have been unsuccessful, it could not be said that either had instituted the proceedings arising under that [Act] vexatiously or without reasonable cause. No submission was made by the Airline that I should find vexatiousness or lack of reasonable cause. The claim for damages being an associated matter, is subsumed under the rubric of a matter arising under the Industrial Relations Act and is not to be treated as a separate matter: Thompson v Hodder (1989) 21 FCR 467 at 469." … As has been seen, we are of the view that a breach of cl 11(a) was made out. It follows that, for our part, no question of an order for the costs of this aspect of the matter arises. However, in respect of the unsuccessful claims for damages made under the general law in the exercise of the Court's accrued jurisdiction, the respondent contends that s 347(1) is not applicable because, it says, a general law claim is, in truth, a separate matter, and does not "arise under" the Act; then the respondent says that the ordinary rule, that costs follow the event, should be applied. A similar argument to that now advanced by the respondent was rejected by a Full Court (Sheppard, Gray and Heerey JJ) in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439. In our opinion, the reasoning of Sheppard J (with whom Heerey J agreed) and of Gray J there was, with respect, correct. Since the appeal has been partly successful, it could not be said that either the institution of the proceedings at first instance or the appeal was brought "vexatiously or without reasonable cause". It must follow that the cross-appeal should be dismissed. 27 In relation to these last two decisions, we note that in Byrne v Australian Airlines Limited (1985) 185 CLR 410 the High Court held that the character of the right was not changed and remained statutory even where imported into the employment relationship. The High Court varied the orders of the Federal Court in Byrne. But that reasoning does not in our view affect the analysis for present purposes. It remained that the matter arose only under one Act. There was no order as to costs in the High Court. 28 In Grout v Gunnedah Shire Council (1995) 129 ALR 372, the applicant unsuccessfully claimed costs. He submitted that s 347 of the Industrial Relations Act did not preclude an order for costs in his favour as the claim for damages for wrongful dismissal pursued in the Court's associated jurisdiction was not or not part of a proceeding to which s 347 related. Justice Moore followed Bostik (above) and Byrne (above). He held that the respondent was a party to a proceeding in a matter that comprehended the statutory claim and the common law claim to damages and the immunity that the respondent had under s 347 precluded any order for costs being made against it in that proceeding. 29 In Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736, the primary judge had refused the appellant's application for the costs of the review of a decision by the judicial registrar on the basis that s 347 of the Industrial Relations Act meant that his Honour had no power to make a costs order. The Full Court of the Industrial Relations Court of Australia allowed the appeal. Chief Justice Wilcox, with whom von Doussa J agreed, held that the review of the decision of the judicial registrar was a proceeding within the meaning of s 347; the relevant matter was the appellant's claim that the termination of her employment contravened Division 3 of Part VIA of the Act; and because the controversy arose out of a claim of contravention of the Act the matter arose under the Industrial Relations Act. The principal proceeding was a proceeding "in" that matter. So also were each of the subsidiary proceedings that arose in the course of litigation of the principal proceeding. Thus the review application was a proceeding in a matter arising under the Act within the meaning of s 347 and the primary judge did have power to make a costs order. Justice North agreed that the appeal should be allowed, the decision refusing the application for costs be set aside, and that the application for costs be remitted to the trial judge for further determination. 30 In Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404; [2000] FCA 16, RD Nicholson J proceeded on the basis that he was bound by the decisions of the Full Court in Bostik (Australia) Pty Ltd v Gorgevski (No 2); Byrne v Australian Airlines Ltd; and Shackley v Australian Croatian Club Ltd to approach s 347 on the basis that it limited the power of the Court to award costs not only in respect of a statutory federal claim but also in respect of a common law claim, for tortious conspiracy, brought in the accrued or associated jurisdiction of the Court. The relevant respondents accepted that authority established that the severance of different causes of action in the one proceeding was not possible for the purposes of s 347 of the Act. 31 In Lee v Aerial Taxi Cabs Co-operative Society Ltd [2000] FCA 157, Gyles J dealt with a claim by the applicant under the Workplace Relations Act 1996 (Cth) and breach of contract, and a claim that the contract was an invalid restraint of trade at common law. Without any discussion of any statutory limitation on the power to award costs, Gyles J ordered: 1. The applicant's claim under the Workplace Relations Act 1996 (Cth) is dismissed. 2. The applicant's claim for breach of contract is dismissed. 3. The applicant's claim based upon common law restraint of trade is stood over until Friday, 24 March 2000, at 9.30am for the making of a declaration. 4. The respondent is to pay one-half of the applicant's costs of the proceedings. 32 The substantive decision was reversed in Aerial Taxi Cabs Co-operative Society Ltd v Lee (2000) 102 FCR 125; [2000] FCA 1628, the Full Court holding that the common law restraint of trade case failed. The relevant orders were, again without any discussion of any statutory limitation on the power to award costs, that the applicant pay the respondent's costs of the proceeding and the appellant's costs of its appeal. 33 In Jordan v Aerial Taxi Cabs Co-operative Society Ltd (No 2) (2001) 115 FCR 21, the applicant's application and amended Statement of Claim invoked s 127A of the WR Act and s 46 of the Trade Practices Act 1974 (Cth) (the TPA). Madgwick J rejected both of these claims. The respondent sought costs. Section 347 of the WR Act provided: (1) A party to a proceeding (including an appeal) in a matter arising 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. 34 Justice Madgwick declined to make an order for the respondent's costs. His Honour said the principal question was whether the proceedings in their entirety including both the WR Act and TPA claim can be considered as a "matter" arising under the WR Act. After referring to Fencott v Muller (1983) 152 CLR 570 at 606, Thompson v Hodder (1990) 21 FCR 467, Maritime Union of Australia v Geraldton Port Authority (No 2) and Lee v Aerial Taxi Cabs Co-operative Society Ltd at first instance, his Honour said at [15] that the authorities clearly indicated that a "matter" was to be given a broad interpretation and was to be approached from an examination of the facts giving rise to the conflict between the parties. Whether in the context of the Constitution or the WR Act, if a cause of action invoked a federal law or the WR Act as well as other laws bona fide asserted to be applicable to the facts giving rise to the justiciable controversy before the Court, there was a single matter. The majority of the hearing time was spent on the WR Act claim rather then the TPA cause of action. It could not be said that the WR Act aspect of the proceedings was any mere side-wind. Therefore, in his Honour's opinion, as indicated by the authorities, the entire proceedings were a matter arising under the WR Act. The applicant therefore got the benefit of s 347 subject to the qualifications there provided. We consider this decision more fully below. 35 In Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637; (2004) 148 FCR 145, Gyles J distinguished Maritime Union of Australia v Geraldton Port Authority (No 2) and concluded that a separate federal claim was not "in a matter arising under" the WR Act within the meaning of s 347. His Honour said at [60]-[62]: This can most clearly be seen when considering the position of Connect. There is not and there never was any Workplace Relations Act claim against it. The other separate federal claims against it have succeeded. The same point would arise in relation to a cross-claim to enforce a separate statutory cause of action filed in a proceeding instituted pursuant to the Workplace Relations Act. As counsel for Seven points out, it was necessary that the other claims be brought here in order to avoid an Anshun estoppel. It is certainly desirable in the interests of justice that all questions arising out of the same substratum of fact should be heard together. It is difficult to see why discrete federal claims that are pursued in the one proceeding should be affected by being caught up with a Workplace Relations Act claim even if arising out of the same general course of events. I conclude that a separate federal claim is not "in a matter arising under" the Workplace Relations Act within the meaning of s 347. I am not concerned with the accrued or associated jurisdiction. Thus, the claims for breach of the Copyright Act and breach of the Privacy Act are not caught by s 347. It follows that Connect is to pay the costs of the proceeding against it. MEAA is entitled to the full benefit of the s 347 immunity, but should pay the costs of the other successful causes of action. In my opinion that means that in these circumstances the costs to be borne by MEAA should only be those that can be identified as costs which would not have been incurred in relation to the s 347 cause of action in any event and are only attributable to the other successful causes of action. The assessment and taxation of costs will ensure that there is no doubling up of costs to be paid to Seven as a result of each order. 36 In Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 Black CJ said the case at trial included claims based upon s 52 and/or s 53B of the TPA and s 170CK(2)(a) and (f) of the WR Act. These claims were rejected by the trial judge and were not further pursued. The claim under the WR Act was, however, relevant to an issue about costs, for the trial judge awarded costs to the respondent notwithstanding s 170CS of the WR Act. 37 On the question of costs, Black CJ said at [94]-[95]: I therefore conclude that the object of s 170CS would be advanced by giving it the same operation as s 347, such that the whole of a proceeding of the present character is to be characterised as a proceeding under s 170CP. The circumstance that this might possibly permit a colourable application under s 170CP for the purpose of providing a protective cloak over a common law action does not point against this conclusion. Abuses of that nature do not appear to have emerged in relation to s 347 and, in any case, improperly joined proceedings can be severed and there may also be potential for the operation of the provisos. In these circumstances, I conclude that the learned primary judge was in error in awarding costs in favour of Mr Nikolich. Although the "no-costs" regime in Division 3 had a policy objective that primarily favoured the rights of employees, it naturally worked both ways so that an employer who was a party to a proceeding within a no costs regime likewise had the benefit of it. GSJBW was such a party. 38 Justice Marshall held at [164]-[165] that the proceeding before Wilcox J commenced as one under s 170CP of the WR Act. That Mr Nikolich later amended his application to include the other claims did not alter the fact that the proceeding was one under s 170CP. It followed that Goldman, as a party to a proceeding under s 170CP, should not have been ordered to pay the costs of the proceeding below. 39 Justice Jessup dissented in relation to the outcome of the substantive appeal but at [372] and following considered the question of costs on the basis that the respondent rightly succeeded at first instance. He said that the appellant argued on appeal that the proceeding as a whole was covered by s 170CS, and that costs could not be ordered in favour of the respondent notwithstanding that he succeeded on a point which arose in the accrued jurisdiction of the court. At [380] Jessup J concluded: For the above reasons, like Moore J in Grout (No 3) 59 IR 248, I take the view that the prohibition on costs in s 170CS(1) extended to every part of a proceeding whose statutory basis was s 170CP of the WR Act, including claims in the accrued jurisdiction which, save for being part of a single "matter" in the constitutional sense, were unrelated to rights and obligations arising under federal statutory law. In the present case, the powers of [sic] court to award costs to the successful respondent were, in my view, blocked by s 170CS of the WR Act. I would allow the appeal against the costs orders made [by] the trial Judge. 40 The decision in Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance was followed by Jessup J in Bahonko v Sterjov [2007] FCA 1341; (2007) 163 FCR 318. (We consider below what the Full Court said in rejecting the appeal.) The proceeding resulted from the consolidation of two proceedings brought by the applicant, being: (a) An application pursuant to s 170CP(1) of the WR Act alleging contraventions of ss 170CK(2) and 170CM of the WR Act and other unlawful or tortious conduct. (b) An application pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Act 1996 (Cth) (the HREOC Act) alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth) (the RD Act). 41 Section 170CS(1) of the WR Act provided: (1) Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party: (a) instituted the proceeding vexatiously or without reasonable cause; or (b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding. 42 Justice Jessup said at [8] and following: Accepting as I do that there is no presently relevant distinction between the approach to be taken under s 170CS and that which has been taken under s 347, it is, I consider, significant that Seven Network is, so far as my researches have disclosed, the only occasion upon which the court has decided a costs application by reference to the fact that the proceeding involved claims arising under different federal statutes, one of which was the WR Act. For that reason, Seven Network is specifically on point in the present circumstances. I should follow the judgment of Gyles J unless I am persuaded that it was plainly wrong … I could not take the view that Seven Network was, in presently relevant respects, plainly wrong. If there is to be a departure from the approach taken by Gyles J in that case, that step must, in my view, be taken by a Full Court. It follows that, as successful parties, the respondents are entitled to their costs, to the extent that they relate to so much of the proceeding as involved claims under the HREOC Act, for the period subsequent to, no less than for the period before, the consolidation of the two original proceedings. That conclusion gives rise to the problem of identifying which part of the respondents' costs subsequent to consolidation was referable to the proceeding originally commenced under the HREOC Act. … I could take the course of making a costs order which would leave it to the taxing officer to identify what costs the respondents incurred in relation to the HREOC Act claims, as distinct from the WR Act claims. However, given the relatively narrow compass of the facts of the case, I am reluctant to oblige the parties to undertake further, potentially costly, procedures, where a simpler, if less precise, formula would be adequate. From my observation, the issues which occupied the parties both at trial and during the interlocutory stages of the proceeding were either wholly undifferentiated as between the two statutory bases of jurisdiction, or about equally referable to each. In all the circumstances, I think that justice would be done, and that the true costs of the respondents with respect to the HREOC Act claims would be reflected, fairly albeit approximately, if I were to give them half their costs incurred subsequent to the consolidation of the proceedings. 43 In McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086; (2007) 164 FCR 591, the proceedings invoked the jurisdiction of the Court to deal with matters arising under federal legislation in two ways. Ms McDonald alleged breach of the Sex Discrimination Act 1984 (Cth) and breaches of the WR Act. Apart from claims arising under federal legislation Ms McDonald made claims in contract and tort. Justice Buchanan said at [18]: The approach in Seven Network Operations may not be easy to apply in some cases although, in the present case, it is reasonably clear that no costs should have been incurred in relation to allegations of breach of the WR Act from 4 October 2007 when all such claims were formally abandoned. As the matter proceeded thereafter on the basis of a separate federal claim (as well as the common law claims) I am satisfied that, whatever view is taken of the operation of s 824 of the WR Act, there is no restriction on the award of costs from that source on and from the abandonment of reliance on the WR Act, ie 4 October 2007. I should emphasise that I do not intend, by this conclusion, to suggest any departure from the principles stated by Nicholson J in Geraldton Port Authority. In the present case there were proceedings in a federal matter independently of the claims under the WR Act. When the claims under the WR Act were abandoned it became possible to differentiate between costs attributable to proceedings connected with the WR Act claims and costs in federal proceedings not (or no longer) connected with the WR Act claims. In a case where (initially) non-federal claims are associated only with WR Act claims, abandoning the latter may not disengage the operation of s 824 of the WR Act. As to the question of costs prior to the abandonment of claims under the WR Act, Buchanan J said at [27]: The first question is whether it is possible to disentangle and separate the federal statutory claims prior to this date. In my view it is not possible to do that. All those claims invoked the jurisdiction of this Court, even to the extent they were made without reasonable cause. Consideration of all the claims, statutory and common law, required reference to the same substratum of facts. Accordingly, in my view, all the claims, federal and non-federal, should be regarded as arising in the one matter. Prior to the date of abandonment of the claims under the WR Act it was not possible to distinguish proceedings relating to the WR Act claims from proceedings concerning the others. For the reasons given by Nicholson J in Geraldton Port Authority it follows that s 824 of the WR Act was, prima facie, engaged with respect to the whole of the proceedings (to the extent that s 666 did not apply independently). 44 In Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 the Full Court dismissed the appeal from the costs orders made by Jessup J. The Full Court said at [30]-[33]: The question whether costs with respect to separate federal claims within the original jurisdiction of the Court are affected by the restrictions on the award of costs appearing in the WR Act has not received prior attention by a Full Court. In Seven Network it was held that separate federal proceedings are not shielded from costs by s 347 of the WR Act (now s 824) notwithstanding earlier decisions of the Court to the effect that common law causes of action heard together with claims under the WR Act were so protected (see e.g. Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [61]-[70] and the cases there referred to). Seven Network was followed by the primary judge in the decision under appeal and in McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591. A separate federal claim does not come before the Court in its "accrued" or "associated" jurisdiction. It stands on its own, even if for convenience it is consolidated with other claims within the Court's jurisdiction for the purpose of hearing. The ordinary principles concerning costs apply in the absence of a statutory restriction applying to those proceedings. Such a restriction does not, in our view, arise from the administrative act of consolidating separate federal proceedings for hearing. In any event, so far as the present case is concerned we see no room for argument about the point. So far as s 170CS(1) of the WR Act (as it then was - see now s 666) is concerned, what was restricted was an award of costs in "a proceeding under section 170CP" (now s 663). No protection was given by s 170CS(1) to proceedings under the HREOC Act. Although it may be accepted that after consolidation the proceedings were, as the trial judge said, "wholly undifferentiated" that did not mean that the HREOC Act proceedings had become completely subsumed within the WR Act proceedings or vice versa. The extent to which that might happen in any particular proceedings would require assessment according to the circumstances of an individual case. In the present case the trial judge took the view that "justice would be done" and that true costs with respect to the HREOC Act claims would be reflected if half of the costs incurred subsequent to consolidation were awarded. Unless there was a legal bar to such a course that part of the primary judge's award of costs involved the exercise of a judicial discretion. No basis has been offered to interfere with it. The only contention advanced by the appellant was that the award of costs was contrary to the WR Act. We reject that contention. 45 In Thompson v Big Bert Pty Ltd t/as Charles Hotel [2008] FCA 792; (2008) 103 ALD 104 Buchanan J dismissed the applicant's claims under the WR Act and the HREOC Act. The respondent sought costs of the proceedings under the HREOC Act. It did not seek any costs of proceedings under the WR Act. His Honour said: [4] There is no barrier to the award of costs in relation to the proceedings under the HREOC Act (see Bahonko v Sterjov [2008] FCAFC 30 at [30]-[33]). Counsel for Ms Thompson argued that Bahonko v Sterjov (and Seven Network v MEAA (2004) 148 FCR 145, which it approved) was wrongly decided. The argument was based on a passage in the judgment of Black CJ in Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62 ('Nikolich') (at [93]-[94]). However, it is clear that his Honour's observations were concentrated upon the position concerning causes in the accrued jurisdiction. They were made in a context where his Honour had drawn attention to, and accepted, a submission that a distinction might be drawn between s 170CS of the Workplace Relations Act 1996 (Cth) (as it then stood), which limited costs in 'a proceeding under' that section and s 347 of that Act (as it then stood) which limited costs more generally in 'a proceeding in a matter' under the Act. His Honour did not refer to Seven Network v MEAA or discuss the position of independent statutory claims. In Nikolich the applicant did not succeed at trial on any statutory claim. He succeeded on a common law claim in the accrued jurisdiction. The point which arose in Bahonko v Sterjov, and in the present case, did not arise for consideration. [5] In Nikolich, Jessup J said (at [380]): '… I take the view that the prohibition on costs in s 170CS(1) extended to every part of a proceeding whose statutory basis was s 170CP of the WR Act, including claims in the accrued jurisdiction …' (Emphasis added.) [6] The qualification expressed in the passage I have emphasised is an important one. Jessup J was the trial judge in Bahonko v Sterjov. He applied Seven Network v MEAA. He was found to be correct to have done so. The restriction argued by counsel for Ms Thompson can not be accepted. … [8] … the respondent is, in my view, entitled to have its costs in the HREOC proceedings upon a conventional party-party basis. The claim for costs has been reduced to 75% where costs were incurred in respect of the HREOC proceedings and the WR Act proceedings at the same time. Counsel for Ms Thompson argued that no part of the costs of the proceedings should be regarded as arising from the HREOC Act claim. She contended, effectively, that all of the costs should be attributed to the WR Act claim. In my view that is not a realistic approach to the issue. 46 In A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 812, Gyles J said at [2]-[3]: The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act. This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim. There is another complication. The s 45D claim also overlapped with a claim in tort for inducing breach of contract. However, that claim is properly seen as associated with, or accrued in relation to, the Trade Practices Act claim rather than the Workplace Relations Act claim. Thus, Goldman Sachs JBWere Services Pty Ltd v Nikolich 163 FCR 62 is not applicable to it. 47 In Alfred v Wakelin (No 3) (2009) 179 IR 76 (Wakelin), Jagot J ordered that each party should bear its own costs of a notice of motion in the following circumstances. By notice of motion the national body and New South Wales branch of the Australian Workers' Union sought orders varying and, in part, setting aside the orders her Honour made in Alfred v Wakelin (No 2) (2008) 176 IR 430. Her Honour had found that the AWU, through the actions of its delegate contravened s 38 of the BCII Act, s 170MN of the WR Act and the John Holland Engineering Pty Ltd New South Wales SMP Certified Agreement 2005 on two occasions. Her Honour made consequential declarations and adjourned the issue of penalty for further directions and hearing. Her Honour dismissed the motion. The applicant sought an order for indemnity costs on the basis, in part, that: (i) there was no restriction on costs orders under the BCII Act, and (ii) s 824 of the current WR Act governs the issue of costs. The AWU agreed that s 824 governed the issue of costs. 48 In Qantas Airways Ltd v Transport Workers' Union of Australia (No 2) [2011] FCA 816; (2011) 211 IR 119 Moore J rejected a submission that costs could be awarded where there were two federal statutes. His Honour said at [205]: I think I can deal briefly with the respondents' argument that a costs order can be made in their favour in relation to Qantas' Trade Practices Act claim which did not succeed. It was submitted there was power [to] make a costs order (and it should be made because costs follow the event) because s 824(1) had no application to a claim under another federal law even if brought in proceedings making a claim under the Workplace Relations Act. Bahonko v Sterjov (2008) 166 FCR 415 was said to establish this limit on the reach of s 824. I disagree. The Full Court was, in that matter, dealing with a most unusual situation. It had before it two proceedings. Though they had been consolidated, they remained separate proceedings. Accordingly only one of the proceedings attracted the operation of the section limiting the power to award costs. The other was unaffected in the sense that the section had no application to it. It was in those latter proceedings that the unconstrained discretionary power to award costs could be invoked. The judgment stands for nothing more notwithstanding the width of some of the language used. The orthodox approach, as I apprehend it, is that s 824 operates in relation [sic] a proceeding in which any claim is advanced as part of a matter constituted by the entire controversy between the parties to that proceeding. I think so much is apparent from at least the judgment of Black CJ and Jessup J in Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 at [86] and [380] respectively. 49 In ACE Insurance Limited v Trifunovski (No 3) [2012] FCA 975, Perram J was dealing with claims under the WR Act and claims under the Fair Trading Act 1987 (NSW) and the TPA alleging misleading and deceptive conduct. His Honour noted at [27] that the Court has previously accepted that pendent common law claims brought by an applicant in a proceeding part of which is under the WR Act attracted the immunity in s 824(1) or its lineal predecessors: Maritime Union of Australia v Geraldton Port Authority (No 2). That did not decide either the position of costs arising from a defence or the position of claims in equity. He said that a defence to a proceeding pursued under the WR Act was an inseverable part of that proceeding and hence was subject to the immunity in s 824(1). He also said he did not think any reason presented itself for thinking that equitable claims should be treated differently to common law claims. However as to the various statutory counts pursued under the Fair Trading Act and the TPA this was not so. It was established that separate claims pursued under statutes other than the WR Act were not proceedings under that Act and hence did not attract the immunity in s 824(1): McDonald v Parnell Laboratories (Aust) (No 2). Justice Perram held that s 824(1) did not apply to the statutory counts, including a cross-claim. 50 We next turn to consider the position of appeals under the FCA. 51 In CSBP Ltd (No 2), the relevant statutory provision was s 570 of the FWA, relevantly as follows: 570(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 and 569A … 52 The Full Court held that the primary judge was exercising the original jurisdiction of the Court vested in it by s 562 of the FWA. In contrast, s 24(1)(a) of the FCA itself conferred appellate jurisdiction on the Federal Court. The appeal to the Full Court was not a proceeding in a court exercising jurisdiction under the FWA. The proceeding by way of the appeal to the Full Court was not conferred by s 562 of the FWA, but by force of s 24(1)(a) of the FCA. 53 The Full Court did not follow Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [52] and Barclay v Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 235 [83] as in each case, it was assumed, the point apparently not being argued, that s 570 of the FWA applied to an appeal to the Full Court against the decision of a single judge of the Federal Court exercising jurisdiction under the FWA. Because the point in question was not argued, neither Khiani nor Barclay stood in the way of the Full Court acting on the propositions that the relevant "proceeding" was the appeal to the Full Court, and that the Court's jurisdiction in respect of that proceeding was conferred by s 24(1) of the FCA. 54 The Full Court said that s 570(1) of the FWA, in speaking of "proceedings (including an appeal) in a court … exercising jurisdiction under this Act", was speaking, in terms, of proceedings including appeals brought in the Federal Court pursuant to ss 563(f) and 565 of the FWA from other courts and tribunals. The FWA made no provision for an appeal from a single judge of the Federal Court to a Full Court of the Federal Court. It was only s 24(1)(a) of the FCA which conferred jurisdiction on the Full Court to determine appeals from a single judge of the Federal Court. This distinction between the original and appellate jurisdiction of the Federal Court was of fundamental importance. 55 As to the appellant's reliance on s 562 of the FWA, conferring jurisdiction on the Federal Court in relation to any "matter arising under" the FWA, the Full Court said it may be accepted that the "matter", ie the controversy between the parties, arose under the FWA. The exercise of the appellate jurisdiction of this Court on appeal from a single judge of the Federal Court must not be confused with an appeal of the kind authorised by s 562 of the FWA from another tribunal to a single judge of the Federal Court. 56 We note that the High Court reversed the substantive decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647. In the later judgment on costs, Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42; (2012) 291 ALR 665, the parties accepted that s 570 of the FWA did not apply to the appeal to the High Court. The appellant in its submissions to the High Court on costs said that the form of language in s 570 was a conscious departure from the more generous prohibition in predecessor provisions, which extended to "matters arising under" the Act: Explanatory Memorandum to the Fair Work Bill 2009 (Cth) at [2228]-[2229]. The respondents in their submissions to the High Court drew to that Court's attention the decision of the Full Court of the Federal Court in CSBP Limited (No 2) (above). The High Court ordered that the respondents pay the costs of the appellant. 57 In respect to the respondent's submission that CSBP Ltd (No 2) should not be applied but Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, especially at [25]-[26], should be applied, we consider there is no conflict between those decisions given the different form of the legislation in issue in those cases. Clarke concerned s 824 of the WR Act and was directed to "a proceeding (including an appeal) in a matter arising under this Act…". In CSBP Ltd (No 2), the relevant statutory provision was s 570 of the FWA, set out above, which is directed to the different question of whether the court is exercising jurisdiction under the FWA. In this regard we refer to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42; (2012) 291 ALR 665 (above). 58 This review of the decided cases reveals agreement as to the position where there is a claim in the Court's accrued jurisdiction in a matter arising under the industrial relations legislation, but differences of opinion where two federal statutes are involved, including differences of opinion as to the reasoning in the two Full Court decisions, being Goldman Sachs JBWere Services Pty Ltd v Nikolich and Bahonko v Sterjov. Some of the decisions at first instance have proceeded without reference to other first instance decisions. In others, such as Wakelin, the point has been conceded. Bahonko v Sterjov appears to have overruled by implication Jordan v Aerial Taxi Cabs Co-operative Society Ltd (No 2) (2001) 115 FCR 21. 59 Because the reasoning is detailed, the decision in Jordan (2001) 115 FCR 21 provides a useful vehicle to consider the issue at the level of principle. In Jordan it was said that "matter" was to be given a broad interpretation and was to be approached from an examination of the facts giving rise to the conflict between the parties. Reference was made to Fencott v Muller (1983) 152 CLR 570 at 606. Whether in the context of the Constitution or the WR Act, if a cause of action invoked a federal law or the WR Act as well as other laws bona fide asserted to be applicable to the facts giving rise to the justiciable controversy before the Court, there was a single matter. The justification for such a broad interpretation of "matter" was that it is in the interests of the efficient and speedy administration of justice that there be no impediment to all proceedings arising from one justiciable controversy being dealt with together. Because both causes of action related to the one set of facts and because the justiciable controversy arose from the drivers' agreement that the applicant entered into with the respondent which was alleged to be in breach of s 127A of the WR Act and because it was as a result of this agreement that the applicant bound himself to accept the respondent's rules and by-laws allowing him to be disciplined in a manner alleged to be a breach of the TPA, the entire proceedings were a matter arising under the WR Act. The applicant therefore got the benefit of s 347 subject to the qualifications there provided. It followed that, as to both causes of action sued upon, it had to be proved that the proceedings were instituted without reasonable cause, before the discretion to award costs was enlivened (there is no question of vexatious litigation). Even where that could be shown to be the case, the Court's exercise of its discretion not to award costs may be informed by "the general policy of the Act, expressed in s 347": Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 at 326 per von Doussa J. 60 In our view, with respect, this approach takes consideration of the term "matter" out of the context of the scope of federal jurisdiction and its content and applies that consideration too readily to the different question of potential conflict between two Acts of the Parliament, here the BCII Act and the WR Act where federal jurisdiction is not in issue. There is here no question of accrued jurisdiction. The consequence was that there was in the judgment no consideration of how the two Acts could work together and whether, in that case, the TPA and the WR Act could operate harmoniously. There was also no consideration of whether it could be said that the proceeding was also in a matter arising under Acts of the Parliament, the TPA and the WR Act. 61 Because the two Acts have the same source, Northern Territory v GPAO (1999) 196 CLR 553 at [80], the provisions must first be construed in an endeavour "to produce a harmonious legal meaning to the provisions claimed to conflict": see Leeming M, Resolving Conflicts of Laws (Federation Press, 2011) pages 44-5. 62 Applying that principle, in our view consideration should be given to the strong implication to be derived from the BCII Act that in a proceeding in which the Court has jurisdiction under that Act, by s 43 of the FCA the Court has a statutory discretion to award costs. 63 On appeal, the Full Court has jurisdiction by virtue of s 24(1)(a) of the FCA, as CSBP (No 2) (2012) 202 FCR 149 shows. But as that case also shows this does not mean that the matter ceases to be a matter arising under industrial relations legislation where that is the language of the provision preventing or restricting the availability of a costs order. We do not accept the respondent's submission that CSBP (No 2) is clearly wrong or should not be followed. 64 Giving the provisions a harmonious operation, in our view where the matter arises under two Acts of the Parliament, s 824 of the WR Act does not apply to the entirety of the proceeding to limit the power of the Court to make a costs order. This does not mean that the Court does not have jurisdiction or that its jurisdiction is not federal jurisdiction. 65 The next issue is the consequence of this conclusion. In our view, it is not appropriate in the present appeal to adopt the commonly used approaches for deciding whether there should be an apportionment and if so the basis and extent of such apportionment. Thus it is not appropriate to use the tools whereby, in certain circumstances in the exercise of the judicial discretion to make a costs order, the Court considers the importance of an issue or the time spent on an issue on which the ultimately successful party has failed. The issue here is conceptually distinct from that task. This is not to say that a similar exercise would not be appropriate in other proceedings where the matter arises under two Acts with apparently conflicting costs provisions. For example, in another case, there may not be a common factual substratum and the claims, by number or otherwise, may be preponderantly referable to the WR Act or an Act with equivalent costs provisions. In those circumstances apportionment may well be relevant, as well as the relative substance of each issue. 66 It is preferable in the present case to face directly the consequence that there are two Acts under which the matter in the proceeding arises and the facts consist of a common substratum or undifferentiated whole, but with different legislative sources of claimed liability. It follows in our opinion that the uncontrolled aspect should be treated as constituting one half of the proceeding. 67 Thus we disagree, with respect, with the analysis and conclusion in Aerial Taxi Cabs Co-operative Society Ltd v Lee (2000) 102 FCR 125. We also disagree, with respect, with Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance to the extent that Gyles J said that the unsuccessful party was entitled to the full benefit of the s 347 immunity, and the costs to be borne by the unsuccessful party should only be those that could be identified as costs which would not have been incurred in relation to the s 347 cause of action in any event and were only attributable to the other successful causes of action. A similar approach was taken in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 812 where Gyles J said that full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim. 68 We also disagree, with respect, with the approach of Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591 that a "disentangling" approach should be adopted and in Thompson (2008) 103 ALD 104 where the claim for costs was reduced to 75% where costs were incurred in respect of the HREOC proceedings and the WR Act proceedings at the same time. 69 In these decisions, in our view, full effect is not given to the equality of the statutory regimes or to the principle of their harmonious operation. 70 It should be apparent that we also disagree, with respect, with the reasoning of Moore J in Qantas Airways Ltd v Transport Workers' Union of Australia (No 2) (2011) 211 IR 119, particularly his Honour's conclusion that the orthodox approach is that s 824 operates in relation to a proceeding in which any claim is advanced as part of a matter constituted by the entire controversy between the parties to that proceeding. 71 We prefer, as applicable to the circumstances of the present case, the approach of Jessup J in Bahonko, upheld by the Full Court on appeal, that the issues which occupied the parties were either wholly undifferentiated as between the two statutory bases of jurisdiction, or about equally referable to each and that, in all the circumstances, justice would be done, and the true costs of the respondents with respect to the non-WR Act claims would be reflected, fairly albeit approximately, if the respondents in Bahonko were awarded half their costs incurred subsequent to the consolidation of the proceedings. 72 In our view the appropriate order in the appeal is that the respondent pay one half of the appellants' costs of the appeal, as agreed or taxed, no costs being ordered in relation to the WR Act, there being no suggestion that the appeal was instituted vexatiously or without reasonable cause or that a party to the appeal had unreasonably caused another party to the appeal to incur costs in connection with the appeal, and the costs in relation to the BCII Act following the outcome of the appeal. 73 As to the costs at first instance, because the primary judge has not dealt with the costs issue it would be inappropriate for this Court to exercise for the first time that discretion. In addition there may be matters going to the exercise of that discretion of which this Full Court is not aware. Also the appeal was brought from only one confined part of the judgment and orders made by the primary judge. As a matter of discretion therefore we would remit to the primary judge the question of the costs at first instance of the proceedings involved in the appeal.

Conclusion 74 For these reasons, in our view the appropriate orders are that: the respondent pay 50 percent of the appellants' costs of the appeal, as agreed or taxed; remit to the primary judge the question of the costs at first instance of the proceedings involved in the appeal. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Logan and Robertson.