The appeal judgment
15 On appeal, Cowdroy J recorded (at [31]):
31 The CFMEU in essence submitted that the first asserted right met the requisite constitutional criteria to be satisfied in s 494(2) of the FW Act by virtue of the breadth of the criteria contained in ss 494(2)(d)-(g): see [11] above. Mr Gittany argued that regardless of the breadth of the provisions in s 494(2), the primary judge correctly identified that the CFMEU only sought to rely on s 494(2)(a) before the FCCA, that being that the car park was occupied or otherwise controlled by a constitutional corporation.
16 His Honour concluded (at [35]-[36]):
35 As to the first asserted right, the points of claim relied upon by the CFMEU before the FCCA alleged that Hume Highway was a constitutional corporation, that Hume Highway controlled or occupied the premises, and that the hindrance to the CFMEU representatives occurred when they were entitled to enter the premises. Significantly, the particulars assert that the hindrance took place in the car park of the premises. On appeal, the CFMEU did not identify at which point it sought to assert before the FCCA that another constitutional criterion under s 494(2) was satisfied. Instead it obscurely referred in written submissions to s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) ('the FCCA Act'), which provides that the FCCA 'must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted'.
36 The basis of reliance by the CFMEU upon s 42 of the FCCA Act is unclear. If it was to suggest that the primary judge should have considered the relevancy of each of the constitutional criteria under s 494(2), even though the only constitutional criterion relied upon before the FCCA was that Hume Highway controlled or operated the premises, then that submission must be rejected. The primary purpose of s 42 of the FCCA Act is to promote expediency in the resolution of matters before the FCCA: WZASQ v Minister for Immigration and Anor [2013] FCCA 1726 at [33]; Auguste v Nikolyn Pty Ltd and Anor [2013] FCCA 1630 at [16]. It does not impose an obligation on the FCCA to go behind the pleadings of an applicant. It does not diminish the need for an applicant to state the case that is to be relied upon. In these circumstances, the primary judge was correct to find that the constitutional nexus, as pleaded, did not exist so as to enliven a State or Territory OHS right in connection with the inspection of the concrete pump.
17 As to the second aspect of the asserted right under s 502 of the FW Act, Cowdroy J recorded (at [37]):
37 The CFMEU submits that the primary judge erred when he found at [97] that the right of entry being exercised by the CFMEU representatives concluded when they left the premises. It is also submitted that such conclusion was inconsistent with the primary judge's observation at [88] that it was agreed 'in very general terms' that the CFMEU representatives had not completed their inspection before moving to the car park.
18 His Honour found (at [38]):
38 The primary judge was correct in his findings. As a matter of law, once the CFMEU representatives departed the premises, the statutory right of entry ceased. Such consequence resulted from the fact that the right of entry was wholly dependent upon the existence of a requisite constitutional foundation. …
19 Although Cowdroy J rejected the attempt by the CFMEU to broaden its reliance on s 494(2) it does not follow only from the limits imposed at first instance from the CFMEU's points of claim (where s 494(2)(a)(i) was relied on) that it would be necessarily impermissible or unreasonable to argue for a more expanded approach on appeal if the facts supported it and there was no procedural prejudice in doing so (see e.g. Betfair Pty Ltd v Racing New South Wales and Another (2010) 189 FCR 356 at [47]-[53]).
20 Nor does it seem to me, with respect, to have been inherently unarguable that the CFMEU representatives were seeking to exercise rights upon which they had already commenced when they sought to re-enter the premises controlled by Hume Highway.
21 However, I did not hear the appeal. It is apparent that Cowdroy J regarded aspects of the appeal as seriously deficient. I shall return to that issue shortly.
22 On the appeal, the CFMEU also challenged the order made by the FCCA that it should pay 50% of the respondents' costs. That order was based on rejection of the claim under s 502 of the FW Act. That rejection was accompanied by findings which rejected allegations by CFMEU witnesses about Mr Gittany's conduct.
23 Cowdroy J referred to those matters as follows (at [52]-[55]):
52 The primary judge only imposed the costs order against the CFMEU in relation to its claims concerning s 502 of the FW Act. His Honour did so for two reasons. As to the first asserted right, the CFMEU did not adduce any evidence to prove that the car park was occupied or controlled by a constitutional corporation. It was essential that one of the criteria under s 492(2) be established. By making no attempt to satisfy this requirement, the first asserted right had no prospects of success. This was made clear at [13] of the second judgment. The submission of the CFMEU that his Honour mistakenly focused on the conduct of employees of Hume Highway in this regard strains credulity.
53 As to the second asserted right, his Honour considered the evidence of the CFMEU's representatives to be untruthful in relation to their conduct and that of Mr Gittany in the car park. In particular, his Honour found that the allegations made against Mr Gittany that he engaged in threatening conduct were baseless. Such testimony was of pivotal importance as to whether the actions of Mr Gittany in temporarily denying the CFMEU representatives re-entry to the premises constituted undue delay under s 502 of the FW Act. This was made apparent at [17] of the second judgment where his Honour said:
In relation to that evidence I found that:
Overall, where Mr Gittany's evidence differs from that of Messrs Miller, Koh and Razaghi, I prefer his evidence. (at [107] [of the first judgment])
and
… I find that Mr Gittany did not threaten Messrs Miller, Koh and Razaghi or endeavour to keep them from re-entering the Premises in the manner alleged by the CFMEU or for the reason implicitly advanced by the CFMEU as the motivation for such conduct. (at [109] [of the first judgment])
54 It follows that the dishonesty of the CFMEU representatives in relation to Mr Gittany's conduct was not an extraneous or immaterial matter for the primary judge to consider in determining whether the CFMEU had reasonable cause to allege that s 502 had been contravened by either Hume Highway or Mr Gittany.
55 Finally, the CFMEU's submission that the primary judge should have provided reasons for exercising his discretion to award costs should also be rejected. The mere fact that the second judgment does not refer to the exercise of a discretion by the primary judge does not in itself suggest that his Honour made an award for costs simply because the conditions under s 570 of the FW Act were satisfied. A complete reading of the first and second judgments clearly reflects that his Honour deemed an award of costs to be appropriate in the circumstances.
[His Honour's emphasis]
24 The statement in [52] that an aspect of the case presented by the CFMEU at first instance "had no prospects of success" is a strong one. So also are the statements in [53]-[54]. It appears clear to me that Cowdroy J regarded the challenge to the rejection of the case based on s 502 of the FW Act, and the challenge to the award of costs, as unmeritorious in each case.
25 On the other hand, the hearing of the appeal took only one day and no costs have been sought referable to that part of the appeal which challenged the finding at first instance that there had been no breach of s 501 of the FW Act. That allegation also depended on allegations about Mr Gittany's conduct which were not accepted.
26 The fact that aspects of a case are decisively rejected at first instance, perhaps having regard to findings of credit in clear terms, does not mean that it was unreasonable to pursue a challenge about those matters on appeal. The conduct of the appeal must be assessed in its own right.
27 The CFMEU's argument about the operation of s 494(2) dealt with matters about which, often, there is no conclusively right or wrong approach. I am not persuaded that it was unreasonable for the CFMEU to have argued on the appeal that its case based on s 502 of the FW Act rested legitimately on a broader foundation than the findings made at first instance. As Gibbs J said in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 at 473 (in a passage set out by Cowdroy J at [49]):
In my opinion a party cannot be said to have commenced a proceeding "without reasonable cause", within the meaning of that section, simply because his argument proves unsuccessful.
28 Similarly, I would not regard it as unarguable, on the findings made on appeal, that the CFMEU representatives thought they were embarked on a single exercise when they sought re-entry to the premises, or that an appeal based on that premise was unreasonable.
29 If it was necessary to consider s 570(2)(a) I would not conclude that the appeal was instituted vexatiously or without reasonable cause. Similarly, I am not satisfied under s 570(2)(b) that the institution of the appeal, or maintenance of any aspect of it, was unreasonable in all the circumstances.
30 In my view, no order should be made concerning the costs of the appeal, or concerning the costs of the present application.
31 The application for costs will be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.