Director of the Fair Work Building Industry Inspectorate v Abbott

Director of the Fair Work Building Industry Inspectorate v Abbott - [2016] FCA 379 - FCA 2016 case summary — Zoe

[4]

Legal Principles 4 Section 43(1) of the Federal Court of Australia Act 1976 (Cth) ("FCAA") relevantly provides that: "Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs shall not be awarded". 5 Section 43(2) of the FCAA provides the Court or a Judge with a broad discretion to award costs. 6 This discretion extends to all proceedings apart from those which are brought under section 570 of the Fair Work Act 2009 (Cth) ("FW Act") or any other Act of Parliament that confers a 'no costs jurisdiction' restriction. 7 Section 824 of the Workplace Relations Act 1996 (Cth) ("WR Act") imposes a 'no costs jurisdiction' restriction. Mr Windus submits that as the original substantive proceedings concerned matters arising under this Act that s 824 is thereby invoked. 8 Two things may be observed in rejecting this submission. First, the original proceedings were commenced under the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act") and the WR Act. Prior to the trial in the Liability Decision, the claim against Mr Windus, pursuant to s 494 of the WR Act was withdrawn, leaving only the BCII Act claim. The BCII Act contains "no provisions that costs should not be awarded, either at all or subject to restrictions": CFMEU v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissions (No 2) [2013] FCAFC 25 at [9]. 9 Second, the interlocutory application did not concern either of those Acts. Rather it was concerned with whether Mr Windus had any liability to pay the costs of the solicitors who represented him in the proceedings, the subject of the Liability Decision, and whether the assessment of the Bill should be stayed. Accordingly s 824 is not engaged. 10 Costs should follow the event. There will be orders that Mr Windus pay the applicants costs of the interlocutory application as well as the costs of the present application, pursuant to the grant of liberty to apply for those costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

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