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

REASONS FOR JUDGMENT 1 The question which now arises concerns costs. At the commencement of the appeal, the appellant amended his notice of appeal by abandoning two grounds and adding a fresh one. This course was not opposed by the respondent. At the time, the question of costs was reserved. 2 The ordinary rule is that a party amending a notice of appeal should pay the costs thrown away by reason of the amendment. 3 Should that rule now be departed from? The two grounds which were abandoned were grounds 6 and 8. Ground 6 related to an alleged incorrect view as to the requirements at the Epsom site. Ground 8 concerned a discrimination claim under s 45 of the Building and Construction Industry Improvement Act 2005 (Cth). Both of these grounds were factually intertwined with the matters still raised by those grounds of appeal which the appellant had not abandoned. This does not mean, however, that the appellant ought not to pay those costs of the respondents which, by reason of the abandonment of the two grounds, were thrown away on ultimately pointless forensic efforts. It is not to the point, as the appellant submitted, that the abandonment of the two grounds of appeal did not lengthen the hearing of the appeal for the question which arises concerns compensation for wasted, rather than increased, effort. 4 On the other hand, we do not accept that there should be any costs order in relation to the additional ground of appeal which was added. This was ground 7(i) and it related to allegedly incorrect factual findings by the trial judge in relation to the Bongartz and Sawyer conversation of 25 June 2008. 5 No costs which had been incurred were wasted by reason of that amendment for the ground was not abandoned and all the work put by the respondent into ground 7(i) continued to be of use after the amendment for the purpose of the appeal itself. The respondents submitted that they should have the costs of the appeal in respect of ground 7(i) (that is, the costs associated with the disposition of ground 7(i) in the actual appeal). That is not, however, the issue which the Court reserved. The Court reserved the question of the costs flowing from the amendment of the notice of appeal and not the costs of disposing of the appeal itself. The Court dealt with the costs of the appeal by ordering the respondents to pay the appellant's costs thereof and this order included, in its generality, ground 7(i). There is no application before this Court to vary that order. In any event, the Court would not be disposed, even if there were such an application, to apportion costs in this case. The grounds of appeal were all interconnected in a way which makes that course impractical. 6 The appropriate order in relation to the reserved costs is, therefore, that the appellant should pay the respondents' costs thrown away by reason of the amendment to the notice of appeal on 1 August 2012. 7 The respondent then submitted that this Court should prevent any costs which it has awarded from being taxed until the final determination of the new trial. 8 The basis of the submission was that this would prevent the occurrence of two taxations (one for the two trials and one for the appeal). It was not submitted that the taxation should not occur because of the possibility that the costs of the appeal might be set-off against the costs of the two trials should the respondents prevail at the second trial. 9 Federal Court Rules 2011 (Cth) ('the Rules') r 40.13 provides: 40.13 Taxation of costs awarded on an interlocutory application If an order for costs is made on an interlocutory application, the party in whose favour the order is made must not tax those costs until the proceeding in which the order is made is finished. Note The Court may order that costs of an interlocutory application be taxed immediately. 10 In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 119 the Full Court made an order of the kind presently sought by the respondents. Their Honours reasoned (at [19]): As for the timing of the taxation of the costs, it is desirable to avoid multiple taxations, so it is appropriate to order that neither party be entitled to have a bill of costs taxed until the principal proceeding is concluded or further order of the trial judge. This is not because we treat the appeal as an "interlocutory application", but as an aspect of the exercise of the Court's discretion as to the ordering of costs and to avoid unnecessary taxations. 11 An order will be interlocutory where it does not finally determine the rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225, 230 at [25]. Since an order for a retrial has no impact on the final rights of the parties this would suggest that such an order is interlocutory. Such authority as there is supports that conclusion: McKeon v Miller (1905) 22 (WN) NSW 22, 23 per Pring J; Nolan v Clifford (1904) 1 CLR 429, 443 per Griffiths CJ; Webb v Hanlon (1939) 61 CLR 313, 321 per Latham CJ, 332 per Evatt J and 325 per Dixon J. 12 This is not, however, the question posed by r 40.13 which is enlivened not by the presence of an interlocutory order but instead by an 'interlocutory application'. 13 That expression is defined in the Dictionary in Schedule One of the Rules to mean 'an application, other than a cross-claim, in a proceeding already started'. The question then is whether the appeal is a separate proceeding from the trial. Since it involves the exercise of a different jurisdiction (viz original and appellate) an appeal is properly to be seen, in our opinion, as a separate proceeding. Consideration of the origin and nature of appeals leads to the same conclusion. An appeal is, as Lord Westbury LC observed in Attorney-General v Sillem (1864) 11 ER 1200, 1209; 10 HLC 704, 724, 'the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below'. Were an appeal and its related trial to be seen as but one proceeding then the difference between appellate and original jurisdiction might well become elided: cf: Construction Forestry Mining and Eneregy Union v CSBP Ltd (No 2) [2012] FCAFC 64 at [9]-[11]. In that case it was held that an appeal proceeding was not a proceeding under the enactment which had conferred original jurisdiction on the trial court but was instead a proceeding under s 24(1) of the Federal Court of Australia Act 1976 (Cth). What is involved in appeal is, therefore, a separate proceeding. 14 It follows that a notice of appeal cannot be an 'interlocutory application' even if the orders sought in it are interlocutory in nature and even if the orders resulting from it share the same character: it cannot be an application filed in a proceeding already commenced because it necessarily commences the appeal. We agree with the Full Court in Cadbury, therefore, that it is not permissible in such circumstances to treat a notice of appeal as an interlocutory application. Consequently, r 40.13 cannot apply. This means that, unless disturbed, r 40.14 ('If these Rules or an order of the Court entitle a party to costs, the party may have those costs taxed without an order directing taxation.') will apply. In Cadbury, the Full Court regarded the source of its authority to prevent the taxation contemplated by r 40.14 from occurring as 'an aspect of the exercise of the Court's discretion as to the ordering of costs' at [19]. Such an order would, of course, be contrary to the Rules but r 1.35 expressly contemplates that orders having that effect may be made ('The Court may make an order that is inconsistent with these Rules and in that event the order will prevail'). 15 As Cadbury holds, it is generally undesirable to have two taxations and this is a significant, although not determinative, factor in considering how the present question should be approached. There is nothing in this appeal which would make the conduct of two taxations an attractive proposal and, in that circumstance, we will order that r 40.13 apply to the appeal as if the notice of appeal were an interlocutory application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Perram and Bromberg.