Hot Wok Food Makers Pty Ltd v United Workers Union

1. The first respondent's application for costs be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 15 November 2022, for reasons which I delivered ex tempore, I dismissed an application by the applicant, Hot Wok Foodmakers Pty Ltd (Hot Wok). The application was to restrain, pending the hearing and determination of its judicial review application, a Full Bench of the federal conciliation and arbitration commission, presently known as the Fair Work Commission (industrial commission) from further proceeding with the hearing of an appeal against an approval of an enterprise agreement in the industrial commission's original jurisdiction,: see Hot Wok Food Makers Pty Ltd v United Workers Union [2022] FCA 141 (principal judgment). 2 At the time, I made provision for the hearing on the papers, and after the receipt and consideration of written submissions, of any application which the first respondent, the United Workers Union (UWU) might make in respect of costs. The UWU was disposed to seek an order for costs. The parties have filed consequential submissions in respect of that application. 3 These reasons for judgment address that costs application. They must be read in conjunction with the principal judgment. 4 In relation to a matter arising under the Fair Work Act 2009 (Cth) (FWA) the general power to award costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is affected by, materially, s 570 of the FWA. That section provides: s 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising 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 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 5 The UWU points to s 570(2)(b) of the FWA as providing occasion for the making of a costs order in its favour in respect of the dismissal of Hot Wok's application for interlocutory injunctive relief. 6 Taking up an observation made by Gageler J in respect of the word "unreasonable" in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30, at [59], the Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, at [18] remarked of that same word as used adjectively in s 570(2)(b) of the FWA that it "is not capable of precise definition and is 'inherently sensitive to context'". 7 The relevant context in this case is not just of a failed application for interlocutory injunctive relief. As I noted in the principal judgment, the Full Bench of the industrial commission, for reasons which it came to set out at elaborate length, embarked upon an unusual course in respect of the hearing of the challenge by the UWU to the approval of the enterprise agreement. In part, that course was informed by the wider industrial knowledge of the Full Bench. 8 Whether the Full Bench came to commit jurisdictional error in dealing with the UWU's appeal is yet to be determined by this Court. All that I determined by the principal judgment was that, as a matter of impression, the proposed basis of challenge did not strike me as raising a prima facie case. Further and any event, when the proposed grounds of review were taken in conjunction with what I saw as an overwhelming need for industrial reasons for the Full Bench to deal with the appeal to finality, the balance of convenience did not favour the granting of interlocutory injunctive relief, pending the substantive hearing and determination of Hot Wok's judicial review application. 9 The hearing of the interlocutory injunction application occurred in circumstances of some urgency, as the Full Bench was next to hear the appeal on 25 November 2022. With the benefit of more detailed submissions concerning the grounds of review, and related greater time for reflecting upon their merits, it may perhaps be that Hot Wok succeeds in establishing jurisdictional error on the part of the Full Bench. Equally, of course, it may not so succeed. The point for present purposes is that an impressionistic absence of a prima facie case is not in this instance to be equated with an unreasonable act on the part of Hot Wok in seeking interlocutory injunctive relief. 10 The UWU pointed to certain statements made by Hot Wok's counsel to the Full Bench, at earlier stages in proceedings, as to a likely consequential effect on the judicial review proceedings in this Court as indicative of an awareness on the part of Hot Wok that the further prosecution of those proceedings and the related interlocutory injunction application would be without reasonable cause. There is no reason to think that counsel's statements were, at the time they were made, made other than in good faith. It is necessary to remember, as the principal judgment reveals, that the grounds of appeal to the Full Bench evolved by amendment. It is not apt to take statements by counsel at an earlier stage of proceedings before the Full Bench and treat them as having a universality of application, even in the context of later events. 11 The Full Bench found attraction in grounds of appeal permitted by amendment. Those amendments in turn reflected concerns raised by the Full Bench with the parties about the approval of the enterprise agreement. Those concerns were in turn occasioned by the wider industrial knowledge of the Full Bench. Recalling the specialist nature of the industrial commission's membership, I was not, as a matter of impression, attracted to the existence, prima facie, of the jurisdictional error ground of apprehended bias on the part of the Full Bench, as promoted by Hot Wok. The outcome of the substantive hearing may disclose that this impression was overly pessimistic. 12 Various statements have been made judicially about occasion for the exercise of the Court's costs power in light of s 570(2)(b) of the FWA. These were helpfully collected by Halley J in BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347, at [26]. These reveal that it is just as erroneous to approach the awarding of costs on the basis that there are no costs in the industrial jurisdiction as it is to conceive of costs following the event in proceedings related to a matter arising under the FWA. Plainly enough, Parliament intended that a rather more than an adverse court event was necessary to warrant the exercise of the costs discretion in such cases. That intention is for present purposes manifested in the text of s 570(2)(b) of the FWA. The enactment of s 570(2)(b) of the FWA was informed by particular policy considerations in relation to such proceedings. In the circumstances of this case, I am not persuaded that the claim for interlocutory injunctive relief was an unreasonable act. It was merely a claim which did not prove persuasive, taking into account the considerations relevant to the granting of such relief. Occasion for the application of s 570(2)(b) of the FWA is not to be found merely in an order of dismissal. 13 The UWU's claim for costs must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.