Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd (No 2) [2019] FCAFC 114

FEDERAL COURT OF AUSTRALIA

File number:	NSD 414 of 2019

Judges:	RARES ACJ, JAGOT AND BROMWICH JJ

Date of judgment:	5 July 2019

Legislation:	Fair Work Act 2009 (Cth) ss 443, 570 Judiciary Act 1903 (Cth) s 39B

Cases cited:	Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99

Date of hearing:	Determined on the papers

Date of last submissions:	4 July 2019

Registry:	New South Wales

Division:	Fair Work Division

National Practice Area:	Employment & Industrial Relations

Category:	No Catchwords

Number of paragraphs:	3

Counsel for the Applicant:	Mr S Crawshaw SC

Solicitor for the Applicant:	Slater & Gordon Lawyers

Counsel for the First to Fourth Respondents:	Mr Y Shariff

Solicitor for the First to Fourth Respondents:	Seyfarth Shaw Australia

Counsel for the Fifth Respondent:	The fifth respondent filed a submitting notice save as to costs

ORDERS

		NSD 414 of 2019

BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	DP WORLD SYDNEY LTD ACN 001 351 159 First Respondent DP WORLD (FREMANTLE) LTD ACN 009 106 763 Second Respondent DP WORLD MELBOURNE LTD ACN 000 049 301 (and others named in the Schedule) Third Respondent

JUDGES:	RARES ACJ, JAGOT AND BROMWICH JJ
DATE OF ORDER:	5 JULY 2019

THE COURT ORDERS THAT:

1. The application of the first, second, third and fourth respondents for an order for costs under s 570(2) of the Fair Work Act 2009 (Cth) be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 On 30 May 2019, we dismissed the application for relief under s 39B of the Judiciary Act 1903 (Cth) and reserved our reasons that we delivered on 20 June 2019: Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99. When dismissing the application, we ordered a timetable if any party wished to apply for costs: DP World [2019] FCAFC 99 at [24].

2 In conformity with those orders, the first to fourth respondents (DP World) applied for an order under s 570(2) of the Fair Work Act 2009 (Cth) on the basis that the Construction, Forestry, Maritime, Mining and Energy Union had instituted the proceeding without reasonable cause. DP World argued that the Union’s challenges to the decisions of the Full Bench of the Fair Work Commission and the Deputy President were doomed to fail. DP World also argued that there was no real controversy as to the correct principles to be applied in the Commission arriving at a decision under s 443(5) of the Fair Work Act.

Consideration

3 We reject DP World’s application for costs. It was common ground that this proceeding was the first occasion that this Court has been asked to decide a matter involving the principles to be applied under s 443(5). Indeed, that is why the Chief Justice exercised his power to direct that the application in the original jurisdiction be heard by a Full Court. The application involved a question of general importance under the Fair Work Act. The fact that the Union’s challenges were unsuccessful does not mean that it was acting without reasonable cause in seeking judicial review in the circumstances.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Rares and Justices Jagot and Bromwich.

Associate:

Dated: 5 July 2019

SCHEDULE OF PARTIES

	NSD 414 of 2019
Respondents
Fourth Respondent:	DP WORLD BRISBANE PTY LTD ACN 130 876 701
Fifth Respondent:	FAIR WORK COMMISSION

Top