Federal Court of Australia

Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation (No 2) [2025] FCAFC 90

ORDERS

THE COURT DECLARES THAT:

1.    Employees of Orica Australia Pty Ltd who performed shotfiring and related services at black coal mines in New South Wales during the period from 1 March 2013 until 28 February 2022 were eligible employees within the meaning of subsection (b) of the definition in section 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth).

2.    Orica Australia Pty Ltd failed, during the period 1 March 2013 to 28 February 2022, to pay to the Coal Mining Industry (Long Service Leave Funding) Corporation levies imposed by section 4 of the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth) on eligible wages paid to all of its employees who performed shotfiring and related services at black coal mines in New South Wales, pursuant to section 6 of the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth).

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Declarations 1 and 4 of the orders made on 6 February 2024 in proceeding NSD 156 of 2021 be set aside.

3.    The appeal be otherwise dismissed.

4.    The parties are to bear their own costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    By judgment herein dated 15 May 2025, the court resolved partly to allow the appellant’s appeal: Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2025] FCAFC 65 (Collier, Snaden and Hatcher JJ). The parties were asked to reflect upon the court’s reasons and to provide an agreed minute or competing minutes of orders proposed to give effect to them. No such agreement was reached and, consistently with the court’s invitation, the parties forwarded competing minutes of orders and brief submissions in support of their respective positions. The reasons that follow pertain to the final relief that we have resolved to grant in the appeal.

2    By the primary judgment, it was held that certain of the appellant’s “shotfirer” employees were and, since 2013, had been “eligible employees” within the meaning given to that phrase by s 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth). The primary judge granted declaratory relief consistent with that conclusion.

3    On appeal, the appellant challenged that central finding on four bases. In two respects, it succeeded; in another, it did not. One was not necessary to resolve. In the result, the court accepted that the relevant “shotfirer” employees ceased to be “eligible employees” after 28 February 2022. That conclusion necessitates that amendments be made to the declaratory relief that the primary judge granted and it was the nature of those amendments that the parties were invited to consider (and have now considered) further.

4    Two issues now arise: in what form should the court now grant declaratory relief consistent with its earlier reasoning; and what orders should be made as to costs, both of the appeal and of the proceeding below.

5    The terms in which the court should grant declaratory relief that is appropriate to give effect to its findings on appeal are easy enough to resolve. The parties’ competing proposals are alternative ways of saying the same thing. The relief that we will grant is expressed in the terms by which we consider that it is best expressed.

6    The question of costs is less straightforward.

7    It is convenient to begin by considering what, if any, orders might be made as to the costs of the proceeding at first instance. Uncontroversially, the learned primary judge resolved to require that the appellant pay the respondent’s costs of that proceeding. Presently, the respondent proposes that there should be no revisiting of that conclusion. The appellant, by contrast, invites the court now to set his Honour’s costs order aside and order, in its place, that each party bear its own costs in respect of that proceeding.

8    There is no occasion now to interfere with the primary judge’s orders as to the costs of the proceeding at first instance. Although, on appeal, we have resolved to limit to a particular period of time the declaratory relief for which the respondent moved, it nonetheless remains the case that its success at first instance has been largely undisturbed.

9    The situation is different as concerns the appeal (and the notice of contention by which the respondent sought unsuccessfully to defend the primary judgment). Both parties (it is convenient, for now, to ignore the intervener) have enjoyed measures of success. The appellant has succeeded in prosecuting its preferred construction of the relevant statute, with the result that it has no ongoing statutory liability in respect of its “shotfirer” employees. The respondent has succeeded in defending the liability that the primary judge identified in respect of those employees, at least for a significant period of the time that was relevant to the proceeding before him.

10    Each submits that the other should be ordered to pay a proportion of its appeal costs: the appellant seeks 75% of its costs and the respondent seeks 50% of its costs. Each position is said to reflect an assessment of relative success. In the circumstances, we consider that the court’s discretion to award costs in the appeal should be exercised such that each party bears its own. There will be orders to that effect. The intervener does not seek any separate order as to its own liability for costs and none shall be made. The parties submitted that the court should also order that the respondent’s notice of contention be dismissed. Plainly, it has not succeeded; but it is not a discrete originating process and no such order is necessary.

Associate:

Dated:    17 July 2025