FEDERAL COURT OF AUSTRALIA

PG & LJ Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd

[2005] FCA 134

COSTS – Application for costs orders by successful respondents – Proceeding brought under Workplace Relations Act  and Trade Practices Act – Whether proceeding instituted without reasonable cause – Costs order made.

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 followed.

Workplace Relations Act 1996 (Cth) s 347

P G & L J SMITH PLANT HIRE PTY LTD, PETER GLANVILLE SMITH, NIGEL HADGKISS v LANSKEY CONSTRUCTIONS PTY LTD, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, PETER PRIMMER, MICHAEL LANE

NSD 330 of 2004

WILCOX J

25 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The applicants pay the costs of the proceeding of each of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT ON COSTS

WILCOX J:

1                     On 17 December 2004, I made an order that this proceeding be dismissed.  In compliance with an earlier request by the parties, I reserved the matter of costs.  I directed that any respondents who wished to seek an order for costs forward written submissions by 28 January 2005 and that any submissions in reply be provided by 18 February 2005.

2                     Both Lanskey Constructions Pty Ltd (the first respondent) and the CFMEU respondents (the second, third and fourth respondents) sought costs orders in their favour and provided submissions.  The applicants responded with submissions arguing that no costs order should be made.

3                     I have considered these submissions and determined that I ought to make costs orders in favour of each set of respondents.  I do so for reasons that substantially adopt the submissions of the respondents.

4                     Insofar as this proceeding was based on the Trade Practices Act 1974 (Cth), there is no reason to depart from the general rule that costs follow the event.  The claims under that Act have failed.  Prima facie, therefore, the respondents are entitled to recover their costs.  There is no special circumstance warranting departure from that rule.

5                     Insofar as the proceeding was based on the Workplace Relations Act 1996 (Cth), the general rule is that costs are not to be awarded: see s 347 of that Act.  However, the section provides two exceptions.  One exception is where an applicant has instituted the proceeding ‘without reasonable cause’.

6                     In Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257 at 264-265, I said something about the ambit of this exception.  In particular, I suggested that ‘where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said the proceeding lacks a reasonable cause’.

7                     That is the situation in the present case.  Certainly, there were disputed questions of fact.  I determined the principal issue of fact adversely to the applicants.  That circumstance does not mean the proceeding was instituted without reasonable cause.  However, as I noted at paras 80-86 of my earlier judgment, the applicants’ case was beset with legal difficulties that would have required it to be dismissed in any event.  Even on the view of the facts propounded by the applicants, their case was hopeless.  It was instituted without reasonable cause.  Consequently, the exception provided by s 347 applies to override the general rule governing proceedings arising out of the Workplace Relations Act.  There is no discretionary reason to refrain from making a costs order.

Associate:

Dated:              25 February 2005