FEDERAL COURT OF AUSTRALIA

Sydney Ferries Corporation v Australian Maritime Officers Union (No 3) [2008] FCA 960

COSTS – application by Sydney Ferries Corporation (‘SFC’) for interlocutory relief withdrawn before hearing – subsequent anti-suit injunctions granted against SFC – whether the application was instituted ‘vexatiously or without reasonable cause’ for the purposes of the Workplace Relations Act 1996 (Cth) – whether SFC ‘by an unreasonable act or omission’ caused another party to incur costs in connection with the proceeding

Federal Court of Australia Act 1976, s 43

Workplace Relations Act 1996 (Cth), ss 494, 496, 824

Paras v Public Service Body Head of the Department of Infrastructure (No 3) (2006) 152 FCR 534 followed

Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 followed

Standish v University of Tasmania (1989) 28 IR 129 cited

Sydney Ferries Corporation v Australian Maritime Officers Union [2008] FCA 817 referred to

Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 referred to

The Queen v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 cited

SYDNEY FERRIES CORPORATION v AUSTRALIAN MARITIME OFFICERS UNION, MARITIME UNION OF AUSTRALIA & SEAMENS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH AND AUSTRALIAN INSTITUTE OF MARINE & POWER ENGINEERS

NSD 759 OF 2008

SACKVILLE J

25 JUNE 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The applicant (‘SFC’) pay the costs of the first respondent, the second respondents and the third respondent of SFC’s application for interlocutory relief heard on 28 May 2008.

2.         SFC pay the costs of the first respondent and of the second respondents of the motions filed by them on 30 May 2008 and 29 May 2008 respectively.

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

REASONS FOR JUDGMENT

COSTS APPLICATIONS

1                     On 28 May 2008, I heard an application by the applicant (‘SFC’) for interlocutory relief against the first respondent (‘AMOU’) and the second respondents.  The application, which relied on s 494(1) of the Workplace Relations Act 1996 (Cth) (‘WR Act’), was withdrawn by SFC before argument concluded.  SFC indicated prior to the hearing that an application for similar relief against the third respondent (‘AIMPE’) would not be pursued.

2                     On 29 May 2008, the second respondents filed a motion seeking an anti-suit injunction against SFC.  AMOU filed a similar motion on 30 May 2008.  On 30 May 2008, I made orders restraining SFC, pending final determination of the proceedings in this Court, from taking further action in the Australian Industrial Relations Commission (‘AIRC’) to obtain orders against AMOU and the second respondents under s 496 of the WR Act: Sydney Ferries Corporation v Australian Maritime Officers Union [2008] FCA 817.

3                     The background to the hearings held on 28 and 30 May 2008 and the subsequent course of proceedings in this Court are outlined in my judgment, published today, rejecting SFC’s application for declaratory relief against AMOU: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954.

4                     Each of the respondents now seeks costs orders against SFC in relation to the interlocutory proceedings:

·                     AMOU submits that SFC should be ordered to pay AMOU’s costs of SFC’s application for interlocutory relief and AMOU’s motion for an anti-suit injunction;

·                     The second respondents make a similar submission in relation to their costs of both the application and the motion; and

·                     AIMPE submits that SFC should pay AIMPE’s costs of SFC’s application for interlocutory relief.

LEGISLATION

5                     It is common ground that the Court’s discretion to award costs conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth) is, for present purposes, constrained by s 824 of the WR Act.  Section 824 provides as follows:

‘(1)      A party to a proceeding (including an appeal) in a matter arising under this Act … must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

(2)       Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.

(3)       In subsections (1) and (2):

            costs includes all legal and professional costs and disbursements and expenses of witnesses.’

6                     As AMOU’s submissions point out, the expression ‘proceeding in a matter’ in s 824(1) extends to an application made by motion in the course of the principal action: Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736, at 744 (IRC), per Wilcox CJ (with whom von Doussa J agreed); Paras v Public Service Body Head of the Department of Infrastructure (No 3) (2006) 152 FCR 534, at 539 [19].  There is no dispute that s 824(1) applies to an application for interlocutory relief, just as it does to a motion seeking interlocutory orders.  Section 824(1) therefore applies both to the costs of SFC’s application for interlocutory relief and of the successful motion brought by AMOU and the second respondents for an anti-suit injunction.

7                     It follows that the respondents cannot obtain the costs orders they seek unless:

·                     SFC instituted the proceeding ‘vexatiously or without reasonable cause’ (s 824(1)); or

·                     SFC, ‘by an unreasonable act or omission’, has caused another party to the proceeding to incur costs in connection with the proceeding (s 824(2)).

SUBMISSIONS

Respondents

8                     AMOU submits that SFC’s application for interlocutory relief was instituted ‘without reasonable cause’ for the purposes of s 824(1) of the WR Act because it had no reasonable prospects of success.  According to AMOU, SFC conceded at the hearing of 28 May 2008 that its case for interlocutory relief was hopeless.  Alternatively, AMOU says that SFC’s pursuit of a hopeless interlocutory application was an ‘unreasonable act’ that justifies an award of costs against it.

9                     AMOU further submits that SFC should be required to pay AMOU’s costs of its motion for an anti-suit injunction.  SFC, by applying to the AIRC for relief while the principal claim remained on foot in this Court, committed an unreasonable act that caused AMOU to incur costs in the proceeding.  In essence, SFC had attempted to pursue relief in another forum in a manner that required the AIRC to determine the same issue of construction that was before this Court and that remained unresolved.

10                  The second respondents support AMOU’s submissions.  They add that SFC’s conduct in seeking an order from the AIRC was an unconscionable exercise of legal rights that had to be restrained to prevent an abuse of the Court’s processes and, for that reason, was unreasonable.

11                  AIMPE contends that SFC’s interlocutory application against it was hopeless from the outset because s 494(1) of the WR Act, under which SFC took action, operates only in relation to a collective agreement the nominal expiry date of which has not passed.  The Enterprise Agreement between SFC and AIMPE had a nominal expiry date of 31 July 2007, a fact that must have been known to SFC before it instituted proceedings in this Court.  On that basis, the motion for injunctive relief against AIMPE was always ‘misconceived’.

SFC

12                  SFC does not oppose an order for the payment of costs in favour of the second respondents in respect of SFC’s application for interlocutory relief heard on 28 May 2008.

13                  SFC also does not oppose an order for costs in favour of AIMPE in respect of SFC’s application for interlocutory relief for the period between 6.25 pm on 26 May 2008 and 5.00 pm on 27 May 2008.  The temporal limitation seems to be put on the basis that SFC, having served AIMPE with the application for interlocutory relief in this Court at 6.25 pm on 26 May 2008, obtained orders from the AIRC against AIMPE at 4.00 pm on 27 May 2008 and, through its solicitor, left a voicemail message for the Federal Vice President of AIMPE at 5.00 pm on 27 May 2008, informing him that AIMPE’s attendance in Court the following day was not required.

14                  However, SFC opposes any order for costs in favour of AMOU in connection with SFC’s application for interlocutory relief.  SFC says that the argument on SFC’s application established that there was a serious question to be tried as to whether an injunction could and should be granted.  SFC relies on s 4(5) of the WR Act to support its contention that it had made out a prima facie case for relief against AMOU.  (This provision states that a reference to engaging in conduct includes a reference to being concerned in the conduct.)  SFC accepts that I was not referred to s 4(5) of the WR Act at the hearing, but maintains that the evidence adduced was sufficient to establish, to the standard appropriate to an application for an interim injunction, that AMOU was concerned in conduct constituting a contravention of s 494 of the WR Act.  SFC also submits that withdrawing its application for interlocutory relief does not establish that it commenced the application against AMOU without reasonable cause.

15                  SFC next submits that it should not be ordered to pay the costs of the motions for anti-suit injunctions.  It does not dispute that its conduct in initiating proceedings in the AIRC, having regard to its withdrawal of the application for interlocutory relief in this Court, was unreasonable.  But SFC argues that s 824(2) of the WR Act does not extend to the initiation of proceedings in a different tribunal.  SFC contends that the purpose of s 824(2) is to make a party liable for costs

‘in respect of an unreasonable act or omission in connection with the proceeding instituted in the Court.’

By approaching the AIRC for orders pursuant to s 496 of the WR Act, so SFC argues, it was not acting in connection with the relevant proceeding in this Court, namely its application for interpretation of the Enterprise Agreements.

REASONING

Costs of SFC’s Application

16                  An application is not commenced ‘without reasonable cause’ simply because the applicant’s arguments are rejected by the Court: The Queen v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, at 473, per Gibbs J.  However, if the application is ‘misconceived’ the position is very likely to be different: Standish v University of Tasmania (1989) 28 IR 129, at 139, per Lockhart J.

17                  As I have recorded, SFC does not oppose an order for costs in favour of the second respondents in respect of SFC’s application for interlocutory relief.  This appears to be an acknowledgement by SFC that its claim against the second respondents faced insuperable jurisdictional difficulties.  The claim against the first named second respondent (‘MUA’) was bound to fail because it was not a party to any of the relevant Enterprise Agreements.  The claim against the second-named second respondent (‘SUA’) was also bound to fail since it was not an ‘organisation’ to which s 494(1) of the WR Act applied, being registered not under the WR Act but under the Industrial Relations Act 1996 (NSW).  Accordingly, SFC should be ordered to pay the second respondents’ costs of SFC’s interlocutory motion.

18                  SFC should also be ordered to pay AIMPE’s costs of SFC’s application.  The institution of the proceeding seeking an injunction against AIMPE under the WR Act was unreasonable (as SFC appears to concede).  This defect was not cured simply by leaving a voicemail message with AIMPE on the evening before the hearing, stating that it was unnecessary for AIMPE to appear in court the following day.  AIMPE was entitled to ensure that its interests were protected at the hearing.

19                  SFC’s submissions in relation to the costs of its application in substance attempt to reconstruct the arguments advanced by it on that occasion.  It is true that there was no jurisdictional issue so far as SFC’s application against AMOU was concerned but SFC did not attempt to advance the argument now put on its behalf.  The fact is that SFC elected to withdraw its application against AMOU without giving any explanation to the Court for doing so.  The explanation subsequently offered by senior counsel then appearing for SFC was quite consistent (as AMOU correctly submits) with SFC recognising that there was simply no utility in pursuing its claim for injunctive relief against AMOU if the Court lacked jurisdiction to make similar orders against the second respondents.

20                  If it be the case, as SFC now contends, that SFC could have plausibly proceeded with its application for interlocutory relief in this Court against AMOU it is difficult to understand why SFC decided to withdraw its claim.  The obvious inference is that SFC brought its application in the belief that, in order to be useful, injunctive relief had to be obtained against both AMOU and the second respondents.  The fact that SFC should have known that the Court lacked jurisdiction to make orders against the second respondents made it unreasonable, in my view, for SFC to seek injunctive relief against AMOU in this Court.  SFC should therefore pay AMOU’s costs of SFC’s application.

Costs of the Anti-Suit Motions

21                  In Paras v Public Service Body, Young J rejected (at 536 [8]) a submission that s 824(2) is:

‘only concerned with acts or omissions in the practical sense of things done or omitted to be done which do not accord with reasonable notions of the conduct of proceedings, such as failing to turn up at a hearing, failing to meet deadlines laid down in court directions and not giving timely notice.’

His Honour held (at 538 [16]) that s 824(2):

‘is not confined to costs associated with the institution of the proceedings or a step in the proceedings; it extends more broadly to costs incurred as a result of any unreasonable act or omission.  On a plain and natural meaning of s 824(2), there is no reason why the reference to an unreasonable act or omission that has caused another party to incur costs in connection with the proceeding should not extend to unreasonable acts or omissions in connection with an interlocutory application.  And, as the Explanatory Memorandum suggests, the power conferred by s 824(2) can be exercised irrespective of the outcome of the particular application in question, and of the proceedings as a whole.’

22                  SFC’s submissions assume that Young J was intending to limit the operation of s 824(2) of the WR Act to an unreasonable act or omission ‘in connection with’ the relevant proceeding.  In view of his Honour’s observation that the sub-section ‘extends more broadly to costs incurred as a result of any unreasonable act or omission’ it is by no means clear that his Honour did so intend. It is to be remembered that the statutory criterion is whether a party to a proceeding has, by an unreasonable act (or omission), caused another party in the proceeding to incur costs in connection with the proceeding. 

23                  SFC’s submissions also appear to assume that the relevant ‘proceeding’ is SFC’s application for a declaration as to the proper construction of the Enterprise Agreements.  However, the authorities ([6] above) demonstrate that ‘a proceeding … in a matter’ includes an interlocutory application, such as a motion for an anti-suit injunction.

24                  The question posed by the statutory language is whether SFC’s unreasonable act (in commencing proceedings in the AIRC while the proceedings in this Court were on foot) caused AMOU and the second respondents to incur costs in connection with their application for an anti-suit injunction.  The answer to that question, in my opinion, must be yes, since the motions for anti-suit injunctions were made necessary by SFC’s act.

25                  Even if, contrary to my view, AMOU must show that SFC’s unreasonable act was ‘in connection with’ the proceedings seeking declaratory relief, in my opinion it has done so.  At the time SFC commenced proceedings in the AIRC, it had not amended its application in this Court to exclude its claim for injunctive relief (although it had foreshadowed its intention to amend the application).  In any event, SFC had sought injunctions in this Court and had pressed for interlocutory orders until it withdrew its application late in the hearing of 28 May 2000. 

26                  The principal reason that I granted the anti-suit injunction was because SFC’s application to the AIRC required that body to address precisely the issue that was argued before this Court on SFC’s application for interlocutory relief:  SFC v AMOU (No 1), at [26].  By instituting proceedings in the AIRC SFC sought to achieve, in substance, the same result it had failed to achieve in this Court (at [28]).  I held that to allow SFC to take this course would impair the integrity of the processes of this Court, that SFC itself chose to invoke (at [29]). 

27                  In these circumstances, it seems to me that SFC’s unreasonable act is aptly characterised as having been taken ‘in connection’ with the proceedings in this Court by which SFC sought declarations as to the construction of the Enterprise Agreements.  SFC should pay the costs of AMOU and the second respondents in relation to their motions for anti-suit injunctions that were heard and determined by me on 30 May 2008.

Associate:

Dated:         25 June 2008