Duck v Airservices Australia (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 30 March 2021
• Neutral Citation: [2021] FCA 304
• Date: 30 March 2021

Federal Court of Australia

Duck v Airservices Australia (No 3) [2021] FCA 304

File number:	ACD 97 of 2017
Judgment of:	BROMWICH J
Date of judgment:	30 March 2021
Catchwords:	STATUTORY INTERPRETATION – application for costs against non-party funder in industrial class action – whether power to order costs against non-party – whether in the exercise of discretion costs orders should be made against funder – where the Court cannot make an ordinary costs order against a party under s 43 of the Federal Court Act 1976 (Cth) because of s 570 of the Fair Work Act 2009 (Cth) – held: s 570 does not prevent the Court from making a non-party costs order as provision only applies to a party to proceedings ; COSTS – whether s 570 of the Fair Work Act still a relevant consideration in the decision to award costs against a non-party – whether the general rule that costs follow the event applies – whether policy considerations of access to justice can be determinative – whether non-party was put on notice that costs would be sought because of application for security for costs in a concurrent case – where separate question that was recognised to be decisive to case raised for hearing separately and decided adversely, meaning that a full trial was avoided – where no suggestion that litigation was instituted vexatiously or without reasonable cause – where speculative submissions as to effect of decision on non-party funder schemes of limited assistance – held: underlying purpose of s 570 cannot be wholly set aside in favour of more general principles and discretion relating to the award of costs – held: not in the interests of justice to make a costs order against the non-party funder – application dismissed
Legislation:	Civil Procedure Act 2005 (NSW) ss 155, 181 Federal Court of Australia Act 1976 (Cth) ss 33ZF, 37M, 37N, 43 Fair Work Act 2009 (Cth) s 570
Cases cited:	Arklow Investments Ltd v Maclean (High Court of New Zealand, Fisher J, unreported, 19 May 2000) Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; 179 ALR 406 Ashby v Slipper (No 3) [2015] FCAFC 9; 317 ALR 621 Augusta Ventures Limited v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; 384 ALR 340; 300 IR 446 Bannon v Nauru Phosphate Royalties Trust (No 3) [2017] VSC 214; 51 VR 362 BMW Australia Ltd v Brewster; Westpac Banking Corp v Lenthall [2019] HCA 45; 374 ALR 627 Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 59 Duck v Airservices Australia (No 2) [2019] FCA 1148 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39; 1 NZLR 145; 1 WLR 2807 Gore v Justice Corporation Pty Ltd [2015] FCAFC 9; 119 FCR 429 Kebaro Pty Ltd v Saunders [2003] FCAFC 5 Knight v FP Special Assets Limited [1992] HCA 28; 174 CLR 178 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 Pettit v Evolution Mining Ltd [2016] FCA 1304 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Ruddock v Vardalis [2001] FCA 1865; 115 FCR 229 Ryan v Primesafe [2015] FCA 8; 323 ALR 107 Symphony Group Plc v Hodgson [1994] QB 179 Trustee for the MTGI Trust v Johnson (No 2) [2016] FCAFC 190 Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048 Turner v Tesa Mining (NSW) PL [2019] FCA 1644; 290 IR 388 Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 Vestris v Cashman (1998) 72 SASR 449 Wigmans v AMP Ltd (No 3) [2019] NSWSC 162; 366 ALR 594 Yirra Pty Ltd v Summerton [2009] FCAFC 50; 176 FCR 219
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	69
Date of last submissions:	26 February 2021
Date of hearing:	29 October 2019
Solicitor for the Applicant:	Adero Law
Counsel for the Respondent:	A M Hochroth
Solicitor for the Respondent:	Ashurst
Counsel for the Person Affected (Non-Party Litigation Funder, Augusta Ventures Limited):	M Darke SC, A Smith

ORDERS

		ACD 97 of 2017
BETWEEN:	CATHERINE DUCK Applicant
AND:	AIRSERVICES AUSTRALIA Respondent
	AUGUSTA VENTURES LIMITED Person Affected

order made by:	BROMWICH J
DATE OF ORDER:	30 MArch 2021

THE COURT ORDERS THAT:

1. The respondent’s application for a costs order to be made against Augusta Ventures Limited, the non-party litigation funder for the applicant, be dismissed.

2. There be no order as to costs.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. This employment class action proceeding was commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in relation to alleged contraventions of the Fair Work Act 2009 (Cth). Following the determination of a common question which was fatal to the proceeding, the further amended originating application was dismissed: Duck v Airservices Australia (No 2) [2019] FCA 1148. The respondent, Airservices Australia, applies for an order that Augusta Ventures Limited (AVL), the litigation funder for the unsuccessful lead applicant, Ms Duck, pay the respondent’s costs of the proceeding.

2. It is common ground that the Court cannot ordinarily make a costs order under s 43 of the FCA Act against Ms Duck directly because s 43(1)(b) expressly provides that this discretionary power to award costs is subject to s 570 of the Fair Work Act, which relevantly states:

(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 [Fair Work Commission];

(ii) the matter arose from the same facts as the proceedings.

3. It is also common ground that none of the exceptions to the prohibition on making costs orders contained in s 570 applied in this case. Airservices Australia therefore does not have any basis for seeking costs against Ms Duck.

4. The main reason for a substantial delay in making this decision was...