Liu v Stephen Grubits and Associates (No 2) [2019] FCAFC 42

FEDERAL COURT OF AUSTRALIA

Liu v Stephen Grubits and Associates (No 2) [2019] FCAFC 42 Appeal from: Liu v Stephen Grubits and Associates (No 2) [2018] FCCA 842

File number: NSD 783 of 2018

Judges: REEVES, KERR AND LEE JJ

Date of judgment: 13 March 2019

Legislation: Fair Work Act 2009 (Cth) s 570 Federal Circuit Court of Australia Act 1999 (Cth) s 79

Cases cited: Cross v Harbour City Ferries Pty Ltd t/as Harbour City Ferries (No 2)[2017] FCCA 1713 Liu v Stephen Grubits and Associates [2019] FCAFC 24 Liu v Stephen Grubits & Associates (No 2) [2018] FCCA 842 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Date of hearing: Heard and determined on the papers

Date of last submissions: 1 March 2019

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: No Catchwords

Number of paragraphs: 23

Counsel for the Appellant: Mr I Chatterjee

Solicitor for the Appellant: AHL Legal

Counsel for the Respondent: Mr C Lambert

Solicitor for the Respondent: Michael Green Legal

ORDERS NSD 783 of 2018

BETWEEN: YUNLONG LIU Appellant

AND: STEPHEN GRUBITS & ASSOCIATES Respondent

JUDGES: REEVES, KERR AND LEE JJ DATE OF ORDER: 13 March 2019

THE COURT ORDERS THAT:

1. 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

THE COURT: 1 On 12 February 2019 the Court delivered reasons for dismissing an appeal from a costs order made in the Federal Circuit Court of Australia (FCCA): Liu v Stephen Grubits and Associates [2019] FCAFC 24 (Grubits). That costs order had been made in relation to an application under the Fair Work Act 2009 (Cth) (FW Act). The unsuccessful appellant had contended that the FCCA had no power to make such an order. 2 The parties were given leave to file written submissions on the question of costs of the appeal. Both filed written submissions. Their submissions were considered by the Court. 3 On 5 March 2019 the parties were advised that the Court had determined that there be no order as to costs. The parties were advised that a sealed copy of the Court's orders would be available the following day. Orders were made accordingly. The parties were advised that the Court did not propose to publish formal reasons in respect of costs unless so requested. 4 On 7 March 2019 the Court was made aware of a request. These are our reasons. 5 As a general rule, in an appeal determined by this Court costs follow the event. However, as we observed in Grubits at [13], s 570 of the FW Act provides that a party may be ordered to pay costs with respect to matters arising under that Act only in the circumstances set out in subs (2) (a), (b), or (c) of that section. That constraint applies to this appeal. 6 Section 570 is in the following terms: Costs only if proceedings instituted vexatiously etc. (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 FWC; (ii) the matter arose from the same facts as the proceedings.