Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestlé Australia Limited [2005] FCA 717
COSTS – application for penalty pursuant to s 178 of the Workplace Relations Act 1996 (Cth) – application dismissed – whether proceeding commenced without reasonable cause – whether "reasonable" to be determined as a matter of objective fact without undue influence of the actual result – case not obviously hopeless – no order as to costs
Workplace Relations Act 1996 (Cth) ss 178, 298K 298U, 347(1) Spotless Services Australia Ltd v Marsh [2004] FCAFC 155, applied
Hatchett v Bowater Tutt Industries Pty Ltd (1991) 28 FCR 324, followed
R v Moore; Ex parte Federated Miscellaneous Workers' Union (1978) 140 CLR 470, followed
Geneff v Peterson (1986) 19 IR 40, followed AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v NESTLÉ AUSTRALIA LIMITED V 52 OF 2005 MARSHALL J 3 JUNE 2005 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 52 OF 2005
BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
APPLICANT
AND: NESTLÉ AUSTRALIA LIMITED
RESPONDENT
JUDGE: MARSHALL J
DATE OF ORDER: 3 JUNE 2005
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 52 OF 2005
BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
APPLICANT
AND: NESTLÉ AUSTRALIA LIMITED
RESPONDENT
JUDGE: MARSHALL J
DATE: 3 JUNE 2005
PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 In a judgment published on 3 May 2005 ("the substantive judgment") the Court dismissed an application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"); see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestlé Australia Limited [2005] FCA 488. The respondent, Nestlé Australia Limited ("Nestlé") has applied for its costs pursuant to s 347(1) of the Workplace Relations Act 1996 (Cth) ("the Act"). These reasons for judgment must be read together with the reasons in the substantive judgment. 2 Section 347(1) provides: "A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under s 170CP) shall 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." 3 Nestlé contended that the Union instituted the proceeding without reasonable cause. It submitted that, when issued, the application had no prospect of success. It submitted that the success of the application did not depend on any seriously disputed question of fact or the resolution of any arguable point of law.
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