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

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