Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION APPELLANT

AND

GREGORY PAUL BARCLAY & ANOR RESPONDENTS

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42 3 October 2012 M128/2011

ORDER

The respondents pay the costs of the appellant.

On appeal from the Federal Court of Australia

Representation

J L Bourke SC with P M O'Grady for the appellant (instructed by Lander & Rogers Lawyers)

R C Kenzie QC with M A Irving for the first and second respondents (instructed by Holding Redlich)

T M Howe QC with S P Donaghue SC and L E Young intervening on behalf of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2]

Procedure – Costs.

FRENCH CJ, GUMMOW, HAYNE AND CRENNAN JJ. Order 3 of the order of the Court made on 7 September 2012 provided that in the absence of agreement any question of the costs of the appeal be dealt with on the papers as indicated in the reasons for judgment. Written submissions have been received and the matter has been considered on the papers. The appellant seeks orders against both the respondents and the intervener ("the Minister"). The proposed orders would require the respondents pay 85 per cent of the appellant's costs and the Minister to bear the balance. But in accordance with established practice in this Court respecting interveners, no order should be made against the Minister. If no such order be made, the appellant seeks an order for all of its costs against the respondents. The respondents accept that the provision with respect to certain costs which is made by s 570 of the Fair Work Act 2009 (Cth) does not apply to the appeal to this Court. The respondents, however, submit that the Court should exercise its power with respect to those costs by making no order as to costs. They point to the absence in the Draft Notice of Appeal and the Notice of Appeal of any order seeking costs and to the late emergence of the point shortly before delivery of judgment on 7 September 2012. However, those circumstances are insufficient to displace the prima facie entitlement of the successful appellant to the costs order it seeks against the respondents. An order should be made that the respondents pay the costs of the appellant.