Costs
This is a judgment dealing with costs of a successful action brought by the Australian Workers’ Union of Employees against Etheridge Shire Council. In the primary case, Australian Workers’ Union of Employees, Queensland and Ors v Etheridge Shire Council and Anor (2008) 171 FCR 102; 250 ALR 485; 175 IR 383, the Queensland Branch of the Australian Workers’ Union (AWU) was successful in arguing that the Etheridge Shire Council was not a trading corporation within the terms of the Constitution and was therefore not an employer for the purposes of the Workplace Relations Act 1996 (Cth). The AWU was successful and, as a consequence, sought its costs. The Respondent Council sought to avoid the “usual order as to costs” on two bases. First, it relied upon s 824 of the Workplace Relations Act 1996 which says that costs are only awarded when proceedings are instituted vexatiously or without reasonable cause.
Second, it sought to resist an order for costs on the basis that the matter was a “test case”. Reference was made to comments by Kirby J in Oshlack v Richmond River Council (1998) 193 CLR 72; 152 ALR 83; [1998] HCA 11 to the effect that if a matter is a test case, the court may exercise its discretion to refrain from following the usual principle of costs follow the event (Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (No 2) [2009] FCA 58 at [10]). The Respondent Council, in reliance upon s 824 of the Act, said that the proceeding was a matter arising under the Act and therefore the exemption provided by s 824 applied. This was opposed by the Union.
Justice Spender resolved the issue of costs, relying upon the precise identification of “the matter” in the present case. “Matter” he held, means “the judicial controversy between the parties” (at [24]). In dealing with what the controversy was, in order to determine whether Etheridge Shire Council was an employer for the purpose of the Workplace Relations Act 1996, his Honour found that that was a matter arising under the Act and, as a consequence, the exemption found in s 824(1) of the Act applied in the proceedings. Further, the exemption applied to the institution of proceedings; Etheridge Shire Council did not institute either proceeding and therefore it followed that it could not have instituted either proceeding vexatiously or without reasonable cause. However, his Honour also found that, even if he was wrong on the statutory interpretation and because the case was a test case, he could not see that as a basis why he should refrain from the usual principle of “costs follow the event” (at [29]).
