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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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49 B A L A N C E M A R C H 2 0 1 8 debate was flagged by the taxpayers that any further submissions would need to be made about costs. The Full Court (Dowsett, Perram and Pagone JJ) referred to clear statements and authorities supporting the principle that if a departure from the usual approach to costs is to be urged this should be flagged with the Court before judgment is reserved (at [4]-[5]). Upon considering the specific basis on which indemnity costs was sought, the Full Court held there was no basis for interfering with the costs order already made (at [26]). C O S T S Costs under s 570 of the Fair Work Act 2009 (Cth) In Australian Building and Construction Commissioner v ADCO Constructions Pty Ltd (No 3) [2017] FCA 1090 (15 September 2017) the respondent sought a costs order in its favour against the Commissioner. In an earlier judgment, the Court (Collier J) dismissed the Commissioners case seeking orders that the respondent contravened s 354(1) of the Fair Work Act 2009 (Cth) (FW Act) by discriminating against a particular subcontractor, Surf City Cranes Pty Ltd (SCC), because alleged employees of SCC were not covered by an enterprise agreement which also covered the Construction, Forestry, Mining and Energy Union. Relevantly, the Court found that SCC was not the employer of the employees for the purposes of s 354(1) of the FW Act. Proceedings under the FW Act are generally a no costs jurisdiction. The respondent sought costs under s 570(2)(a) and (b) of the FW Act. Section 570(2)(a) and (b) of the FW Act provides that a party may be ordered to pay 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 partys unreasonable act or omission caused the other party to incur the costs ... Collier J referred at [11] to and applied the principles summarised by the Full Court in Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7]-[8]. Justice Collier made no orders for costs on the basis that the respondents had not substantiated its claims for costs under s 570(2)(a) or (b) of the FW Act. E V I D E N C E Whether privilege against exposure to penalty waived by lawyer acting with ostensible authority In Fair Work Ombudsman v Hu [2017] FCA 1081 (14 September 2017) the Court determined an interlocutory application seeking orders by a natural person respondent and his company (the respondents) vacating orders requiring them to file and serve affidavits and submissions prior to trial and an order excusing them from filing affidavits and any amended defence until the close of the applicants case. The proceeding was a penalty proceeding in which the Ombudsman alleged the respondents contravened s 45 of the Fair Work Act 2009 (Cth) whch provides that a person must not contravene a modern award. The Ombudsman alleged that the respondents were accessories to underpayments of workers who picked mushrooms. The respondents consented to orders that they file and serve affidavits and submissions by certain dates prior to the commencement of the trial. The interlocutory application sought to vacate these orders based on the penalty privilege. The Ombudsman submitted the natural person had waived that privilege based on certain admissions in a defence that had been filed and the consenting to orders for the filing and service of affidavits prior to trial. The respondents argued that the privilege could not be waived by a solicitor without instructions to do so and no such instructions were given. The Court (Rangiah J) accepted that penalty privilege, like other forms of privilege such as the legal professional privilege and privilege against self-incrimination, can be waived expressly or impliedly (at [18]). The question before the Court was whether the natural person respondent waived privilege by doing acts inconsistent with the maintenance of the privilege. Justice Rangiah held at [22] that the individual had waived penalty privilege in respect of the limited admissions and positive assertions of fact made in his filed defence. However, there was no indication of any intention to waive privilege in respect of any other facts or matters. The waiver went no further than the facts and matters admitted and asserted in the defence. Further, the Court rejected the Ombudsmans submission that the natural person had more generally waived his penalty privilege by consenting, through his solicitor, to