Nelmac Pty Ltd v Construction, Forestry, Mining & Energy Union (includes corrigendum dated 19 August 1999) [1999] FCA 929 (21 June 1999)

Last Updated: 7 October 1999

FEDERAL COURT OF AUSTRALIA

Nelmac Pty Ltd v Construction, Forestry, Mining & Energy Union

[1999] FCA 929

NELMAC PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS

NG 909 OF 1998

MADGWICK J

21 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 909 OF 1998

BETWEEN:	NELMAC PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
	FRANK CURRAN Second Respondent
	MAURICE HILL Third Respondent
JUDGE:	MADGWICK J
DATE:	21 JUNE 1999
WHERE MADE:	SYDNEY

CORRIGENDUM

In the above judgment delivered in Sydney on 21 June 1999, the following amendments should be made:

Orders page

Order 3 should read as follows:

"3. Costs in this matter are to be taxed forthwith."

Page 2

At paragraph five, third line, the word "court" should be capitalised.

Page 3

The appearances should be amended to read as follows:

Counsel for the Applicant:	I Neil
Solicitor for the Applicant:	Allen Allen & Hemsley
Counsel for the first Respondent:	S Crawshaw SC
Solicitor for the first Respondent:	Tom Roberts, CFMEU
Counsel for the 2nd & 3rd Respondent:	J Burnside QC with M Richards
Solicitor for the 2nd & 3rd Respondent:	Slater & Gordon
Date of Hearing:	21 June 1999
Date of Judgment:	21 June 1999

Associate:

Date:

FEDERAL COURT OF AUSTRALIA

Nelmac Pty Ltd v Construction, Forestry, Mining & Energy Union

[1999] FCA 929

PROCEDURE - application for contempt proceedings dismissed - application for indemnity costs and order for immediate taxation of costs - whether immediate taxation appropriate in contempt proceedings in contrast to interlocutory proceedings

Real Tech Systems Integration v Meuross (1998) 82 FCA 150, followed

NELMAC PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS

NG 909 OF 1998

MADGWICK J

21 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 909 OF 1998

BETWEEN:	NELMAC PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
	FRANK CURRAN Second Respondent
	MAURICE HILL Third Respondent
JUDGE:	MADGWICK J
DATE OF ORDER:	21 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is discontinued and dismissed.

2. The applicant is to pay the respondent's costs on a party to party basis.

3. Costs in this matter are to be taxed forthwith.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 909 OF 1998

BETWEEN:	NELMAC PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
	FRANK CURRAN Second Respondent
	MAURICE HILL Third Respondent

JUDGE:	MADGWICK J
DATE:	21 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 In this matter, after argument, the applicant sought leave to discontinue the contempt proceedings. That application was not opposed and accordingly I indicated that I would grant leave for that application to be discontinued and it will accordingly be regarded as discontinued. It will therefore be regarded as having been discontinued and dismissed.

2 The respondents to the application, also the respondents in the principal proceedings, seek their costs of the application on an indemnity basis and ask that the costs be ordered to be subject to taxation forthwith. There was no doubt that the applicants should have their costs of the application and opposition to this central order was but faintly argued.

3 In relation to the suggestion that indemnity costs are appropriate, this application seems to me no more than a case of a failure, by the applicant's legal advisers, to appreciate the degree of formality and fullness required in the drafting of a statement of charge on a contempt application and of electing to persist with the matter after a question of the adequacy of the statement in terms of giving fair notice had been raised. As Mr Neil's arguments demonstrated, it was not that nothing could be said in favour of the statement of the charge but more that the form of the statement was, on a balance of legal considerations, inadequate to ground a contempt proceeding.

4 There is no inflexible rule that governs the discretion of the Court as to when indemnity costs should be ordered and it is enough to say that, having had regard to all the matters that were put to me by the respondents, I do not consider it such a case. The costs will therefore be ordered on the ordinary party and party basis.

5 The applicants then ask that the unusual imposition, for interlocutory proceedings, of an order making the costs liable to immediate taxation and, subject to any further order of the Court, prompt payment, should not be visited on them. They pointed out that the proceedings are merely, as their counsel put it, in one sense a "subset" of the principal proceedings, that there are principal proceedings of substance on foot, the result of which is presently not predictable, and that, in effect, the free conduct of the applicant's case in the principal proceedings might be unfairly inhibited if they were made to pay costs now.

6 In many a case of an interlocutory proceeding there would, in my view, be much to be said for these submissions that, in any case, reflect the general rule that costs in interlocutory proceedings are not liable to immediate taxation or payment. However, contempt proceedings as Lehane J recognised in Real Tech Systems Integration v Meuross (1998) 82 FCA 150, are in a somewhat different category. They are final proceedings although they may be commenced by an application within an umbrella, as it were, of principal proceedings. In this way they are not really a subset of the principal proceedings in the sense in which most interlocutory proceedings are. In contrast to contempt proceedings, the right to the principal relief may often in some measure depend upon or be affected by interlocutory proceedings.

7 In these circumstances a more apt analogy may be drawn with a pair of parties, one of whom succeeds in a principal proceeding brought by the other, but who remains liable in another principal proceeding brought by that other. There is no basis not to order the party who lost the first proceeding to pay the costs of it.

8 Accordingly, I will order that the costs may be taxed forthwith and at this stage I decline the application, without prejudice to any further application based on other evidence or considerations, to stay payment of the costs order. Therefore, according to Order 62 Rule 7 of the Federal Court Rules, unless some further successful application be made, by a motion on notice, the costs will be payable upon taxation in the ordinary way.

9 The respondents are to have leave to make any further application in regard to the time for payment of the costs based on grounds other than those agitated here today, by notice on motion within 14 days.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 21 June 1999

Counsel for the Applicant:	I Neil
Solicitor for the Applicant:	Allen Allen & Hemsley
Counsel for the first Respondent:	S Crawshaw SC
Solicitor for the first Respondent:	Tom Roberts, CFMEU
Counsel for the 2nd & 3rd Respondents:	J Burnside QC with M Richards
Solicitor for the 2nd & 3rd Respondents:	Slater & Gordon
Date of Hearing:	21 June 1999
Date of Judgment:	21 June 1999