Case: Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534
Outcome: followed
As AMOU's submissions point out, the expression ' proceeding in a matter ' in s 824(1) extends to an application made by motion in the course of the principal action: Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 , at 744 (IRC), per Wilcox CJ (with whom von Doussa J agreed); Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534 , at 539 [19]. There is no dispute that s 824(1) applies to an application for interlocutory relief, just as it does to a motion seeking interlocutory orders. Section 824(1) therefore applies both to the costs of SFC's application for interlocutory relief and of the successful motion brought by AMOU and the second respondents for an anti-suit injunction. 21 In Paras v Public Service Body, Young J rejected (at 536 [8]) a submission that s 824(2) is: 'only concerned with acts or omissions in the practical sense of things done or omitted to be done which do not accord with reasonable notions of the conduct of proceedings, such as failing to turn up at a hearing, failing to meet deadlines laid down in court directions and not giving timely notice.' His Honour held (at 538 [16]) that s 824(2): 'is not confined to costs associated with the institution of the proceedings or a step in the proceedings; it extends more broadly to costs incurred as a result of any unreasonable act or omission. On a plain and natural meaning of s 824(2), there is no reason why the reference to an unreasonable act or omission that has caused another party to incur costs in connection with the proceeding should not extend to unreasonable acts or omissions in connection with an interlocutory application. And, as the Explanatory Memorandum suggests, the power conferred by s 824(2) can be exercised irrespective of the outcome of the particular application in question, and of the proceedings as a whole.' 22 SFC's submissions assume that Young J was intending to limit the operation of s 824(2) of the WR Act to an unreasonable act or omission ' in connection with ' the relevant proceeding. In view of his Honour's observation that the sub-section ' extends more broadly to costs incurred as a result of any unreasonable act or omission ' it is by no means clear that his Honour did so intend. It is to be remembered that the statutory criterion is whether a party to a proceeding has, by an unreasonable act (or omission), caused another party in the proceeding to incur costs in connection with the proceeding. 23 SFC's submissions also appear to assume that the relevant ' proceeding ' is SFC's application for a declaration as to the proper construction of the Enterprise Agreements. However, the authorities ([6] above) demonstrate that ' a proceeding ... in a matter ' includes an interlocutory application, such as a motion for an anti-suit injunction. 24 The question posed by the statutory language is whether SFC's unreasonable act (in commencing proceedings in the AIRC while the proceedings in this Court were on foot) caused AMOU and the second respondents to incur costs in connection with their application for an anti-suit injunction. The answer to that question, in my opinion, must be yes, since the motions for anti-suit injunctions were made necessary by SFC's act.