Australian Collieries Staff Association v Newlands Coal Pty Ltd

[1998] FCA 1721

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 120 of 1997

BETWEEN:	AUSTRALIAN COLLIERIES STAFF ASSOCIATION APPLICANT
AND:	NEWLANDS COAL PTY LTD (ACN 010 082 578) RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	2/12/98
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 120 of 1997

BETWEEN:	AUSTRALIAN COLLIERIES STAFF ASSOCIATION APPLICANT
AND:	NEWLANDS COAL PTY LTD (ACN 010 082 578) RESPONDENT

JUDGE:	DRUMMOND J
DATE:	2/12/98
PLACE:	BRISBANE

REASONS FOR JUDGMENT

In view of the exchange of correspondence between the solicitors for the parties, which I have marked exhibit N1, and notwithstanding what the Union now says about its interest in cross-examining Mr Hall on the issue of penalty, the Union’s behaviour up to trial in insisting, by its solicitors, upon Newlands incurring the expense of bringing its deponent Mr Hall to Court on the day of the hearing for cross-examination and then indicating at the hearing it did not wish to cross-examine Mr Hall involves the kind of unreasonable behaviour which would well justify it being ordered to pay Newlands’ costs of procuring Mr Hall’s attendance at Court, if s 347 contained a provision similar to that in s 170CS(1)(b) the Workplace Relations Act 1996.  If the Union had, against the background revealed by the correspondence, required Mr Hall to go into the witness box for pointless cross-examination, that would not have altered my view.

However, s 347 only confers power on the Court to order a party to a proceeding like the present to pay the costs of the other party if the first mentioned party instituted the proceeding vexatiously or without reasonable cause.  The question of construction of the Award raised by the Union and which was central to the “matter”, within the meaning of that term in s 347, was an arguable one.  I am not prepared to infer from the Union’s wholly unreasonable behaviour in relation to the witness Hall that the proceeding itself was instituted vexatiously or without reasonable cause.  There is no other basis upon which it can be suggested that a costs order should be made against the Union.

There will be no order as to costs.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             2/12/98

Counsel for the Applicant:	Mr JE Murdoch
Counsel for the Respondent:	Mr S Howells
Solicitor for the Respondent:	Nall Payne
Date of Hearing:	5 November 1998
Date of Judgment:	2 December 1998