Bourne v Campbell
[1999] FCA 1782
•21 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Bourne v Campbell [1999] FCA 1782
COSTS – termination of an inquiry into the election of the President of the New South Wales Branch of the Australian Hotels Association – whether the proceedings were instituted or without reasonable cause
Workplace Relations Act 1996, Part XII Division 1, Division 2 (s 347(1))
R v Moore, ex parte Federated Miscellaneous Workers Union of Australia [1978] 140 CLR 470, applied
Heidt v Chrysler Australia Ltd [1976] 26 FLR 257, applied
Re Collins [1987] 19 IR 182, referred to
Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257, applied
Imogen Pty Ltd v Sangwin [1996] 70 IR 254, applied
Kagiyama v Southern Cross Limousine Pty Ltd (No. 2) [1997] 72 IR 328, applied
Nilsen v Loyal Orange Trust [1997] 76 IR 180, appliedROBERT JAMES THOMAS BOURNE v MICHAEL CAMPBELL & ORS
N 751 OF 1999
EINFELD J
21 DECEMBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 751 OF 1999
BETWEEN:
ROBERT JAMES THOMAS BOURNE
ApplicantAND:
MICHAEL CAMPBELL & ORS
RespondentsJUDGE:
EINFELD J
DATE OF ORDER:
21 DECEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.as ordered on 5 November 1999, the applicant pay the costs of the first to eighth respondents
2.there be no order as to the costs of the respondents Terence Christopher Healey and the Australian Hotels Association
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 751 OF 1999
BETWEEN:
ROBERT JAMES THOMAS BOURNE
ApplicantAND:
MICHAEL CAMPBELL & ORS
Respondents
JUDGE:
EINFELD J
DATE:
21 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In a judgment given on 5 November 1999, I terminated an inquiry into the election on 9 February 1999 of the President of the New South Wales Branch of the Australian Hotels Association and dismissed the application for the inquiry with costs. At the time of delivery of judgment, the applicant’s lawyer sought leave to reopen the issue of costs so that he could make some submissions on the matter. As the issue of costs had not been specifically addressed at the hearing on 1 November 1999, because no party sought to do so, I allowed submissions to be made and they were delivered to the Court on 10 November. The first to eighth respondents, and the AHA and Mr Healey, seek or support the existing costs order. The applicant opposes any order.
Provision is made in Part XII of the Workplace Relations Act 1996 (the Act) for “Financial Assistance and Costs”. Division 1 of that Part headed “Financial Assistance” first provides for the Minister for Workplace Relations to grant financial assistance to a party to an election inquiry where the application is reasonable and hardship would be inflicted if there was no grant. There is also provision for the Court to certify in an election inquiry case that the person concerned acted reasonably in commencing the proceedings. Neither a ministerial grant nor a court certificate is sought in this case.
Section 347(1) of the Act, which appears in Division 2 of Part XII headed “Costs”, provides that costs may only be awarded against an applicant in a proceeding under the Act if the proceedings were instituted vexatiously or without reasonable cause. It is not suggested, and there is no evidence, that these proceedings were instituted vexatiously.
The question for consideration here is whether these proceedings were instituted without reasonable cause. That term has been said to be something more than that the argument was unsuccessful (R v Moore, ex parte Federated Miscellaneous Workers Union of Australia [1978] 140 CLR 470 at 473 per Gibbs J) and to be what in jurisdictions other than industrial would be an abuse of process (Heidt v Chrysler Australia Ltd [1976] 26 FLR 257 at 272 per Northrop J).
Moreover, in Re Collins [1987] 19 IR 182 at 186, Justice Wilcox found that it was reasonable to grant a certificate for costs even where the application for an election inquiry was dismissed because the dismissal came only after full argument and in circumstances where the applicants co-operated in expediting the inquiry and minimising costs. The applicant submits that these cases and the legislation mean that the Court “cannot make an order for costs” in this case.
However, in Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257, Justice Wilcox said at 264–5:
It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceedings as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.
Although that case is distinguishable on the facts, his Honour’s observations state a generally applicable principle with which I respectfully agree.
Again, in Imogen Pty Ltd v Sangwin [1996] 70 IR 254, a decision of a Full Court of the former Industrial Relations Court of Australia, Wilcox CJ said at 257:
The question would be whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If, having regard to those matters, there was a not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it seems to me it cannot fairly be described as having been instituted “without reasonable cause”. This is so even if, in the result, the appeal proved unsuccessful.
And in Kagiyama v Southern Cross Limousine Pty Ltd (No. 2) [1997] 72 IR 328, Justice Marshall said at 328–9:
There was no dispute as to the appropriate test to be applied to determine whether or not the original application and the review application were each instituted without reasonable cause. That test may be stated as “whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success” such that “where on the applicant’s own version of the facts, it is clear that the proceeding must fail”.
Another but similar view was expressed in Nilsen v Loyal Orange Trust [1997] 76 IR 180, where Justice North said at 181 that:
… when the review was instituted, the review was not utterly hopeless in the sense that it was doomed to failure. For the reasons expressed in my judgment, the applicant’s case was weak, but the fact that it did not have a strong chance of success does not mean that it was instituted without reasonable cause. The evident policy behind s.347 is to allow an applicant, without the risk of paying the costs of the opposing party, to institute a weak case as long as it is not utterly hopeless.
I am quite perplexed by the applicant’s reopening of the costs issue as it forces me to disclose publicly – and adversely to the applicant – what must have been obvious. The judgment in the case clearly demonstrated the complete hopelessness of the applicant’s case and that it was based on a total misconception of the legislation. The termination of the inquiry came about as a consequence of the equivalent of an application by the respondents for summary dismissal of a claim, an event that happens but rarely in litigation. As it had to do, and as the judgment stated, the application for termination proceeded upon the applicant’s version of the facts taken at their highest from the applicant’s point of view. Notwithstanding the clearest of authority on election irregularities, going back many years and well known in the industrial arena, which meant that the application for an inquiry could not succeed, it was pressed to the very end with detailed, if somewhat confused and obfuscatory, submissions, and the advancing of arguments that manifestly could never have succeeded. Like the substantially irrelevant statement of facts he submitted for the purposes of the hearing, the fact that the applicant’s present submissions on the costs issue are in the form and words they are suggests that the message of the judgment has still not been fully imbibed.
It must also be remembered that the applicant sought to upset a ballot for the presidency 6 months after it had taken place. In the intervening period, the new President was already no doubt performing his duties and the Branch had to function. When the application was filed, the applicant placed no evidence or fact before the Court suggestive of either any irregularity in the voting or conduct of the ballot, or of the likelihood that the election outcome was affected by the matters complained of. In these circumstances, the respondents were left with no option but to oppose the application for an inquiry. If they cannot recover their costs, it will be the members of the Branch who will ultimately have to bear them. This result would penalise people who have no responsibility for the incurring of the costs, to the benefit of the person who not only did not succeed in the case but did not succeed in an election agreed to have been correctly conducted both constitutionally and administratively. If any semblance of an arguable case to upset that election had been presented, such a penalty would in the light of the legislation have had to be borne. As there never was such an argument, it is not conceivable that Parliament could have intended such a bizarre result.
The costs order made on 5 November 1999 will stand so far as concerns the first to eighth respondents but there will be no order as to the costs of the AHA or Mr Healey who injected themselves into the proceedings only to take no substantive role in them.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld. Associate:
Dated:
Counsel for the Applicant: Mr J. N. Gallagher SC and Mr G. Bennett Solicitor for the Applicant: Thorntons Lawyers Counsel for the first to eighth Respondents: Mr R. C. Kenzie QC and Mr P. Ginters Solicitor for the first to eighth Respondents: Carroll & O'Dea Counsel for Terence Christopher Healey: Mr G. T. Johnson
Solicitor for Terence Christopher Healey: Australian Government Solicitor
Counsel for the Australian Hotels Association: Mr T. Angelopoulos
Solicitor for the Australian Hotels Association: Mr T. Donaghey
Written submissions completed: 22 November 1999 Date of Judgment: 21 December 1999
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