Brian Gerard "Mick" Doyle v Western Suburbs District Rugby League Football Club Limited
[1994] IRCA 132
•9 Dec 1994
C A T C H W O R D S
COSTS - Industrial Relations Court of Australia - whether proceedings brought vexatiously or without reasonable cause.
Industrial Relations Act 1988, ss376, 377
Nicholson v Heaven and Earth Gallery Pty Ltd, unreported, 20
September 1994 per Wilcox CJ
Da Sousa v Minister for Immigration, Local Government and
Ethnic Affairs (1993) 114 ALR 708
Kanan v Australian Postal and Telecommunications Union (1992)
43 IR 257
No. NI 527 of 1994
BRIAN GERARD "MICK" DOYLE v WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED
MOORE J
SYDNEY
9 DECEMBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 527 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: BRIAN GERARD "MICK" DOYLE
Applicant
AND: WESTERN SUBURBS DISTRICT RUGBY
LEAGUE FOOTBALL CLUB LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 9 December 1994
REASONS FOR JUDGMENT
This judgment is supplementary to, and should be read with, reasons for judgment I gave on 27 October 1994 in this matter.
I reserved the question of costs when I made an order dismissing the notice of motion on 25 October 1994. I have since received written submissions from both the applicant and the respondent on the question of costs. The applicant seeks the costs of the notice of motion. I can only order that costs be paid by a party if the party instituted the proceedings vexatiously or without reasonable cause: s347 of the Industrial Relations Act 1988 ("the Act"). This limitation has no application to costs orders made against third parties: see Nicholson v Heaven and Earth Gallery Pty Ltd, unreported, 20 September 1994 per Wilcox CJ which might, in appropriate cases, include the legal representative of a party: see Da Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 114 ALR 708.
In the present case much of what was sought in the notice of motion would enable the application to be characterised as having been brought both vexatiously and without reasonable cause. The submission made by the respondent that the notice of motion was arguable because it took almost an hour to hear is a spurious one.
However the issue raised by the respondent concerning the alleged ostensible bias of the Judicial Registrar, I described in my earlier judgment as "the only matter of substance raised in the notice of motion". The contention that the Judicial Registrar was ostensibly biased was wrong. However the role of the Judicial Registrar, indeed the Court as a whole, is new as is the role of the Australian Industrial Relations Commission in conciliating applications brought under s170EA of the Act. The statutory prohibition in s104 of the Act on the disclosure of what occurred in conciliation proceedings concerning an industrial dispute may have provided some, though limited, grounds for the respondent believing that the disclosure to a Judicial Registrar of what occurred in the conciliation of an application under s170EA may result in the Judicial Registrar being ostensibly biased. It cannot be said, in my opinion, that it should have been apparent to the respondent at the time of filing the notice of motion that there was no substantial prospects of success: see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-265.
I am, on balance, satisfied that the notice of motion was not brought vexatiously or without reasonable cause. Accordingly I am precluded by s347 from ordering the respondent to pay the costs of the notice of motion.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:9 December 1994
Counsel for the Applicant: Mr A. Moses
Solicitor for the Applicant: Marsdens, Solicitors
Solicitor for the Respondent: Mr R. McClelland
of Turner Freeman
Date of hearing: 25 October 1994
Date of judgment: 9 December 1994
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