City of Mandurah v Hull

[2000] WASCA 353

CITY OF MANDURAH -v- HULL [2000] WASCA 353

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2000] WASCA 353
Case No:	IAC:5/1999	Heard:	16 NOVEMBER 2000
Coram:	KENNEDY J  (Presiding Judge) ANDERSON J McKECHNIE J	Delivered:	16/11/00
No of pages:	4	Judgment Part:	1 of 1
Result:	Certificate for second counsel granted
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Parties:	CITY OF MANDURAH WILLIAM HULL
Catchwords:	Costs Matter arising under Commonwealth Constitution Order for costs thrown away by reason of appellant having failed to serve requisite notices under s 78B(1) of the Judiciary Act 1903 (Cth) Application for certificate for second counsel Failure to apply for certificate when order made for costs Court would have granted certificate if sought at time of making order for costs
Legislation:	Judiciary Act 1903 (Cth), s 78
Case References:	Smith v Madden (1946) 73 CLR 129 Snowtop Mushrooms Pty Ltd v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Cappucio v Chrysler Aust (Sales) Pty Ltd (1980) 30 ALR 176 Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996 Oldaker v Currington [1987] VR 712 Stanley v Phillips (1966) 115 CLR 470

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : CITY OF MANDURAH -v- HULL [2000] WASCA 353 CORAM : KENNEDY J (Presiding Judge)

ANDERSON J
McKECHNIE J

HEARD : 16 NOVEMBER 2000 DELIVERED : 16 NOVEMBER 2000 FILE NO/S : IAC 5 of 1999 BETWEEN : CITY OF MANDURAH

Appellant

AND

WILLIAM HULL
Respondent

Catchwords:

Costs - Matter arising under Commonwealth Constitution - Order for costs thrown away by reason of appellant having failed to serve requisite notices under s 78B(1) of the Judiciary Act 1903 (Cth) - Application for certificate for second counsel - Failure to apply for certificate when order made for costs - Court would have granted certificate if sought at time of making order for costs

Legislation:

Judiciary Act 1903 (Cth), s 78

Result:

Certificate for second counsel granted

(Page 2)

Representation:

Counsel:

Appellant : Mr A Randles
Respondent : Mr R C Kenzie & Mr A L Drake-Brockman

Solicitors:

Appellant : Mr A Randles
Respondent : Dwyer Durack

Case(s) referred to in judgment(s):

Smith v Madden (1946) 73 CLR 129
Snowtop Mushrooms Pty Ltd v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982

Case(s) also cited:

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Cappucio v Chrysler Aust (Sales) Pty Ltd (1980) 30 ALR 176
Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996
Oldaker v Currington [1987] VR 712
Stanley v Phillips (1966) 115 CLR 470

(Page 3)

1 JUDGMENT OF THE COURT: In this appeal, the appellant sought to argue that the definition of "employee" in the Industrial Relations Act 1979 should be read down to exclude employees covered by federal awards. It was further argued by the appellant that, by virtue of s 109 of the Commonwealth Constitution, the unfair dismissal provisions in the Industrial Relations Act 1979 were invalid as a result of their direct or indirect inconsistency with the provisions of both the Workplace Relations Act 1996 (Cth) and an award of the Australian Industrial Relations Commission.

2 On the first day fixed for the hearing of the appeal, the proceedings had to be adjourned by reason of the appellant having failed to serve the notices which, having regard to the Constitutional issues raised in the appeal, were required to be served under s 78B(1) of the Judiciary Act 1903 (Cth). This was not a mere oversight, the appellant having been advised some time previously of the necessity for service of the notices.

3 In these circumstances, the respondent unnecessarily incurred the cost of counsels' attendance at the hearing. The Court therefore ordered, pursuant to s 78B(2)(a) of the Judiciary Act, that the appellant should pay the costs of the day. No application was, however, made at that time for a certificate for second counsel, two counsel having appeared at the hearing on behalf of the respondent. Such an application has now been made.

4 We accept the respondent's submission that the appellant's claim had wide-ranging ramifications as it potentially affected the rights of a significant number of employees in this State to bring actions for unfair dismissal. Had the appellant's argument been successful, an employee covered by a federal award, but not employed by a constitutional corporation, would not have had recourse either to the State or to the Federal Industrial Relations Commission in a claim for unfair dismissal. The importance of the case was confirmed by the intervention of the Attorney General for Western Australia and the Western Australian Minister for Labour Relations.

5 We have no doubt that, had an application for a certificate for second counsel been made on the first day set down for the hearing, it would have been granted - see Snowtop Mushrooms Pty Ltd v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982. It was, in our opinion, entirely reasonable and proper for the respondent to engage senior counsel and second counsel in this matter, which gave rise to significant issues - see Smith v Madden (1946) 73 CLR 129, per Dixon J at 132. Notwithstanding the respondent's delay in making the application, we are

(Page 4)

satisfied that this Court should exercise its discretion in favour of the respondent. The time for making the application should be extended as may be necessary, and the certificate should be granted. The costs should be taxed on the Supreme Court scale by a taxing officer of the Court.