Coulson v Gosford Meats Pty Ltd

[1985] FCA 413

Re: MAXWELL COULSON
And: GOSFORD MEATS PTY. LIMITED (1985) 7 FCR 109
N.S.W. No. 28 of 1983
Costs - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Costs - whether hearing "discontinued" - application for certificate.

Federal Proceedings (Costs) Act 1981, s. 10(3).

Practice and Procedure - Costs - Hearing fixed to commence on a particular date but no judge available - Whether hearing discontinued - Federal Proceedings (Costs) Act 1981 (Cth), s 10(3)(a).

HEADNOTE

A hearing which has been fixed to commence on a particular date but which does not do so because no judge of the court is available to hear it, has been "discontinued" within the meaning of s 10(3)(a) of the Federal Proceedings (Costs) Act 1981 (Cth).

HEARING

Sydney, 1985, June 24-27. #DATE 27:6:1985
APPLICATION

Application pursuant to s 119 of the Conciliation and Arbitration Act 1904 (Cth).

R Madgwick QC and J W Shaw, for the applicant.

M Cockburn, for the respondents.

Cur adv vult

Solicitors for the applicant: White Barnes & McGuire.

Solicitors for the respondent: Michie Shehadie & Co.

GFV

ORDER

Orders accordingly

JUDGE1

This matter has proceeded before me for some days now. It is an application made under s. 119 of the Conciliation and Arbitration Act 1904, in which it is alleged that the respondent has acted in breach or non-observance of an award, in failing to make the required payments to one particular employee and, in consequence of that, to a number of other employees. The employees concerned were, at the relevant times, employed as boners in the works of the respondent at Gosford.

After some negotiations today, the parties have settled their differences, on the basis that the proceeding will be withdrawn by leave and certain undertakings will be given by each of the parties. I propose to grant leave to withdraw.

There has also been made to me, by each of the parties, an application for a certificate pursuant to s. 10(3) of the Federal Proceedings (Costs) Act 1981. It appears that, at a directions hearing on 7th September 1984, the matter was specially fixed for hearing on Monday 26th November 1984 at Sydney. It was also further listed for directions and for the return of any subpoenas on the Friday immediately preceding that day, 23rd November 1984.

On Friday 23rd November 1984, the solicitor for the respondent appeared before the judge hearing the directions list. He indicated that he did not desire any subpoenas to be called on that morning. The following exchange occurred:

His Honour: "Matter No. 32 will remain in the list for Monday. It is going on, on Monday, is it?"

Mr. Shehadie: "It is."

His Honour: "How long will it take?"

Mr. Shehadie: "It has been listed for three days?"

At that stage, on Friday 23rd November 1984, both parties were firmly of the view the matter would proceed for trial on the following Monday. On the Monday morning the matter was not listed in the law list which appeared in the newspaper. Junior counsel for the respondent made certain inquiries and was told that no judge of this Court was available to hear the matter. Communication was also made to junior counsel for the applicant in the same terms, and it was advised that the matter should be put into a list for directions at a future date.

In a matter of this nature it is not surprising that considerable expense had been incurred in preparation for the hearing on 26th November 1984. Such expense was incurred on the side of the applicant by way of conferences, the briefing of senior and junior counsel and the bringing of witnesses to Sydney, one from Queensland and several from the Newcastle district of New South Wales. I have no doubt that similar expenses were incurred in similar ways on the side of the respondent.

In these circumstances I have to decide whether s. 10(3) of the Federal Proceedings (Costs) Act 1981 is applicable. That sub-section, which applies to the Federal Court, provides:

"(3) Subject to this Act, where-

(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and

(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,

the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings."

The first question which arises is whether the hearing can properly be said to have been "discontinued", within the meaning of the section. Although, in a sense, the hearing had not actually begun, it had been specially fixed for a particular date, time and place, and it did not proceed at the appointed time, on the appointed date, at that place, or at all. In those circumstances I have no hesitation in holding that the hearing was discontinued, within the meaning of that word as used in s. 10(3).

Nor do I have any hesitation in holding that the discontinuance was not attributable to the neglect, default or improper act of either of the parties to this proceeding.

There being no other matter which would indicate that the discretion should be applied against the parties, it follows that I should grant to each of the parties a certificate of the kind contemplated by the sub-section. Indeed, in circumstances where the failure of the hearing to continue seems to have been the result of the problems which have arisen as to the availability of judges of the Court, it might seem to be an unjust result if the parties were put to expense when a provision such as this exists in the Act.

I have been asked also to express a view as to the appropriateness of senior counsel appearing in this matter. There is no doubt in my mind that the complexity of issues of law and fact in this matter amply justified the briefing of senior counsel, and senior counsel were in fact briefed by each party.

Perhaps the exhibits could be returned. I do not think there is any need to hold them. There is a provision in the rules for their automatic return after a period of time, but where the matter is settled I do not see any reason for them to be retained any longer.

Upon the undertakings which have been given by counsel for the applicant and respondent, I make the following orders:

1. I grant to the applicant leave to discontinue the proceedings and I note that no costs will be sought by the respondent with respect to that discontinuance.
2. I grant to each of the applicant and the respondent a certificate in respect of the fixing of the hearing for 26th November 1984, pursuant to s. 10(3) of the Federal Proceedings (Costs) Act 1981.
3. I direct the return of the exhibits to the respective parties.