Cross and Bailey v Neat N' Trim Uniforms Pty Ltd A.C.N. 005 858 006
[1997] IRCA 54
•06 March 1997
DECISION NO:54/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application to adjourn hearing - application by non party for leave to “intervene” - COSTS - whether application for leave to intervene instituted without reasonable cause
Workplace Relations Act 1996 ss 469, 470, 347
Shackley v The Australian Croatian Club Limited (unreported, IRCA, Full Court, 17 December 1996)
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Foxcroft v The Ink Group Pty Ltd 1 IRCR 215
Nicolson v Heaven and Earth Gallery Pty Ltd 1 IRCR 199
SHARLENE CROSS - v - NEAT AND TRIM UNIFORMS
A N D
GARY STEPHEN BAILEY - v - NEAT N’ TRIM UNIFORMS PTY LTD A.C.N. 005 858 006
No. VI 2413 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 6 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2413 of 1996
B E T W E E N :
SHARLENE CROSS
Applicant
A N D
NEAT AND TRIM UNIFORMS
Respondent
A N D
IN THE MATTER of an Application for leave to intervene made pursuant to Section 470 of the Workplace Relations Act 1996
B E T W E E N :
GARY STEPHEN BAILEY
Applicant
A N D
NEAT N’ TRIM UNIFORMS PTY LTD
A.C.N. 005 858 006
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 6 March 1997
IN THE MATTER of an Application for leave to intervene made pursuant to Section 470 of the Workplace Relations Act 1996 THE COURT ORDERS THAT:
Within 21 days of the date of making these orders Gary Stephen Bailey pay to the respondent costs in the sum of $2,040.00.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2413 of 1996
B E T W E E N :
SHARLENE CROSS
Applicant
A N D
NEAT AND TRIM UNIFORMS
Respondent
IN THE MATTER of an Application for leave to intervene made pursuant to Section 470 of the Workplace Relations Act 1996
B E T W E E N :
GARY STEPHEN BAILEY
Applicant
A N D
NEAT N’ TRIM UNIFORMS PTY LTD
A.C.N. 005 858 006
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 6 March 1997
REASONS FOR DECISION
On 26 November 1996 the principal proceeding between the applicant, Sharlene Cross, and the respondent was the subject of a directions hearing before me, on which date orders were made by consent for, amongst other things, a hearing date on 4 March 1997. At the directions hearing, Gary Stephen Bailey “appeared” on behalf of the applicant. Despite Mr Bailey’s assertion to the contrary, on that occasion the transcript confirms that at no time did Mr Bailey make any application to the Court in respect to his right to represent the applicant before this Court.
The principal proceeding came on for hearing on 4 March 1997 before me. At hearing the respondent was duly represented by counsel, Mr A. Lindeman, and Mr Bailey initially applied to the Court for leave to appear on behalf of the applicant and then sought leave to intervene. I proceeded to hear this last application in which Mr Bailey sought to rely on section 470 of the Act. Sections 469 and 470 of the Act provide as follows:
“469 Representation of parties before Court
(1)A party to a proceeding before the Court in a matter arising under this Act may appear in person.
(2) Subject to this and any other Act, a party to a proceeding before the Court in a matter arising under this Act may be represented only as provided by this section.
(3)A party (including an employing authority) may be represented by counsel or solicitor.
(4)An employing authority may be represented by a prescribed person.
(5) Regulations made for the purposes of subsection (4) may prescribe different classses of persons in relation to different classes of proceedings.
(6)Subject to subsections (8) and (9), a party that is an organisation may be represented by:
(a) a member, officer or employee of the organisation; or
(b) a member, officer or employee of a peak council to which the organisation is affiliated.
(7) Subject to subsections (8) and (9), a party other than an organisation or employing authority may be represented by:
(a) an officer or employee of the party; or
(b) a member, officer or employee of an organisation of which the party is a member; or
(c) an officer or employee of a peak council to which the party is affiliated; or
(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.
(8) Subsections (6) and (7) do no apply in relation to:
(a) proceedings under section 422; or
(b) proceedings in relation to offences against this Act.(9) In a relevant proceeding, a party may be represented as provided by subsection (6) and (7) only with the leave of the Court.
(10) In this section:
party includes an intervener;relevant proceeding means proceedings under section 46, 82, 153, 413 or 413A.
470 Intervention generally
If the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding.”
As can be seen from the abovementioned provisions, Mr Bailey, who described himself as an industrial advocate, is not a person who is included in the class of individuals or organisations entitled to be heard as a representative of a party by reference to the provisions contained in section 469 of the Act. Nor does this section give a discretion to the Court to permit other representation. In his decision in Nicolson v Heaven and Earth Gallery Pty Ltd 1 IRCR 199, His Honour Chief Justice Wilcox had occasion to deal with an application by an industrial advocate seeking to represent the respondent at hearing. In refusing that application His Honour made the following pertinent observations:
“I mention this matter because it is important that everybody concerned with litigation in the Industrial Relations Court be aware of the limitations on representation imposed by s.469 of the Act. The problem is likely to be particularly acute in relation to unlawful termination claims, where the financial stakes are relatively small and parties will often be reluctant to incur the expense of legal representation. Those seeking to represent parties must ensure they have a right of audience. If they fail to do so, and thereby place the Court in the position of having to grant an adjournment in order to avoid prejudice to their client, they face a real prospect, in future, that the Court will order them personally to pay the costs incurred by the opposing party and thrown away by reason of the adjournment. The Court has power to make costs orders: see Canceri v Taylor (Moore J, 11 August 1994, not yet reported). This power extends to the making of orders against third parties: see Knight v F P Special Assets Ltd (1992) 174 CLR 178, Bent v Gough (1992) 36 FCR 204, Re Wridgemont Display Homes Pty Ltd (1992) 39 FCR 193 and Oz B and S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128. The limitation upon the Court's power to order payment of costs that is imposed by s.347 of the Industrial Relations Act applies only in relation to inter-parties orders. The section has no application in relation to costs orders made in favour of, or against, third parties.”
With regard to section 470 of the Act, Mr Bailey provided no proper or arguable grounds upon which I could be satisfied that as an industrial advocate he is a person who should be granted leave to be heard in a proceeding before the Court in a matter arising under the Act. When hearing Mr Bailey’s application it was apparent to me that he took the view that if leave was sought to represent the applicant at hearing, the Court might just grant that leave, however, he could not point to any power vested in the Court to do so and, as I have already noted, I do not have any discretion in this matter. Accordingly, I dismissed the oral application made to the Court.
The applicant was present in Court on the return date and was invited to proceed with her case or make any other application she sought to make to the Court. She took the opportunity to seek an adjournment of the proceeding to enable her to obtain legal representation. This application was formally opposed by the respondent who had attended Court prepared to proceed to a hearing and who had, through its solicitors, already canvassed with Mr Bailey the question of his right to appear on the return date on 4 March 1997. I acceded to the applicant’s application because of the circumstances she found herself in and as a result the principal proceeding was adjourned to a mention date on 18 March 1997 and Ms Cross was released from further attendance at Court on the hearing date to prepare her case. Following this the respondent sought an order for costs against Mr Bailey pursuant to section 347 of the Act in respect to his unsuccessful application. No order was sought relying on the power the Court has to make cost orders against third parties. However, had it been made in the alternative, the circumstances of this case certainly provide a basis for arguing that Mr Bailey, as a third party, should bear the costs thrown away by reason of his conduct.
Section 347 provides as follows:
“(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2) In subsection (1):
costs includes all legal and professional costs and disbursements and expenses of witnesses.”
The costs sought are for counsel’s brief fee and the instructing solicitor’s costs of attending Court for three hours on the return date totalling $2,040.00. In making the application for costs the respondent argued that the oral application made by Mr Bailey was made without reasonable cause.
Amanda Elizabeth Birmingham, a solicitor employed by Phillips Fox, gave evidence to the Court that she has the conduct of the proceeding on behalf of the respondent. Mr Bailey also gave sworn evidence to the Court.
The application filed on behalf of the applicant in the Australian Industrial Relations Commission on 5 September 1996 is signed by a “Gary Bailey” as the authorised representative and names “Gary Bailey & Co, Industrial Relations Court Advocates”, as the applicant’s representative where the application form requires details of representation.
Mr Bailey told the Court that it was not his intention to appear as the applicant’s representative at hearing and that he had exhausted all possible avenues of representation; namely, three barristers he usually briefs, before coming to Court and seeking an order pursuant to section 470 of the Act. Nevertheless he did acknowledge that on 9 September 1996 he wrote directly to the respondent stating the following (Exhibit R1):
“I confirm that I act for and on behalf of the above named person in relation to this matter.
In relation to our recent telephone conversation, I look forward to your written correspondence re this matter.
Any queries please contact the writer.”
He told the Court that he believed Ms Birmingham had assumed that he was going to appear as the applicant’s representative at hearing, however, such assumption was not based on any indication given by him to her or the respondent. Of course, the letter to the respondent dated 9 September 1996 and the completing of the application filed with the Australian Industrial Relations Commission, may have at least given the respondent that impression and, as will be seen from evidence given by Ms Birmingham and referred to below, oral representations were made to her which to her mind expressed an intention on Mr Bailey’s part to represent the applicant at hearing.
Mr Bailey also told the Court, in response to a specific question from the Court, that he did not require the leave of the Australian Industrial Relations Commission to appear before the Commission, that he had appeared many times without leave both before the Commission and this Court and, in this case, had represented the applicant before the Commission.
Division III and specifically sections 42 and 43 of the Act make provision for representation and the making of intervention orders in the Commission. These provisions mirror sections 469 and 470 of the Act. It is apparent from Mr Bailey’s comments to the Court and his conduct at the directions hearing that his modus operandi is to appear and, unless challenged, purport to act as a representative of a party.
Contrary to the evidence given by Mr Bailey, Ms Birmingham told the Court that, in January this year, she spoke to Mr Bailey and told him that it was her understanding that he had no right to appear on behalf of the applicant. Her reason for raising this with him was to ascertain whether Mr Bailey intended to refer the matter to a solicitor with whom she could communicate. Ms Birmingham received a response from Mr Bailey which she says indicated to her that he believed he had a right to appear, that he had done so on previous occasions and that it was his intention to appear on the return date. She then suggested, not suprisingly, that he read the Act. I have no hesitation in accepting her evidence on this matter as it is apparent that Mr Bailey has on at least one other occasion appeared before me in this Court without informing the Court that he then did not have a right of audience.
On Friday, 28 February 1997 Ms Birmingham received a call from a solicitor, who identified himself as Jim Caravias. He told Ms Birmingham that he was then acting for the applicant. There is no record of any notice to the Court of this solicitor’s representation of the applicant. On Monday, 3 March 1997 Ms Birmingham returned a telephone message left for her by Mr Bailey and, in the course of their conversation, she asked Mr Bailey who was acting for the applicant. She was informed that Mr Bailey was and they proceeded to discuss the proceeding. As at the hearing date she had not received any further communication from Mr Caravias.
In respect to the oral application for an intervention order, Mr Bailey is an unsuccessful party. The test most frequently relied upon for determining whether an application and, in particular, this application (and I accept that the application made is a proceeding in the sense described by the Full Court in Shackley v The Australian Croatian Club Limited (unreported, IRCA, Full Court, 17 December 1996)) was instituted without reasonable cause, is that contained in the decision of Justice Wilcox (as he then was) in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 where he says at page 264:
“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 proceeding 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. ...”
In my view at the relevant time Mr Bailey knew that he did not have an entitlement to appear in this Court and, on the facts apparent to him at the time of making his application for an intervention order, there was then no substantial prospect of success. Indeed, the application by Mr Bailey was groundless and entirely misconceived (see the decision of Chief Justice Wilcox in Foxcroft v The Ink Group Pty Ltd 1 IRCR 215). On the return date I reserved my decision on the costs application. I am satisfied that the applicant pursuant to section 470 was instituted without reasonable cause. In these circumstances I propose to make an order that Gary Stephen Bailey pay the costs incurred by the respondent arising out of the application to intervene and such costs are fixed at $2,040.00.
During the hearing of the intervention application it was noted that the respondent’s title was not accurately described. Accordingly, Mr Bailey and the respondent consented to the amendment of the title to “Neat N’ Trim Uniforms Pty Ltd A.C.N. 005 858 006”. As by that stage the applicant had been released, the amendment was, of necessity, confined to the proceeding between Mr Bailey and the respondent, with the respondent acknowledging the need to take appropriate steps to make the same amendment in the principal proceeding in due course.
MINUTES OF ORDERS
IN THE MATTER of an Application for leave to intervene made pursuant to Section 470 of the Workplace Relations Act 1996 THE COURT ORDERS THAT:
Within 21 days of the date of making these orders Gary Stephen Bailey pay to the respondent costs in the sum of $2,040.00.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding eight (8) pages are a true copy of the reasons for decision of Judicial Registrar Millane.
Associate:
Dated: 6 March 1997
Mr Bailey appeared on his own behalf.
Solicitors for the Respondent: Phillips Fox
Counsel for the Respondent: Mr A. Lindeman
Date of hearing: 4 March 1997
Date of decision: 6 March 1997
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