Dailey, A.R. v North Queensland Marine Towage Pty Ltd

[1992] FCA 944

JUDGMENT No. ...??.!kk.l ...f?.k

I N THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) N o N I 17 of 1990

INDUSTRIAL D I V I S I O N 1

BE!J!WEEN	ALFRED ROBERT DAILEY
Applicant

AND NORTA OUEENSLAND W I N E

TOWAGE PTY LIMITED

Respondent

EINFELD J SYDNEY 1 JULY 1992

There is before the Court today a notice of motion brought by North Queensland Marine Towage Pty Limited (the respondent) seeking an order that the amended application of 17 January 1991 be dismissed with costs. The solicitor for Alfred Robert Dailey (the applicant) submitted that leave be granted for the proceedings to be discontinued rather than dismissed.

There is no warrant for a grant of leave under Order 22 rule 2(l)(d) to discontinue these proceedings. The matter has proceeded to first instance and appeal judgments on the first point which the parties put up for consideration. It seems to me that it would be a rare case where in such circumstances the proceedings would be permitted to be withdrawn so that in effect they never existed. Moreover, the only purpose that I can think of, and no one has argued to the contrary, for the withdrawal as opposed to the dismissal of a case in these

constitute the proceedings in a more satisfactory form. That
circumstances would be to permit the applicant to re-

cannot happen in this particular case in view of the result that has been achieved and there is therefore no ground for refusing the respondent's motion that the amended application

be dismissed. , -

The respondent asks for costs notwithstanding the fact that the Industrial Relations Act 1988 makes only liinited . , provision for awards of costs in matters arising under it. It is not suggested by the respondent that these proceedings were brought vexatiously or without reasonable cause. What the respondent argues is that the proceedings were, in large measure, misconceived. In substance the respondent argues that the proceedings involved an action for damages by the applicant which could not possibly have succeeded on any reasonable basis. Further, if the appeal had gone the other way and the case itself had been fought, the proceedings would not have had any basis under or association with the Industrial Relations Act.

As the Full Court pointed out, and as I think I mentioned at a

very early stage in the case, the proceedings were strangely	constituted. In substance they amounted to an application by
the applicant for a penalty for breach of an award, the first stage in which was the interpretation of the award. This was the exercise undertaken at first instance and the Full Court permitted the matter to proceed in that way on appeal. The situation was thus that the parties agreed on the form of the proceedings at trial and on appeal, and invited the Court to resolve the issue which they chose to put up for resolution.
In these circumstances it does not now appear to me to be open to the respondent to argue that in fact the dispute was before the Court on matters which were in substance unrelated to the Industrial Relations Act and that the costs of the proceedings are therefore open to consideration outside the framework provided by the Act.
In my opinion the approach taken by Mr Justice Hill in eorae Albert Bvrne & Georae Mortimer Frew v Australian Airlines Limited (unreported, 4 June 1992) is the correct one. The proper order here is that there should be no order as to the costs of the proceedings. The amended application will therefore be dismissed and the parties will bear their own costs.

certt'y that t h ~ s and the f d o

precellnr: pzrjns are a t r ~ ~ e	copy 0: the
Rezs-.ns for Jubgn-ni h.;re,n	of h,s Honour
Just~co	E,nfe:r: