Darren Shortland v Rothmans of Pall Mall Australia

[1995] IRCA 461

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - COSTS - No appearance by applicant - application dismissed - Respondent proves that applicant had resigned, proceedings therefore instituted without reasonable cause - Applicant ordered to pay respondent's costs.

Industrial Relations Act 1988 ss 170EA, 347

Darren Shortand -v- Rothmans of Pall Mall Australia

No. NI 2656 of 1995

COURT:      PATCH JR
PLACE:       SYDNEY
DATE:         4 SEPTEMBER 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 2656 of 1995

BETWEEN:

Darren SHORTLAND
Applicant

AND:

ROTHMANS of PALL MALL
AUSTRALIA
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY
DATE:          4 SEPTEMBER 1995

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)

This is an application under section 170EA of the Industrial Relations Act 1988("the Act"). The applicant has not appeared. There has been no contact with the Court. The respondent is present, ready to proceed. As the applicant has not appeared, the application is dismissed.

On the question of costs, the respondent's counsel, Mr Fernon, has tendered four documents.  The first document, apparently in the hand of the applicant, reads as follows:

"I hereby tender my resignation and will cease employment after the completion of work on Monday, the second day of May 1994.  This is a formal and undisputed leave request and ceases all contact."

It is signed "D Shortland" and the date, 2.5.94, appears under the signature. 

There is a response to that from the respondent. 

There is another document dated 7 June 1995, again apparently over the signature of the applicant and that document, part of Exhibit 1, contains an assertion by him that he, the applicant, was falsely accused by the respondent company of stealing some cigarettes and an assertion that he had been found not guilty of an offence in relation to that assertion at the District Court of Campbelltown.

I am informed from the bar table, and accept, that the applicant was indeed charged with larceny as a clerk in respect of a large amount of cigarettes and that he was indeed acquitted by a Campbelltown jury earlier this year.  It is the respondent's case, which is supported by the tendered documents, that the applicant in fact resigned.

I am satisfied on the balance of probabilities, on the evidence before me, that that was the fact of the matter.  It follows, therefore, that the application was doomed to failure as there never was a termination of the applicant's employment by the employer.

It follows from that that the application was instituted without reasonable cause and that I therefore have the discretion to order costs against the applicant, that discretion not being displaced by section 347 of the Act.

The respondent has handed up as an aide-memoire, which will be stamped "filed in court", a statement of the respondent's costs prepared, generally speaking, by reference to the second schedule to the Federal Court Rules.  I have gone through that document with the respondent's counsel and updated it to the schedule as applicable since 1 August 1995, as I have been informed that all the work took place since that date.

It seems to me that that statement of costs, as I have amended it, is a reasonable and fair basis upon which to assess the respondent's costs. In particular, counsel's fees of $1,200.00, for appearance in a contested trial in a superior court of record which has been set down for two days, seems to me to be a reasonable amount.

In all the circumstances, I will order the applicant to pay costs in accordance with that aide memoire as amended, in the sum of $3,484.00.  I will initial that aide memoire underneath that figure to identify it.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:         Caroline Sternberg
Date:                  14 September 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 2656 of 1995

BETWEEN:

Darren SHORTLAND
Applicant

AND:

ROTHMANS of PALL MALL
AUSTRALIA
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY

DATE:          4 SEPTEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent's costs in the sum of $3,484.00.