Doyle v Prices Removal and Storage

[1998] FCA 84

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - claim for wages - costs - whether proceedings instituted without reasonable cause

Workplace Relations Act 1996 - s179, s347

Law and Others ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470

Canceri v Taylor (1994) 1 IRCR 120; 55 IR 316

DOYLE v PRICES REMOVALS & STORAGE
TG 23 of 1997

Judicial Registrar Ryan
Hobart

5 February 1997

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 23  of   1997

BETWEEN:	WAYNE DOYLE APPLICANT
AND:	PRICES REMOVALS & STORAGE RESPONDENT
JUDICIAL REGISTRAR:		RYAN
DATE OF ORDER:		5 FEBRUARY 1998
WHERE MADE:		HOBART

THE COURT ORDERS THAT:

1. that the application be dismissed

2. that the applicant pay the costs of the respondent pursuant to s347

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 23 of 1997

BETWEEN:	WAYNE DOYLE APPLICANT
AND:	PRICES REMOVALS & STORAGE RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	5 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)

On 6 November 1997 the applicant, through his solicitors, filed an application under s179 of the Workplace Relations Act 1996 seeking orders that the respondent pay the applicant:

1. the sum of $26,190.20 by way of entitlement to wages pursuant to the Transport Workers Award 1983; and

2. interest on the above amount pursuant to s179A of the Workplace Relations Act 1996

A statement of claim was filed on that day and included particulars alleging the applicant’s employment with the respondent was on a casual basis on days and times set out in annexure A to the statement of claim.

The applicant, Wayne Doyle, gave evidence-in-chief this morning and was under cross-examination from about 11.35 am till about 12.40 pm when, at the suggestion of counsel for the respondent, the matter was adjourned. I adjourned proceedings to 2.15 pm and suggested that in the light of the evidence given to that time, counsel for the applicant consult with his client over the luncheon adjournment. Counsel for the respondent did not object to that suggestion.

At 2.15 pm counsel for the applicant indicated that his client did not propose to proceed further with his application. I indicated that, in the circumstances, I proposed to dismiss the application. Counsel for the respondent then applied for costs under s347 on the basis that the proceedings were instituted vexatiously or without reasonable cause.

I have concluded that the proceedings were instituted without reasonable cause in that, in the way in which they were instituted, there never was any likelihood that the proceedings could succeed. I note the following evidence given by the applicant this morning:

1. his belief that the particulars attached to the statement of claim were prepared by the Transport Workers Union on the basis of information supplied by him, including certain log books and diaries

2. his belief that the union forwarded particulars to his solicitors who then issued proceedings

3. his admission that he had not had an opportunity, prior to the hearing, to read the particulars and…