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 had not read the particulars and had not had or been offered an opportunity to read and check the particulars in the context of or against the statement of claim

4. his admission that he had only discovered this morning that his claim may have proceeded on the basis that he was, throughout his employment, a casual employee and if the claim was prepared on that basis it was prepared on an incorrect basis, given that he was a permanent employee for considerable periods of time during his employment with the respondent

5. evidence under cross-examination which, while conflicting, appears to constitute admissions that certain log entries from 6 October to 11 October 1995 and on 13 and 14 October 1995 are inaccurate

6. evidence under cross-examination to the effect that the claim and the particulars attached to the claim need (to use the applicant’s words) “fine tuning” to be an accurate claim.

I certainly agree with Gibbs J in Law and Others ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 at 473 that:

“A party cannot be said to have commenced a proceeding without reasonable cause within the meaning of that section simply because his argument proves unsuccessful.”

However, in terms of Canceri v Taylor (1994) 1 IRCR 120; 55 IR 316, I have no doubt that these can be said to be proceedings instituted without reasonable cause. Accordingly, and pursuant to s347, I will order that the applicant pay the respondent’s costs. I have already dismissed the application but the formal orders of the Court are:

1. that the application be dismissed

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

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

Associate:

Dated:             16 February 1998

Counsel for the Applicant:	Mr L Harper
Solicitor for the Applicant:	Jennings Elliott
Counsel for the Respondent:	Mr S McElwaine
Solicitor for the Applicant:	Shaun McElwaine
Date of Hearing:	5 February 1998
Date of Judgment:	5 February 1998