Farrell v Conagra Wool Pty Ltd

[1997] IRCA 163

DECISION NO:163/97

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
no appearance at hearing on behalf of applicant - application dismissed -
COSTS - application for costs by respondent -

Workplace Relations Act 1996 ss 170EA, 170EHA, 347

FARRELL -V- CONAGRA WOOL PTY LTD
VI 2546 of 1996

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          21  APRIL  1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2546 of 1996

B E T W E E N:

Joseph Patrick FARRELL
Applicant

A N D

CONAGRA WOOL PTY LTD
Respondent

MINUTES OF ORDERS

21  APRIL  1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The application pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed.

1. Within 28 days of today’s date the applicant pay to the respondent costs fixed in the sum of $6201.00.

NOTE:   Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court    Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2546 of 1996

B E T W E E N:

Joseph Patrick FARRELL
Applicant

A N D

CONAGRA WOOL PTY LTD
Respondent

REASONS FOR DECISION
(delivered ex-tempore - revised from transcript)

21  APRIL  1997  PARKINSON JR

This matter was listed for trial on this day pursuant to directions made by Judicial Registrar Millane and on a further occasion, Judicial Registrar Ryan. 
I am satisfied that the applicant in these proceedings has had notice of the proceedings, sent by the Court, such notice also being forwarded to him by the respondent in the proceedings. Having regard to those facts and the failure of the applicant to appear upon the proceedings this day, it is the order of the Court that the application be dismissed. Together with that order the respondent seeks costs in the proceedings. The application is brought pursuant to Section 170EHA of the Act and a further application made pursuant to Section 347 of the Act on the basis that the respondent contends that the proceedings have been initiated without reasonable cause.

In support of the costs application, the respondent refers to the correspondence contained in the Affidavit of Andrew Novonty, ( Exhibit R1), addressed to the applicant setting out various matters in relation to the nature of the alleged termination of the employment, together with the documents which are Exhibit R4 in these proceedings.  Whilst this is a case where the Court has not had the opportunity of hearing from the applicant in relation to the content of those documents, which are relied upon as being resignations tendered by the applicant, I am satisfied on the basis of that material before me this day that the proceedings were initiated by the applicant in circumstances where there was no termination of employment at the initiative of the employer.  Consequently I am satisfied that the proceeding has been initiated without reasonable cause.
I am also satisfied, having regard to the provisions of Section 170EHA of the Act, that the respondent is entitled to an order for costs, in view of the failure of the applicant to respond to or reply or deal with any of the correspondence forwarded to him at the noted address prior to the trial, or to inform the respondent prior to these proceedings that it was not his intention to appear. Further to that aspect of this decision, I have also had regard to the fact that the applicant has failed to appear upon the proceedings and the respondent has been put to the various costs to which it refers in the document which is marked Exhibit R3. That is the letter from the Respondent's Solicitor's dated 18 April 1997.

Having regard to all of those matters including the failure of the applicant to attend and appear in these proceedings and whilst I am fully aware of the possible consequences for the Applicant where a costs order of this nature is made, I believe that it is appropriate to make an order for the full amount of the costs sought by the respondent in these proceedings.  That amount is an amount of $6201.00 and that will be the order of the Court.  The order of the Court in this proceeding is the application be dismissed and the applicant be required to pay to the respondent costs in the sum of $6201.00, such payment to be made within 28 days of today's date. 

I certify that this and the preceding one (1) page
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :          

Dated             :          7  May  1997

APPEARANCES

No appearance on behalf of the applicant.

Counsel appearing for the respondent        :          Mr. T. Ginnane

Solicitors for the respondent  :          Freehill Hollingdale & Page

Date of hearing  :          21  April  1997