Giles v Australian Personnel Solutions Pty Lt

[1996] IRCA 455

DECISION NO: 455/96

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - costs

Industrial Relations Act 1988 S347

CASES:

Strachan v Liquorland (Australia) Pty Ltd, IRCA (unreported) 6 February 1996, Matter Number NI-1266R of 95, Decision No 48/96

Brackenridge v Toyota Motor Corporation, Beasley J, (unreported) No NI-1218 of 1995, 19 April 1996, Decision No 162/96.

STELLA GILES -v- AUSTRALIAN PERSONNEL SOLUTIONS PTY LTD

No. VI-1686 of 1996

Before:  Ryan JR
Place:  Melbourne
Date:  23 September 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1686 of 1996

B E T W E E N :

STELLA GILES
Applicant

AND

AUSTRALIAN PERSONNEL SOLUTIONS PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan       23 September 1996

THE COURT ORDERS:

1. I order costs in the sum of $1600 to be paid by the Applicant to the Respondent pursuant to S347.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1686 of 1995

B E T W E E N :

STELLA GILES
Applicant

AND

AUSTRALIAN PERSONNEL SOLUTIONS PTY LTD
Respondent

Before:      Judicial Registrar Ryan
Place:       Melbourne
Date:         23 September 1996

REASONS FOR JUDGMENT
Delivered Ex Tempore
(settled from the transcript)

On 16 August, the Court dismissed an application for a reinstatement made by way of a claim of unlawful termination of employment.  Written reasons were provided on that day.  Counsel for both parties had agreed to resolve a preliminary issue of jurisdiction.  No oral evidence was called, with counsel for the Respondent accepting and agreeing with the summary or statement of facts delivered orally by counsel for the Applicant.  I draw that to attention, because that was by consent and agreement, and in those circumstances, there was not going to be a likelihood of the Respondent's personnel being called at that stage.

In the event that the Court had ruled in favour of the Applicant and found jurisdiction, then it is true that the Court would have proceeded on that day, and the Respondent's witnesses would have been required. It is understandable that they were here during the hearing, but presumably, they returned to their offices after the actual hearing on the 14th.  I just note that in passing.

At the conclusion of the hearing on 16 August, and with written reasons given on that day, the court dismissed the application for lack of jurisdiction, and I relied primarily on the decision of Moore J in Strachan v Liquorland (Australia) Pty Ltd, Industrial Relations Court of Australia (unreported) 6 February 1996, Matter No NI-1266R of 95, Decision No 48/96. I noted that that decision had been followed in Brackenridge v Toyota Motor Corporation, a decision of Beasley J, (unreported) and as far as I am aware, the main Brackenridge decision still unreported, being Matter No NI-1218 of 1995, 19 April 1996, Decision No 162/96.

At the conclusion of the hearing, and after I had ordered that the application be dismissed for lack of jurisdiction, I heard both counsel on an application by the Respondent for costs pursuant to S347. I indicated that I would reserve on costs, but having heard both counsel on costs, and an application by counsel for the Applicant, to be heard further if I decided to order costs. I left open the possibility that the parties might be given a further opportunity to address on costs if the court decided to order costs. What I intended, and what I meant, “by leaving it open”, was that the parties would have an opportunity to address on the quantum of costs in the event that I determined that this was a case in which costs should be ordered, pursuant to S347 of the Act. This is what Counsel for the Applicant sought - an opportunity to further address on quantum if the Court decided to order costs.

I turn now to S347. Subsection (1) provides:

A party to a proceeding, in a matter arising under this Act, shall not be ordered to pay costs incurred by any other party to the proceeding, unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause.

And section 347 subsection (2) states:

Costs in subsection (1) includes all legal and professional costs, and disbursements and expenses of witnesses.

On 12 September, I determined that this was a case in which I ought to exercise the discretion vested in S347 to award costs. My associate, I believe, advised the solicitors for the Applicant, and possibly, the solicitors for the Respondent on that day of that decision. I have now heard Mr Katz and Mr Catanzariti on costs - on quantum of costs. I have not heard a great deal from either of them I must confess, but I have already indicated that I propose to follow my common, if not invariable practice, in those relatively rare cases in which costs are awarded under S347.

Order 62 provides three possible ways in which an order for costs may be made by the Court.  The Court could, pursuant to Order 62 Rule 1(a) order or give directions that a scale of costs that is used to calculate costs in a court constituted under Commonwealth Law, be used to calculate the costs.  The Court could, under Order 62 Rule 1(c), direct the Registrar to determine the amount of costs in accordance with the procedures set out in Rule 42 of Order 62 of the Federal Court Rules, or the Court could do what I favour in these cases, and that is to specify the amount of costs to be allowed. That is what I propose to do.

Before doing so, I wish to give my reasons for concluding that this is a case in which the discretion should be ordered to order costs against the Applicant. My reasoning is, I believe and hope, relatively straightforward and simple.

The application - the claim of unlawful termination of employment was lodged in the Industrial Relations Commission on 13 May 1966.  The decision of Moore J, to which I have referred in some little detail in my decision of 16 August 1996, was made on 6 February 1996, and was followed by Beasley J in Brackenridge v Toyota Motor Corporation on 19 April 1996. I have concluded that the Applicant here professionally represented should have been aware of the fact that at the time of lodging the application on 13 May 1996, the application as made, and on the basis in which it was stated as being made, was a matter which, within the terms of S347, was a matter instituted without reasonable cause.

I order that the Applicant pay the Respondent costs for the day - that is 14 August 1996, and the costs that I allow for that day, having taken into account the little that was put to me in relation to solicitors costs, counsel's costs and the costs of possible witnesses for the Respondent, is the sum of $1600. I order costs in the sum of $1600 to be paid by the Applicant to the Respondent pursuant to S347.

MINUTES OF ORDERS

THE COURT ORDERS:

1. I order costs in the sum of $1600 to be paid by the Applicant to the Respondent pursuant to S347.

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

I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  1 October 1996

Solicitors for the Applicant:           Gary Katz & Associates
Counsel for the Applicant:            Mr G Katz

Solicitors for the Respondent:      Wisewoulds
Counsel for the Respondent:                 Mr R Catanzariti

Date of hearing:  23 September 1996
Date of judgment:  23 September 1996