Howard v Cummins - [1988] FCA 806

Re: ROBERT CHARLES HOWARD
And: JOHN CUMMINS; WILLIAM HARTLEY; COMMUNITY RADIO MELBOURNE PTY. LTD. and
GEOFFREY PETER SWANTON
Nos. V 10-13 of 1987
Industrial Law
27 IR 109

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - application for award of costs - proceedings instituted under s. 182 of Conciliation and Arbitration Act - failure by prosecutor to call evidence explaining why informations against defendants not proceeding - whether power to award costs under s. 43 of the Federal Court Act - whether proceeding instituted without reasonable cause

Conciliation and Arbitration Act 1904 s. 197A

Federal Court of Australia Act 1976 s. 43

Brophy & Ors. v Mapstone & Ors. (1984) 56 ALR 135

Tozer Kemsley & Millbourne (A'asia) Pty. Ltd. v Collier's Interstate Transport Service Ltd. (1956) 94 CLR 384

HEARING

MELBOURNE #DATE 28:11:1988

Solicitor for Prosecutor: Mr A. Lindeman

First Respondent: Mr John Cummins appeared for himself

Second Respondent: Mr William Hartley appeared for himself

Solicitor for Third Respondents: Howie & Maher

Solicitor for the third Respondents: Mr Howie

ORDER

No. V 10 of 1987

The information against the defendant John Cummins be dismissed.
No. V 11 of 1987

The information as against the defendant William Hartley be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.
No. V 12 of 1987

The informations as against the defendants Community Radio Melbourne Pty. Ltd. and Geoffrey Peter Swanton be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.
No. V 13 of 1987

The informations as against the defendants Community Radio Melbourne Pty. Ltd. and Geoffrey Peter Swanton be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The defendants in these matters have sought an order for costs under s. 197A of the Conciliation and Arbitration Act 1904 ("the Act"), alternatively under s. 43 of the Federal Court of Australia Act 1976. Mr. A. F. A. Lindeman, the solicitor to the Victorian Department of Labour and Ministry of Consumer Affairs is the solicitor on the record for the prosecutor, who, at the time when the informations were laid, was an officer of that Department. Mr. Lindeman has formally informed the court today that he will not call any evidence in support of the allegations against any of the defendants; a letter from him was received by the Registrar last Thursday afternoon giving notice that the "matter will not be proceeding".

After the dismissal of the informations, it was argued for the defendants that, notwithstanding the terms of s. 197A of the Act, the court has power, under s. 43 of the Federal Court Act, to order the informant to pay costs. Mr. Hartley's argument, which was adopted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howard v Cummins

Details

AGLC: Howard, R.C. v. Cummins, J. [1988] FCA 806 (27 IR 109)
Case: [1988] FCA 806
Decision Date: 28 NOVEMBER 1988

CaseChat Overview and Summary

In the Federal Court of Australia, Howard v Cummins involved proceedings initiated under section 182 of the Conciliation and Arbitration Act. The plaintiff, Robert Charles Howard, brought charges against multiple defendants including John Cummins, William Hartley, Community Radio Melbourne Pty. Ltd., and Geoffrey Peter Swanton. The dispute centred around whether the prosecutor had grounds to institute the proceedings and whether the defendants were entitled to costs due to the prosecutor's failure to present evidence.

The court was required to decide two primary issues: whether the power to award costs existed under section 43 of the Federal Court Act and whether the proceedings were instituted without reasonable cause. The central question was whether the prosecutor's failure to call evidence explaining the cessation of charges against the defendants warranted an award of costs to the defendants.

The court found that the prosecutor did not call evidence explaining why the charges against certain defendants were not proceeding, and as a result, the informations against these defendants were dismissed. The court held that the proceedings against these defendants were instituted without reasonable cause, thereby justifying the award of costs to them. The court emphasised the importance of providing a sound basis for instituting proceedings, particularly in cases involving multiple defendants and charges. Consequently, the prosecutor was ordered to pay the defendants' costs, with the order to be stayed for twenty-one days to allow for any potential appeal or further consideration.

Orders

Orders of the court

No. V 10 of 1987

The information against the defendant John Cummins be dismissed.

No. V 11 of 1987

The information as against the defendant William Hartley be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.

No. V 12 of 1987

The informations as against the defendants Community Radio Melbourne Pty. Ltd. and Geoffrey Peter Swanton be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.

No. V 13 of 1987

The informations as against the defendants Community Radio Melbourne Pty. Ltd. and Geoffrey Peter Swanton be dismissed.

The prosecutor Robert Charles Howard pay the defendant's costs.

The order as to costs be stayed for twenty-one days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.