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".

1. 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 Mr. Howie on behalf of the defendants in V 12 and V 13 of 1987, was based upon a number of cases. They included Viner v The Australian Building Construction Employees and Builders Labourers Federation (1981) 38 ALR 550 - a decision of Northrop J., and Gregory's case, (1987) 74 ALR 300 - a decision of Gray J.

2. I do not accept Mr. Hartley's argument based upon those cases; they each dealt with a proceeding in respect of alleged contempt of court, which was held by their Honours to be a proceeding not brought under the Act - an opinion from which I do not dissent. However, those two cases are distinguishable from the present ones which quite expressly allege offences against s. 182 of the Act. That being so, in my opinion neither of those two cases assists the defendants on this question.

3. I should perhaps refer to a case mentioned during the argument this morning - that is a decision of the Full Court in Brophy and Others v Mapstone and Others (1984) 56 ALR 135 at pages 146-148. In that case the Full Court had to consider an earlier statement of Northrop J., made obiter, in Viner's case (supra) on the one hand, and a decision of Ellicott J., in the case of Stapleton v The African Lion Safari Pty. Ltd. (1982) 43 ALR 385, on the other hand. To put the matter shortly, the Full Court preferred the view taken by Ellicott J. to the view expressed earlier by Northrop J.; it decided that the court had no power to order costs other than the power conferred by s. 197A.

4. Another case to which Mr. Hartley referred was that of Doyle v Australian Workers Union (1986) 68 ALR 591, at 602. In that case it was accepted by the appellant that s. 197A applied, because of the decision in Brophy v Mapstone. The appellant argued that the appeal had been "instituted vexatiously or without reasonable cause" within the meaning of s. 197A of the Act. That argument failed. The Full Court, constituted by Evatt, Sheppard and Gray JJ., cited the decision in Brophy v Mapstone, to which I have just referred. I am not prepared to accept the submissions, put on behalf of the defendants that the court has power under s. 43 of the Federal Court Act to order costs.

5. The alternative argument put by the defendants was based upon s. 197A of the Act. That section provides in substance that:
   

"A party to -

....

(b) a proceeding ... before the Court ... in a matter arising under this Act ... shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

1. I put to one side the argument based upon the word "vexatiously". The defendants, in applying for costs, are in a better position to argue that the proceedings were instituted "without reasonable cause" than to argue that the proceedings were commenced "vexatiously". On the material before the court I would not be prepared to infer that the proceedings were instituted "vexatiously".

2. The question then is narrowed down to whether the proceedings were instituted "without reasonable cause". On that question I accept a number of the submissions that Mr. Lindeman has put. I accept that the relevant time, in determining this question, is the time when the proceedings were instituted, not the time when it was decided to call no evidence. I also accept Mr. Lindeman's submission that the passage of time, occurring since the laying of the informations in June 1987, is not a matter to be taken into account in any way adverse to the prosecutor. I do that both as a matter of principle and on the information before the court, including the reference by Mr. Lindeman to the fact that the need for a hearing date to be fixed was not pressed at an earlier stage, because decisions were then pending in respect of other proceedings under s. 182 of the Act (Howard v Gallagher).

3. It may be added that the prosecutor was not represented at a directions hearing on 4 March, 1988 and Northrop J. ordered that the prosecutor pay the costs of the defendants in matters V 12 and V 13 of 1987; Mr. Howie informed the court in the present hearing that the parties had reached agreement as to the amount of those costs.

4. The prosecutor has contended that, in considering whether the informant acted without reasonable cause in instituting these proceedings in June 1987, the onus is on the defendants to show that the proceedings were instituted without reasonable cause, but has accepted that such onus is a civil onus of proof only. He also pointed out that in s. 197A the words "except where the party ... instituted the proceeding ... without reasonable cause" constitute an exception.

5. The matter was stood down earlier today for approximately three quarters of an hour, at the request of the prosecutor's solicitor, to enable him to examine the authorities which had been cited by Mr. Hartley; doubtless he was able to consider his position generally during that time. Since then he has stated that he does not propose to put any evidence before the court as to the reasons for the prosecutor's decision that no evidence would be called in support of the prosecutions. However he reserved the right to call evidence in rebuttal if the defendants called evidence. When asked if he sought an adjournment to enable him to call evidence as to the reason for that decision by the prosecutor, he answered that he did not seek any such adjournment.

6. Now, of course, it is open to the prosecutor, to decide (a) to call no evidence at the hearing and (b) what course to follow in relation to an application for costs. But it is for the court to decide what is the appropriate order. If there had been evidence called by the prosecutor that at some time after the proceedings were instituted a crucial witness had died or for some other reason had become unavailable, or if there was evidence of some other significant change in relevant circumstances since the institution of the proceedings, the court would have considered such evidence and may well have come to a different conclusion; however, that question does not have to be decided as there is no evidence to that effect; nor has any reason been advanced by the prosecutor's solicitor for the decision that no evidence will be called.

7. The court is faced with simply these facts: charges were laid in June last year; the prosecutor has decided that no evidence is to be called in support of any of those charges; no reason has been put forward for that decision and no evidence has been called before the court as to why the prosecutor has so decided; no adjournment has been sought to enable any such evidence to be called.

8. Now, in those circumstances I infer, applying the civil onus of proof, that the proceedings were instituted without reasonable cause within the meaning of s. 197A of the Act. In each of the three matters the prosecutor will be ordered to pay the costs of the defendants.
   ADDENDUM - 29 November 1988

9. In addition to the above reasons for judgment, delivered at the conclusion of the hearing yesterday, it may be added that, in reaching that decision I had in mind the decision in Tozer Kemsley & Millbourn (A'asia) Pty. Ltd. v Collier's Interstate Transport Service Ltd. (1956) 94 CLR 384 at 403, where Fullagar J. said:
   

"... the election of the defendant to call no evidence has, to my mind, more than ordinary significance in this case. That it may have significance is well established: see, e.g. May v O'Sullivan

(1955) 92 CLR 654. The silence of one party cannot, of course, fill the place of actual evidence on an issue, but it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party."

1. The same principle was referred to in Trade Practices Commission v Allied Mills Industries Pty. Ltd. and Others (No. 3) (1981) 37 ALR 225 at 240-1 where Sheppard J. said:-
   

"Finally I should refer to another principle which is where facts or evidence are peculiarly within the knowledge of a party, the court will be prepared to act on slight evidence of their existence. There are a number of cases in which this principle is stated. It is sufficient if I refer to De Gioia v Darling Island Stevedoring & Lighterage Co. Ltd. (1942) 42 SR(NSW) 1. In the course of his judgment Jordan CJ. said (at 4): "The case may, however, be one in which although the principle of res ipsa liquitur is not available to the plaintiff, some of the facts essential to the plaintiff's case are peculiarly within the knowledge of the defendant, and it is, in the nature of things, difficult for the plaintiff to produce evidence of them. Such a state of things does not absolve the plaintiff from adducing some evidence of those facts; but where it exists it is legitimate for the trial judge to hold that very slight evidence pointing to their existence may be treated as sufficient to justify a jury in holding that they do exist,if, but only if, there is no explanation of that evidence by the defendant: Parker v Paton (41 SR(NSW) 237 at 243)."

1. In the present cases, in my opinion the relevant "facts are peculiarly within the knowledge of the silent party".

2. Under s. 197A a party who has instituted proceedings without reasonable cause may be ordered to pay costs; in my opinion the section shows that the intention of the legislature - notwithstanding the limitation it placed upon the court's power to make an order for costs - was that such a party may be - and, subject to the court's discretion, normally shall be - ordered to pay costs if he has instituted "the proceeding, vexatiously or without reasonable cause". If Parliament so intended it is unlikely that it intended that a prosecutor who called no evidence in support of his charges in a criminal case might avoid that result by refraining from giving any explanation to the court as to why he had decided not to call any evidence in support of the allegations.