Innes v University of Adelaide
[2008] FMCA 54
•23 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| INNES v UNIVERSITY OF ADELAIDE | [2008] FMCA 54 |
| COSTS – INDUSTRIAL LAW – Assessment. |
| Workplace Relations Act 1996, s.824 |
| Re W (An Infant) [1971] 2 All ER 49 |
| Applicant: | JOHN MICHAEL INNES |
| Respondent: | UNIVERSITY OF ADELAIDE |
| File number: | ADG 127 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 October 2007 |
| Date of last submission: | 19 December 2007 |
| Delivered at: | Sydney by telephone to Adelaide |
| Delivered on: | 23 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Manuel |
| Solicitors for the Applicant: | Gun & Davey |
| Counsel for the Respondent: | Mr T L Stanley QC |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The Court declares that Professor Innes remains employed by the University of Adelaide as a full-time employee.
The Court declares that Professor Innes has not been employed as Dean and has not been entitled to a Dean’s allowance from on and after 29 July 2007.
Consideration of alleged breaches of the Workplace Relations Act and declarations relating thereto be set down for directions upon a date to be notified to the parties by my associate, no earlier than 1 February 2008.
The applicant to pay the respondent’s costs of and incidental to the reserved costs of the adjournment and amendment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 127 of 2007
| JOHN MICHAEL INNES |
Applicant
And
| UNIVERSITY OF ADELAIDE |
Respondent
REASONS FOR JUDGMENT
In this matter I gave judgment on 4 December 2007. I ordered that the parties bring in Short Minutes to give effect to that judgment. Unfortunately the parties did not appear to be able to agree as to the form of the Short Minutes. I have two versions of the Short Minutes before me. The essential difference between the two documents seems to me to be that the orders proposed by the successful applicant deal with each individual alleged breach, whereas the orders proposed by the respondent deal with this matter in a shorter form which, to my mind, does not in any way affect the possible future hearing of the outstanding matters. I also have concern that the inclusion of paragraph 4 of the applicant’s proposed orders:
“The purported imposition by the Respondent of a fixed term within either of the employment contracts with the Applicant was invalid and unenforceable”
which might be used to the prejudice of the respondent in relation to any proceedings under the Workplace Relations Act 1996.
The respondent suggests that in regard to the outstanding proceedings under the Workplace Relations Act, they should be reserved with liberty to apply. The applicant seeks that they be adjourned to a date to be fixed by the court. I expressed the view at the handing down of the judgment that having given a decision on the substantive issue, the parties might be able to resolve any outstanding ones between them. The existence of these documents would seem to indicate that that has not occurred to date.
There was also reserved a question of the costs of an adjournment of the proceedings, which was brought about at the request of the applicant whose counsel wished to be excused from the proceedings for reasons which have not been revealed. Costs in proceedings under the Workplace Relations Act are governed by s.824 of the Act, which is in the following form:
“(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must 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.
(2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.
(3) In subsections (1) and (2):
"costs" includes all legal and professional costs and disbursements and expenses of witnesses.”
It will be seen that s.824 does give the court power to award costs in certain circumstances. In proceedings which are not under the Act there would be no question that the costs thrown away by the adjournment would be paid by the applicant to the respondent. The fact that the respondent agreed to the adjournment would not affect the order. The agreement merely saved an argument. The question that I have to consider is whether or not requesting the court for an adjournment to obtain fresh counsel and to amend the claim as foreshadowed at the time the adjournment was granted (although not carried out) constitutes an unreasonable act.
The authorities would appear to indicate that unreasonableness must be considered in the context of the legislation in which the word is used, so that unreasonableness for the purposes of deciding whether or not a solicitor may have to pay costs under rules of court may require a greater degree of culpability than a party who might be asked to pay costs thrown away:
“In my opinion, besides culpability, unreasonableness can include anything which can objectively be adjudged to be unreasonable. It is not confined to culpability or callous indifference. It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness, or excessive lack of common sense”: Re W (An Infant) [1971] 2 All ER 49 at 56 per Lord Hailsham LC.
I take the view that requesting an adjournment very late in the day, as was done here, for the purposes of changing counsel or of amending a claim, is unreasonable. It undoubtedly puts a respondent in difficulties. This is a case fought between two sophisticated parties. They have both had the benefit of legal advice of the highest order. The applicant should have been aware that if events had turned out as they did do, and a request for an adjournment was made, the likelihood would be that costs would be thrown away by the respondent.
I propose to make orders in the form of the Short Minutes provided to me by the respondent, save that in paragraph 3 of those Minutes I would delete the words “reserved with liberty to apply” and replace them with the words “be set down for directions upon a date to be notified to the parties by my associate, no earlier than 1 February 2008.”
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 January 2008
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