John Christopher Robinson and Australian Petroleum Agents and Distributors Association

[1994] IRCA 27

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 637 of 1994

B E T W E E N:  JOHN CHRISTOPHER ROBINSON   Applicant

AND:  AUSTRALIAN PETROLEUM AGENTS AND
  DISTRIBUTORS ASSOCIATION   Respondent

COURT:              MR J.A. RYAN, Judicial Registrar

PLACE                MELBOURNE

DATE:                   12 August 1994

JUDGMENT (EX TEMPORE)

COSTS - SECTION 347 - ORDER 22

THE J.REGISTRAR:   This is a notice of motion that the originating process be set aside pursuant to order 9 rule 7(1)(a) and that the applicant pay the respondent's costs.

The first part of the motion is of no relevance, a notice of discontinuance having been filed in this Court yesterday.

I find that the notice of discontinuance was effective when filed on 11 August without leave of the Court pursuant to order 22 rule 2(1)(b), the pleadings being not closed.

I treat the application for costs by the respondent contained in the notice of motion filed on 8 July as now constituting an application for costs pursuant to order 22 rule 3 and to section 347.

I have considered the submissions for and against the proposition that the applicant, John Christopher Robinson, until yesterday seeking remedy for termination of employment pursuant to section 170EA, be ordered to pay the costs of the respondent on the basis that the proceedings were instituted without reasonable cause. I have considered the authority cited to me. I am not prepared to find that on any settled, agreed or even apparent version of the facts that the proceedings can be stigmatised as being without reasonable cause, and I refer in particular to the comments of Wilcox J, as he then was, in Kanan v Australian Postal Telecommunications Union (1992) 43 IR 257 at 264 and 265, and I quote:

It seems to me that one way of testing whether a proceeding is instituted without reasonable cause is to ask whether upon the facts apparent to the applicant at the time of instituting the proceeding there was no substantial prospect of success.  If success depends upon the resolution in the applicant's favour of one or more arguable points of law it is inappropriate to stigmatise the proceedings as being without reasonable cause, but where on the applicant's own version of the facts it is clear that the proceeding must fail it may properly be said that the proceeding lacks a reasonable cause.

Even if one accepts the facts as outlined in the applicant's affidavit of 2 June, even on those facts, I do not accept that the proceedings could be categorised as without reasonable cause or without any arguable basis at all in law or fact. 

I also note that the whole construction of section 347 is that a party to a proceeding shall not be ordered to pay costs unless the proceeding was instituted vexatiously or without reasonable cause.  I find neither, and the application for costs is dismissed.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :
Date  :              24 August, 1994. April 26, 2014
Appearances:
Counsel for the Applicant                 :              Mr. Mc Donald
Solicitor for the Applicant                 :              Michael Brereton and Company
Counsel for the Respondent             :              Mr. B.D. Lawrence
Solicitor for the Respondent             :              Phillips Fox
Date of Hearing  :              12 August 1994
Judgment  :              12 August 1994