Konrad, Karl v Victoria Police
[1998] FCA 72
•2 FEBRUARY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - costs - discretion of Court to order costs - whether s 347 of Workplace Relations Act 1996 (Cth) applies only to inter partes proceedings.
Federal Court of Australia Act 1976 (Cth) s 43
Workplace Relations Act 1996 (Cth) s 347
KARL KONRAD v VICTORIA POLICE
VI 2244 of 1996
MARSHALL J
MELBOURNE
2 FEBRUARY 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2244 of 1996
BETWEEN:
KARL KONRAD
APPLICANTAND:
VICTORIA POLICE
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
2 FEBRUARY 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2244 of 1996
BETWEEN:
KARL KONRAD
APPLICANTAND:
VICTORIA POLICE
RESPONDENT
JUDGE:
MARSHALL J
DATE:
2 FEBRUARY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application for costs made by the State of Victoria and the Chief Commissioner of Police against the applicant Mr Konrad. On 22 January 1998 the Court dismissed the substantive application in this matter for remedies arising from the alleged unlawful termination of the applicant’s employment. There were various issues raised by the State of Victoria and the Commissioner for Police. Apart from an issue of amendment, which was consequential upon one of the jurisdictional issues, the issues were jurisdictional in nature.
Three major jurisdictional issues were identified at page 8 of the judgment of 22 January 1998. They were as follows: First “Is the application a nullity because the named respondent is not a juristic person?” That was the issue that the Judicial Registrar dealt with adversely to the applicant. Second “Was there an employment relationship between Mr Konrad and the State of Victoria?” Third “If such employment relationship did exist, is Div 3 of Part IV of the [Workplace Relations] Act beyond the legislative competence of the Federal Parliament because ‘it infringes the implied limitation in relation to State powers?”. On two of those three major jurisdictional issues, the Court found adversely to the interests of the State of Victoria and the Commissioner for Police and in favour of Mr Konrad.
The Court has a very wide discretion to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth). The Court accepts that s 347 of the Workplace Relations Act 1996 (Cth) only applies to inter partes proceedings. Technically the State of Victoria was not a party to the proceeding. Ultimately, the question of whether the application should be amended did not arise, because the Court found that the applicant, being a member of the Victoria Police Force, was not an employee.
The Court has formed the view that in the special circumstances of this case, having regard to the fact that Mr Konrad succeeded on most of the jurisdictional issues and on all the other issues that the Court would have determined had it been required to do so, costs should not follow the event. The Court also takes into account, but only as a subsidiary matter and not substantially, that s 347 would have applied in any event but for a technicality, i.e. that it was not necessary in the circumstances, to amend the name of the respondent to “the State of Victoria”.
The order of the Court is that there be no order as to costs.
I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 2 February 1998
Counsel for the Applicant: Mr J N Zigouras Solicitor for the Applicant: J N Zigouras & Co Counsel for the Respondent: Mr J D Hammond appearing under protest for the Chief Commissioner of Police and/or as a friend of the Court and the State of Victoria Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 2 February 1998 Date of Judgment: 2 February 1998 (ex tempore and revised from transcript)
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