Laidlaw, Bruce Noel v Hockley, Colin t/as the Futon Bedding Shop

[1997] FCA 1151

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - COSTS - whether unreasonable act or omission - whether proceeding was lengthened as a consequence of the respondent failing to advise the applicant’s representatives that it was not intended by the calling of evidence to contest particular factual matters -

Workplace Relations Act 1996 (Cth) s170EHA

Wannberg v Alloa Holdings Pty Ltd (unreported, IRCA, Ritter JR, 6 December 1996)

LAIDLAW  -v-  HOCKLEY
VI  1243  of 1997

PARKINSON JR
MELBOURNE
30  OCTOBER  1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1243  of   1997

BETWEEN:	BRUCE NOEL LAIDLAW APPLICANT
AND:	COLIN HOCKLEY TRADING AS THE FUTON BEDDING SHOP RESPONDENT
JUDICIAL REGISTRAR:		PARKINSON
DATE OF ORDER:		30  OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to Subsection 170EHA(3) of the Workplace Relations Act 1996 the respondent pay to the applicant costs in the sum of $1499.00.

1. The time for compliance pursuant to Order 1 herein be 14 days from the date of this Order. 

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 1243 of 1997

BETWEEN:	BRUCE NOEL LAIDLAW APPLICANT
AND:	COLIN HOCKLEY TRADING AS THE FUTON BEDDING SHOP RESPONDENT

JUDICIAL REGISTRAR:	PARKINSON
DATE:	30  OCTOBER  1997
PLACE:	MELBOURNE

REASONS FOR DECISION

On 15 October, 1997 application was made by the applicant for an order for costs pursuant to Subsection 170EHA(3) of the Workplace Relations Act, 1996 (‘the Act’). There was no appearance by the respondent upon the judgment. The applicant’s counsel had, in the course of the proceedings, foreshadowed an application for costs in the event that his client was successful. Having heard briefly from the applicant’s counsel, the Court adjourned to enable the applicant’s submissions to be expanded upon, reduced to writing and forwarded to the respondent. The respondent was accorded the opportunity to make written submissions as to why the costs order sought by the applicant ought not be made. This is my decision in relation to the costs application. It was submitted that an order for costs thrown away ought be made as a consequence of the conduct of the respondent in the proceedings. In particular it was submitted that the respondent, by his former solicitors, required extensive medical evidence to be brought by the applicant as to the fact and nature of the stress ailment suffered. In the proceeding this evidence was not in substance contested by evidence called by the respondent and nor was the original contention of the applicant as to the fact of the stress ailment contested. The respondent proceeded at a late stage in the proceedings without legal representation and whilst it is apparent that some of the matters not dealt with by the respondent were as a consequence of lack of familiarity with the court process, nevertheless I am satisfied that there were aspects of the trial which could have been shortened significantly, had the respondent acted to inform the applicant’s counsel of their changed intention in so far as medical evidence was concerned. This is particularly so as it was the respondent who sought that the applicant make himself available for medical examination for the purpose of these proceedings by a medical and psychiatric practitioner retained on behalf of the respondent. In addition I accept the applicant’s submission that some aspects of the proceeding were lengthened as a consequence of the respondent failing to advise the applicant’s representatives, even at trial, that it was not intended by the calling of evidence to contest particular factual matters and which matters were not ultimately seriously contested in the proceeding. In particular I refer to the remuneration of the applicant during the course of the employment as to wages and other benefits. The operation of s170EHA was considered by Judicial Registrar Ritter in Wannberg v Alloa Holdings Pty Ltd (unreported, IRCA, Ritter JR, 6 December 1996), (in particular at pages 5 to 9). I concur with the interpretation of s170EHA adopted by the learned Judicial Registrar in that case.

I have considered the written submissions made by the solicitors now retained to act for the respondent. I do not accept that these submissions accurately reflect the course of the proceedings as they were conducted by the respondent. However I do accept that no order ought be made against the respondent as a consequence of the adjournment of the application for costs to enable the respondent an adequate opportunity to respond to any submission made and no allowance is made for such costs. For the reasons set out herein I accept the applicant’s submission as to costs made pursuant to ss170EHA(3) of the Act. The order of the Court will be that the respondent pay the applicant’s costs fixed at $1,499.00. The time for compliance is 14 days from the date of this order.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of Judicial Registrar Parkinson

Associate:

Dated:            30  October  1997

APPEARANCES

Counsel for the Applicant:	Mr. R. G. Maxted
Solicitor for the Applicant:	Baker & Armstrong
Solicitors for the Respondent	Burke & Associates
Date of Hearing:	15  October  1997
Date of Judgment:	30  October  1997