Leung v Bentley Health Service

[1997] IRCA 4

DECISION NO:4/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application for COSTS thrown away by reason of adjournment.

Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170EHA

KAREN LEUNG v BENTLEY HEALTH SERVICE

WI 1214 of 1996

Before  :          BOON JR

Place  :          PERTH

Date of Judgment              :          17 JANUARY 1997

IN THE INDUSTRIAL RELATIONS COURT            )
OF AUSTRALIA  )
WESTERN AUSTRALIA DISTRICT REGISTRY     )

WI 1214 of 1996

B E T W E E N:  

KAREN LEUNG

Applicant

A N D:  

BENTLEY HEALTH SERVICE

Respondent

MINUTE OF ORDERS

17 JANUARY 1997  PERTH  BOON JR

THE COURT ORDERS THAT:

1. The applicant pay to the respondent the sum of $1,500 by way of costs thrown away by reason of the adjournment of the hearing on 1 October 1996 and the costs of this Notice of Motion within 14 days of the date of this Order.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations   Court Rules.

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY     )

WI 1214 of 1996

B E T W E E N:

KAREN LEUNG

Applicant

A N D:  

BENTLEY HEALTH SERVICE

Respondent

REASONS FOR DECISION

17 JANUARY 1997  BOON JR

This is an application by the respondent, Bentley Health Service, for orders that the applicant pay the respondent's costs thrown away by reason of the adjournment of the hearing on 1 October 1996 and that the applicant pay the respondent's costs of this Notice of Motion. 

By application dated 28 May 1996 Mrs Leung applied for relief in respect of the termination of her employment by the respondent. On 14 June 1996 the Australian Industrial Relations Commission provided a Certificate under section 170ED(1) of the Industrial Relations Act 1988 (as it then was) certifying that it had not been able to settle the matter by conciliation and that the parties did not elect to have the matter dealt with by consent arbitration.  The matter came before District Registrar Richardson on 16 July 1996 for directions.  District Registrar Richardson made orders for the filing and serving of Summaries of Facts by each party, mutual Discovery and Inspection and that the matter be listed for hearing for three days commencing at 10:00 am on Tuesday, 1 October 1996. 

The applicant, Mrs Leung, filed a 15 page Summary of Facts on 7 August 1996.  The issues raised by her in her Summary of Facts are complex and amongst other things accuse various public servants of improper behaviour. 

A further directions hearing took place on 23 September 1996.  At that directions hearing Mrs Leung was refused an application for an adjournment of the hearing. 

The matter became before me for hearing on 1 October 1996.  At that time Mrs Leung appeared in person and made a further application for an adjournment of the hearing of this matter.  At that time Mrs Leung advised the Court that she was not in a position to proceed with the matter.  She had been having problems contacting witnesses, one of whom she had believed to be overseas but who was in fact resident in Perth at the date of the hearing.  Mrs Leung stated that she needed further time to prepare the matter and wished to instruct a solicitor to act on her behalf.  At the hearing of the application for an adjournment Mrs Leung raised further issues upon which she wished to rely in the hearing of the application.  Mr Lundberg, the solicitor appearing for the State Crown Solicitor acting on behalf of the respondent, stated that if Mrs Leung wished to raise fresh allegations he would seek an adjournment plus his costs thrown away as a result.  In the circumstances I granted the request for an adjournment and reserved the question of costs. 

On 13 November 1996 Mrs Leung filed a Notice of Discontinuance of the proceedings.

By Notice of Motion filed 2 December 1996 the respondent made an application for costs thrown away by reason of the adjournment of the hearing on 1 October 1996.  The Notice of Motion was returnable on 14 January 1997.  On 13 January 1997 Mrs Leung filed a document in this Court headed:

"1.Applicant's statement objecting to the respondent's Motion seeking orders as to costs;

2.Further moves the cancellation of the Notice of Discontinuance filed on 13 November 1996 (letter submitted to the Registry on 15 November 1996); and

3.The claims for negligence in the applicant's case falls within the jurisdiction of this Court".

The document is unsworn and is not in the proper form for a Notice of Motion.  I explained this to Mrs Leung and stated that in any event there was in my view no provision which would enable me to make an order cancelling the Notice of Discontinuance which she signed on 13 November 1996.  Mrs Leung still wishes to pursue a claim against her former employer.  The basis of that claim appears to be that she was subjected to threats, harassment, intimidation and victimisation by her employer and fellow employees.  Mrs Leung advised me that she had sought advice from four different solicitors but she did not find that they acted in a manner which was satisfactory to her.  Mrs Leung has filed many documents in this Court and has engaged in lengthy correspondence with Mr Lundberg and this Court.  I have no doubt that Mrs Leung genuinely feels that she has been the subject of a conspiracy between a large number of people with whom she has had contact.  I have not been in a position to hear evidence in relation to her allegations because the matter has been discontinued.  However, Mrs Leung has also unfortunately made some serious allegations against Mr Lundberg (amongst many other people) in relation to the conduct of this matter.  I wish to make it clear that on the material made available to me it appears that Mr Lundberg has consistently behaved in a proper and professional manner and it appears to me that he has exercised considerable forbearance in his dealings with Mrs Leung.

My impression of Mrs Leung is that she has some serious emotional problems. This if of course a lay person's view only and there is no medical evidence before me to support this. The reason I have arrived at this view is that Mrs Leung herself has advised me that she has suffered from depression and was suicidal at one stage as a result of the stress this litigation caused her. Further, her demeanour in Court on both occasions was such as to support that view. On both occasions on which she appeared before me she became tearful. The documentation filed by Mrs Leung also tends to support this view. I rais the question of Mrs Leung's emotional state only in that it concerns me that it is a relevant factor in deciding whether or not to exercise my discretion in deciding whether or not to make an order for costs pursuant to section 170EHA of the Workplace Relations Act 1996.  That section states as follows:

"If, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceeding has caused any other party to the proceeding to incur costs because of an unreasonable act or omission of the first mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first mentioned party to pay all or part of the costs incurred by that other party".

It is my view that Mrs Leung was guilty of an unreasonable act or omission in connection with the conduct of the proceeding in this matter when she did not have the matter ready for hearing in circumstances in which she had already been advised that the matter would not be adjourned.  If Mrs Leung was unable to prepare properly for the proceedings herself she should have followed the advice of her solicitors.  I note that she has dismissed four solicitors in relation to this matter, because she was not happy with the advice they gave her.  Because of the nature of the allegations raised by Mrs Leung the solicitors for the respondent have incurred considerable costs in preparing for the hearing of this matter.  Any concern I have about Mrs Leung's health should be seen in light of the fact that she has considered herself fit enough to work in her usual occupation since 1 July 1996.

In these circumstances, I do consider it appropriate to exercise my discretion to make an order for the payment by Mrs Leung of at least part of the costs thrown away as a result of the adjournment of the matter.  The Crown Solicitor's Office has estimated the costs thrown away as a result of the adjournment at $2,158.  It further seeks an order for payment of the costs of the hearing of the Notice of Motion fixed at $320.  In my view, the costs sought by the solicitors for the respondent are extremely reasonable given the nature and complexity of the allegations made by Mrs Leung.  However, taking into account the fact that Mrs Leung was unrepresented and because she appears to be suffering from some health problems, I consider it appropriate to discount the costs sought and make an order for the payment of $1,500.

The Court orders that:

1. The applicant pay to the respondent the sum of $1,500 by way of costs thrown away by reason of the adjournment of the hearing on 1 October 1996 and the costs of this Notice of Motion, within 14 days of the date of this Order.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision of

Judicial Registrar Boon.

Associate:

Date:

APPEARANCES

Applicant (in person):  Mrs Karen Leung

Counsel for the Respondent:         Mr P.D Quinlan

Solicitor for the Respondent:        Mr P.A Panegyres
  Crown Solicitor for the State of Western
  Australia

Date of hearing:  14 January 1997

Date of judgment:   17 January 1997