Logan v Otis Elevator Company Pty Ltd

[1999] IRCA 2

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

Logan v Otis Elevator Company Pty Ltd [1999] IRCA 2

PETER LOGAN v OTIS ELEVATOR COMPANY PTY LTD

NI 1279R OF 1995

MOORE J
11 MARCH 1999
SYDNEY

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 1279R OF 1995

BETWEEN:	PETER LOGAN Applicant
AND:	OTIS ELEVATOR COMPANY PTY LTD Respondent
JUDGE:	MOORE J
DATE OF ORDER:	11 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS AND DECLARES THAT:

1.The termination of employment of the applicant was in contravention of s 170DE of the Industrial Relations Act1988 (Cth).

2.The respondent pay the applicant $20,000 within 28 days. 

3.That part of the claim of the applicant pleaded in paragraphs 10, 11 and 12 and Schedule 1 of the Further Amended Statement of Claim filed 18 October 1996 is dismissed.

4.That part of the claim of the applicant pleaded in paragraphs 21, 22, 23 and 24 of the Further Amended Statement of Claim filed on 18 October 1996 is dismissed.

5.In the period 1988 until the termination of his employment the work undertaken by the applicant was work comprehended by the classification of electrician special class within the meaning of clause 3(e) of the National Metal and Engineering On-Site Construction Industry Award 1989.

6.Costs reserved.

7.The matter be listed for directions on 25 March 1999 at 9.30 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 1279R OF 1995

BETWEEN:	PETER LOGAN Applicant
AND:	OTIS ELEVATOR COMPANY PTY LTD Respondent

JUDGE:	MOORE J
DATE:	11 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MOORE J

1. In June 1997 I published reasons for judgment effectively disposing of a number of issues in proceedings between Mr Logan and Otis Elevator Company Pty Ltd (“Otis”). In those reasons I canvassed, in detail, the relevant evidence and the legal issues raised in the proceedings. What I was required to deal with in that judgment had been determined by a consent order I had made on 8 March 1996 (prior to trial) that had been proposed by the parties. The proceedings before me were initially an application for the review of a decision of a judicial registrar. Such an application could be made, as of right, by a party aggrieved by the decision of a judicial registrar. That application was brought by Otis who had unsuccessfully defended before a judicial registrar an application by Mr Logan who established that the termination of his employment with Otis had been in contravention of Division 3 of Part VIA the Industrial Relations Act1988.  The judicial registrar had awarded compensation in the sum of $20,000.

2. It appears the initiation of the review led Mr Logan, no doubt on advice, to commence proceedings in the Court’s accrued jurisdiction alleging breach of his employment contract with Otis and invoking the Court’s statutory jurisdiction to remedy a contravention of an award.  This was done by way of statement of claim.  As to the award contravention it was contended by Mr Logan that his employment with Otis was regulated by one of two awards made under either the Industrial Relations Act1988 or legislation it had repealed and that certain entitlements he had under one or other of those awards had not been provided or provided fully by Otis. 

3. The order I earlier referred to which was made on 8 March 1996 resulted in the question of the quantum of any liability either under an award or under the contract being determined separately from and following the resolution of other issues.  While this course was later questioned by counsel for Otis during the trial I decided to adhere to the course that the parties had, by agreement, earlier chartered for themselves.  Given what has transpired since I doubt the wisdom of that course. 

4. At the conclusion of my reasons of 20 June 1997 I indicated that the applicant should bring in short minutes of orders to give effect to those reasons.  A little under a year later those representing the applicant saw fit to do so.  In the result a position was reached in February this year where orders could be made giving effect to my reasons for judgment.  Those orders are reflected in the orders I make today.  While there was not entire agreement between the parties as to what form the orders should take and what matters should be the subject of orders there was general agreement about much of what the applicant proposed.  The orders I make will reflect the following aspects of the reasons I published on 20 June 1997:

   · Mr Logan’s success in establishing that his employment was terminated in contravention of s 170DE of the Industrial Relations Act 1988.

   ·    The award of $20,000 compensation to Mr Logan arising from that contravention.

   ·    Mr Logan establishing that he was employed in a classification found in the National Metal and Engineering On Site Construction Industry Award 1989 (“the Award”) which, as has emerged subsequently having regard to findings I made in my reasons, was the classification of Electrician Special Class.

   ·    Mr Logan’s failure to establish that he was entitled to payment for standby under the Award.

   ·    Mr Logan’s failure to establish that his contract of employment was breached by a failure to pay him overtime.

   ·    Mr Logan’s failure to establish that his contract of employment was breached by giving him inadequate notice.

5. I turn now to consider the contentious question of costs.

6. Otis seeks its costs in relation to the proceedings in so far as they relate to the issues agitated by Mr Logan in his statement of claim. What are the limits of the powers of the Court in a situation such as this is a difficult question. Section 347 of what is now the Workplace Relations Act 1996 provides:

   A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under s 170CP) shall not be ordered to pay costs incurred by any other party in the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

7. In Grout v Gunnedah Shire Council (No 3) 129 ALR 372 I considered at some length the powers of the Court to award costs in relation to proceedings brought in the Court’s accrued or associated jurisdiction in conjunction with an application brought pursuant to s 170EA of the Industrial Relations Act 1988.  Otis submitted, in effect, that this was wrongly decided.  However the submission proceeded on the false premise that the Federal Court of Australia, prior to the establishment of the Industrial Relations Court of Australia, had no statutory jurisdiction to enforce awards and deal with claims of underpayment.  It did: see Part VIII of the Industrial Relations Act 1988 when first enacted and the definition of “Court” in s 4. The application by Otis for a review of the decision of the judicial registrar is itself a proceeding in respect of which a costs order can be made: see Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736. No submission has been made in these proceedings that the application for review by Otis was made vexatiously or without reasonable cause.

8. However Otis does contend that the application of Mr Logan embodied in the statement of claim filed in January 1996 as later amended was brought vexatiously or without reasonable cause and a costs order can be made in relation to it. This submission raises several difficult issues. The first is whether a claim brought by a respondent to an application for review (who was the successful applicant before the judicial registrar) can be said to have “instituted (a) proceeding” by maintaining additional causes of action in the review invoking different aspects of the Court’s jurisdiction. I use the expression “respondent to an application for review” not in any precise legal sense given that the review is a hearing de novo where, on at least one approach, the applicant before the judicial registrar remains the applicant in the review. In the present case these questions are further complicated because part of the additional claim of Mr Logan was based on an alleged breach of contract which arose in the Court’s accrued or associated jurisdiction and other parts of it involved an alleged breach of an award presumably invoking the Court’s statutory jurisdiction conferred by s 179 of what was then the Industrial Relations Act 1988. As to that latter aspect of that claim an applicant seeking the exercise of the Court’s statutory jurisdiction is plainly protected by s 347.

9. Assuming, for the moment, that the claims embodied in the statement of claim gave rise to a proceeding on which s 347 operates, the issue would then arise as to whether the proceedings were brought vexatiously or without reasonable cause. Each raised an issue of substance notwithstanding that Mr Logan was unsuccessful in relation to much of that claim. It must be said, however, that the claim of Mr Logan that he was entitled to payment for standing by constantly (other than when working) over a period of years resulting in an entitlement of many hundreds of thousands of dollars has a clear and obvious element of unreality about it. That is not to say, however, that if the Award, properly construed, created an entitlement and the facts necessary to found it were established, he would not have succeeded. He has, having regard to the reasons I gave on 20 June 1997, failed to make out the first limb to found an entitlement. However he wishes to appeal against that aspect of my reasons reflected in the orders I make today and that is plainly a matter for him and those advising him.

10. I am not satisfied Otis has, at this point, made out a case for an order for costs. However the question of whether the proceeding reflected in the statement of claim (assuming it was a proceeding for the purposes of s 347) was, in whole or in part, instituted reasonably or vexatiously can probably only properly be assessed at the end of the day. By that I mean when the proceedings have concluded in their entirety. Accordingly I propose, as Otis submitted I should do as a subsidiary submission, to reserve on the question of costs. As I indicated at the hearing on 9 February 1999 I will also not deal with the question of interest until the matter has finally concluded.

I certify that the preceding ten (10) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             11 March 1999

Counsel for the Applicant:	R Alkadamani
Solicitor for the Applicant:	Haywards
Counsel for the Respondent:	J De Meyrick
Solicitor for the Respondent:	Barker Gosling
Date of Hearing:	9 February 1999
Date of Judgment:	11 March 1999