MacDonald, Peter Harper v The Queensland Justices & Community Legal Officers Association (Inc)

[1997] FCA 1025

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION  -  COSTS

WORKPLACE RELATIONS ACT  1996, s170EA, ss170EHA(1), ss347(1)

PETER HARPER MACDONALD v THE QUEENSLAND JUSTICES and COMMUNITY LEGAL OFFICERS ASSOCIATION (INC)

QI 96/1134

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       18 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA                 )
QUEENSLAND DISTRICT REGISTRY  )                 QI96/1134                     

BETWEEN:  PETER HARPER MACDONALD  

Applicant

AND:  THE QUEENSLAND JUSTICES and COMMUNITY   LEGAL OFFICERS ASSOCIATION (INC)  

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                18 SEPTEMBER 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The respondent's claim for costs in respect of the applicant's failed claim in the associated jurisdiction be allowed.

1. The applicant pay those costs, fixed in the sum of Two Thousand Dollars ($2000), within Twenty-one (21) days of this order.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 )
QUEENSLAND DISTRICT REGISTRY  )                 QI96/1134

BETWEEN:  PETER HARPER MACDONALD  

Applicant

AND:  THE QUEENSLAND JUSTICES and COMMUNITY   LEGAL OFFICERS ASSOCIATION (INC)  

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                18 SEPTEMBER 1997

REASONS FOR JUDGMENT

Background

On 30 June 1997, I dismissed an application brought by the applicant alleging that termination of his employment by the respondent was in breach of the Workplace Relations Act 1996.

On 4 July 1996, the respondent filed material in support of an application for costs.   Regrettably, this material was not brought to my attention until 12 August 1997.   I heard the application for costs on 28 August 1997.

Costs Application

The respondent relied on both subsections 347(1) and 170EHA(1) of the Act.

On the question of whether or not the applicant instituted his proceedings vexatiously, I am assisted in my evaluation of this by the remarks of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 487.   On balance, I am not satisfied that the applicant instituted his proceedings for a collateral purpose in the sense of their not being for the purpose of having the court adjudicate on the issues to which they gave rise.   I am satisfied that he instituted them in an attempt (genuine in his own mind at least) to obtain redress for the termination of his employment.  

As to whether the proceedings were instituted without reasonable cause, it is important to note, I think, that four former councillors of the respondent gave evidence generally supportive of the applicant's version concerning the principal matters relied on by Mr Rees in terminating the applicant's employment.   While I have rejected their supporting evidence, it is not clear that the applicant's case was doomed to fail, had their evidence been accepted.   In other words, had I accepted the various explanations for the applicant's conduct, which conduct was the subject of the decision to terminate his employment, I am unable to conclude that his application must of necessity have failed.   In that regard, I refer to the remarks of Wilcox J (as he then was) in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 where he said:

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 reasonable cause.

I have also had regard to the remarks of Northrop J in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 274  where he said in respect of section 197A, the predecessor to section 347,

The test is a substantial one.....It may be difficult to satisfy the test where disputed questions of fact arise and the proceedings eventually are dismissed because the Court finds facts adverse to the party instituting the proceedings.

In respect of subsection 170EHA(1), the respondent submitted that the applicant was primarily responsible for the trial running longer than the estimate of both parties, and that the extra costs which resulted to the respondent were caused by unreasonableness in the way the applicant conducted the litigation.

The applicant was unrepresented at trial.   He clearly had no legal expertise.   He at times strayed beyond the proper bounds in evidence-in-chief and cross-examination.   At times, he adopted a method of questioning which did not seem designed to properly advance the issues.   Despite this, I was not, however, left with the

impression that his lapses in this regard met the description of unreasonable acts or omissions within the terms of the subsection.

It is to be remembered that both parties underestimated the likely duration of the trial.   I also contributed to its duration by requiring that substantial affidavit material filed in the Supreme Court proceedings be filed in the proceedings before me.  This had the inevitable consequence of ventilating some issues which might not otherwise have emerged, at least to the degree they did.  

The application founded on subsections 347(1) and 170EHA(1) of the Act fails.

Associated Jurisdiction Claim

The applicant failed in a claim for holiday pay allegedly due to him and unpaid by the respondent.   I can see no reason why costs should not follow the event in respect of this claim.   I fix the respondent's costs, including its application for costs in this regard, in the sum of Two Thousand Dollars ($2000).

ORDER:

1. I allow the respondent's claim for costs in respect of the applicant's failed claim in the associated jurisdiction.

1. I order the applicant to pay those costs, fixed in the sum of Two Thousand Dollars ($2000), within Twenty-one (21) days of this order.

I certify that this and the preceding TWO (2) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  18 September 1997

Appearing for the Applicant:  In person

Counsel for the Respondent:  Mr Murdoch

Solicitors for the Respondent:                   Lippiatt & Co

Date of hearing:  28 August 1997

Date of judgment:  18 September 1997