Matthews v Cool or Cosy Pty Ltd
[2003] WASCA 136
•23 JUNE 2003
MATTHEWS -v- COOL OR COSY PTY LTD & ORS [2003] WASCA 136
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2003] WASCA 136 | |
| Case No: | IAC:5/2003 | 3 JUNE 2003 | |
| Coram: | SCOTT J PARKER J PULLIN J | 23/06/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANTHONY GEOFFREY MATTHEWS COOL OR COSY PTY LTD CEIL COMFORT HOME INSULATION PTY LTD CITIGROUP PTY LTD (IN LIQ) |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Industrial Relations Act 1979, s 86(2) |
Case References: | Matthews v Citigroup Pty Ltd (in liq) [2003] WASC 87 Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22 Builders Labourers, Painters and Plasterers Union of Workers (Western Australia) v Clark (1995) 62 IR 334 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : MATTHEWS -v- COOL OR COSY PTY LTD & ORS [2003] WASCA 136 CORAM : SCOTT J
- PARKER J
PULLIN J
- Appellant
AND
COOL OR COSY PTY LTD
CEIL COMFORT HOME INSULATION PTY LTD
CITIGROUP PTY LTD (IN LIQ)
Respondents
Catchwords:
Practice and procedure - Costs - Turns on own facts
Legislation:
Industrial Relations Act 1979, s 86(2)
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr A L Drake-Brockman & Mr B R Jackson
Respondents : Ms M G Saraceni
Solicitors:
Appellant : Gadens Lawyers
Respondents : Jackson McDonald
Case(s) referred to in judgment(s):
Matthews v Citigroup Pty Ltd (in liq) [2003] WASC 87
Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22
Case(s) also cited:
Builders Labourers, Painters and Plasterers Union of Workers (Western Australia) v Clark (1995) 62 IR 334
(Page 3)
1 JUDGMENT OF THE COURT: The appellant has been granted leave to discontinue the appeal, and the first and second respondents now apply for an order for costs and expenses against the appellant, pursuant to s 86(2) of the Industrial Relations Act 1979.
2 The background to the application is as follows.
3 The appellant was dismissed from his employment. He complained that his dismissal was unfair. It was not clear who his employer was, so he took action against all three respondents to this appeal. The third respondent (Citigroup) was in liquidation and played no part in the proceedings. The Commissioner held that the appellant was employed by Citigroup and dismissed the claims against the other two respondents.
4 The appellant then appealed to the Full Bench, with the object of establishing that one or other of the first or second respondents, and not Citigroup, was the employer. On this appeal to the Full Bench, the appellant applied to amend its grounds of appeal to exclude Citigroup as a party. The Full Bench decided that this application was a "civil proceeding" within the meaning of s 500(2) of the Corporations Act 2001, which provides that "no action or other civil proceeding is to be proceeded with or commenced" after a resolution to wind up a company. The Full Bench held that because no leave had been obtained to make such application, it could not be proceeded with and must be refused. This happened on 7 March 2003. The appellant's appeal was adjourned for him to consider his position.
5 The appellant then appealed to this Court against that decision on grounds, inter alia, that:
"The appeal before the Full Bench is not a proceeding … (and that) the application to amend the notice of appeal so as to exclude Citigroup Pty Ltd (In Liquidation) could only benefit Citigroup Pty Ltd (In Liquidation). Citigroup Pty Ltd's interests are not directly affected by the outcome of the appeal. It will not be prejudiced indeed it can only benefit if the appeal is successful because the appellant will not be lodging a proof of debt in its liquidation."
6 It was not necessary for the appellant to proceed with this appeal because on 30 April 2003 the appellant applied for, and obtained, an order nunc pro tunc from Master Newnes under s 500(2) of the Corporations Act to allow him to make the application to remove Citigroup as a party to
(Page 4)
- the appeal before the Full Bench. As a result, the appellant then discontinued its appeal to this Court.
7 The first and second respondents argue that they should have their costs and expenses. The claimed costs are the legal costs charged by the solicitors for the first and second respondent. There are some minor "expenses" in the form of service fees and photocopying fees.
8 Section 86(2) of the Industrial Relations Act 1979 authorises this Court to make such orders as it thinks just as to the costs and expenses of proceedings before the Court, but the subsection continues:
" … costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party."
9 It is clear that the policy envisaged by s 86(2) is that it will be on very rare occasions that a costs order will be made. Proceedings will have been "frivolously or vexatiously" instituted where it can be said that the matter was "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; that it "discloses a case which the court is satisfied cannot succeed"; or that "under no possibility can there be a good cause of action". See Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22 at 26-27.
10 In our opinion, the appellant's appeal was not frivolous or vexatious. It is not necessary to express any views about the merits of the appeal other than to note that the purpose of s 500(2) of the Corporations Act 2001 is to prevent a company in liquidation being subject to actions that are carried on unnecessarily at the expense of the creditors of the company. See the authorities referred to in Master Newnes' reasons for decision in this matter in Matthews v Citigroup Pty Ltd(in liq) [2003] WASC 87. In our view, the appellant's contention that the Full Bench erred was not untenable. On the contrary, it was strongly arguable that the application to the Full Bench was not an attempt to proceed with, or commence, proceedings against Citigroup. In consequence, the appeal to this Court was not frivolous or vexatious.
11 The first and second respondents also sought to recover the minor expenses referred to above. In relation to those minor expenses, we would exercise our discretion not to award them.
(Page 5)
12 As a result, we dismiss the application for costs.
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Costs
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2
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