Nasby v Oil Drilling and Exploration Limited
[1996] IRCA 533
•31 October 1996
DECISION NO:533/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NI 1471 of 1996
STEVEN RUSSELL NASBY
Applicant
OIL DRILLING AND EXPLORATION LIMITED
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Sydney
Date: 31 October 1996
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)
The orders today will be:
That the application be dismissed;
That the applicant pay the respondent's costs in the proceedings pursuant to Sections 347 and 170EHA in the total sum of $2000.
This is an application pursuant to the provisions of Section 170EA of the Industrial Relations Act,1988 which was filed in the Australian Industrial Relations Commission on 12 March 1996. The application indicates that the applicant was employed as a driller and that his place of work was at Muscat in Oman. The application indicates that the employment subsisted between 22 October 1990 and 23 December 1995. The Notice of Employers Appearance, filed in the Commission on 15 March 1996, notes that the respondent will claim ‘lack of jurisdiction as Nasby is a Canadian resident and was employed to work in Oman. There was no Australian contract of employment.’
The applicant was therefore on notice that the question of the jurisdiction of an Australian Court in respect of this employment contract was an issue at the earliest possible time after the filing of his Application. The history of the matter thereafter, is that on 1 May 1996, Deputy President Drake certified that the Commission had been unable to settle the matter by conciliation and that the parties had not elected to have the matter dealt with by consent arbitration. The papers were then forwarded to this Court and the first directions hearing was fixed for 17 July 1996.
The Court file shows that on 11 July 1996, District Registrar Hagan telephoned the applicant and informed him of the proposed Telephone Directions hearing scheduled for 17 July and also informed him that he should be prepared to address the Court as to its jurisdiction and the need for the applicant to be represented by someone in Australia. The Telephone Directions hearing was conducted by District Registrar Hagan on 17 July and was attended by Mr Nasby in person and Mr Price, Solicitor, for the respondent. The Court record for that day indicates that the issues relevant to the proceedings were discussed and those issues included the suggested lack of jurisdiction of the Court.
The Court record notes that the applicant was to retain an Australian Solicitor by 21 August 1996 and he was directed to have his Solicitor file and serve a Notice of Appearance by that date. He was further directed that both Mr Nasby and his Solicitor be present at further Telephone Directions which were scheduled for 21 August 1996. On 21 August 1996, Telephone Directions were conducted between District Registrar Hagan, Mr Nasby and Mr Price. Mr Nasby had not retained a Solicitor at that stage. The respondent put Mr Nasby on notice of the possibility of the Court’s dealing with the jurisdictional question as an interlocutory proceeding and the District Registrar appointed further Telephone Directions for 11 September.
On 11 September, Mr Nasby and Mr Capelin appeared in Telephone Directions before District Registrar Hagan. The matter was listed for hearing for two days on 3 and 4 February 1997 and also listed for further Telephone Directions on 2 October 1996. On 2 October 1996, Mr Nasby did not appear at the Telephone Directions and Mr Capelin appeared for the respondent. Mr Capelin foreshadowed a Notice of Motion and Orders were made in relation to the mode of service of any Notice of Motion. A Notice of Motion was filed and was returnable on 28 October 1996 before me. On that day there was no appearance by the applicant and there was doubt as to whether he had been properly served with the Notice of Motion and it was adjourned to today. Further Orders were made as to the mode of service.
I have before me today, an affidavit of Mr Capelin sworn on 29 October 1996 and I am satisfied that the Orders of 28 October 1996 have been complied with. I also have an affidavit of Stephen Price, sworn on 28 October 1996 and an affidavit of Megan Sainsbury, sworn on 28 October 1996. I am satisfied that the applicant now has notice of the Notice of Motion and of the proceedings today. There is no appearance by or for him and he has not responded to any of the recent communications from the Solicitors for the respondent. I am satisfied that the applicant has not taken the appropriate steps to give the Court any confidence that he is bona fide in his Application to this Court and I propose to dismiss the Application.
There is an application for costs. The relevant Sections are Sections 347 and Section 170EHA. I am satisfied that it is proper within the terms of both of those provisions of the Act to order costs. There is clearly, in my view, reason based on the history of the matter, which I have outlined in detail, to conclude that the Application, when it was filed, was filed without reasonable prospect of success and that the applicant did not have an arguable case. That is largely because of the question of jurisdiction. I note that there are papers in the Court file which are not strictly in evidence but which are documents signed by the applicant, generated between him and the respondent, on the face of which it is clearly evident that the making of this employment contract and the performance of it had no relationship with Australia whatsoever and it would appear from the information available to me, that the only nexus with Australia is that the hapless respondent happens to have an office in Australia.
On that basis, it cannot be said that the applicant had any reasonable cause to commence these proceedings and he therefore suffers the imposition of an order for costs under Section 347. In relation to the interlocutory steps which have been taken, the Directions Hearings, apart from the First Directions Hearing, all appear to have been caused by the failure of the applicant to properly attend to preparation of his case. The Notice of Motion returnable on 28 October and adjourned to today was made necessary by the applicant's failure to prosecute the matter and has successfully resulted today in the dismissing of the application. Costs are there payable, in my view, under both of those Sections. It is not necessary for me to apportion the total amount of the costs between the two Sections.
The Solicitor for the respondent asks for a sum of $2000, calculated on the basis of Mr Price's time at $330 an hour and Mr Capelin's time at $275 an hour. Those hourly rates, whilst they might be said to be at the higher end of a reasonable scale, are justified in my view by the complexity of the jurisdictional issue raised by the applicant by bringing these proceedings in an Australian Court. The sum of $2000 claimed appears to me to be a modest sum, even given the hourly rates, considering that there have been six appearances before this Court, the preparation of the Notice of Motion and supporting affidavits and the necessary work for the Solicitors for the respondent in reporting to their client, advising their client and seeking further instructions.
It is my view that the sum claimed is a modest sum and on that basis I make the order for costs which I have foreshadowed.
The orders I make are therefore :
That the application be dismissed;
That the applicant pay the respondent's costs in the proceedings pursuant to Sections 347 and 170EHA in the total sum of $2000.
I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh
Associate: Renee Cauchi
Date: 7 November 1996
The applicant did not appear at the hearing
Solicitor for the Respondent: Mr T Capelin
Corrs Chambers Westgarth
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - JURISDICTION OF THE COURT - COSTS
Industrial Relations Act 1988, ss 170EA, 170EHA, 347.
STEVEN RUSSELL NASBY -v- OIL DRILLING AND EXPLORATION LIMITED
No. NI 1471 of 1996
CORAM: LINKENBAGH JR
PLACE: SYDNEY
DATE: 31 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NI 1471 of 1996
STEVEN RUSSELL NASBY
Applicant
OIL DRILLING AND EXPLORATION LIMITED
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Sydney
Date: 31 October 1996
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed;
That the applicant pay the respondent's costs in the proceedings pursuant to Sections 347 and 170EHA in the total sum of $2000.
Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
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