Nilsen v Loyal Orange Trust

Case [1997] IRCA 267


DECISION NO:267/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

COSTS - Costs against parties - Whether proceeding instituted vexatiously or without reasonable cause - Meaning of “without reasonable cause” - Whether the review was hopeless or doomed to failure - Meaning of “vexatiously” - Whether predominant or genuine purpose in instituting proceedings is to harass or embarrass the other party, or to gain a collateral advantage

COSTS - Principles for award of costs against non-parties - Costs against the Solicitor - Independence of  legal adviser - Principles for award of costs against solicitors

WORDS AND PHRASES - “without reasonable cause”, “vexatiously”

Workplace Relations Act 1996, s 347
Workplace Relations and Other Legislation Amendment Act 1996 (Cth), item 64, schedule 16

Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
Thompson v Hodder (1989) 21 FCR 467
R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470
Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 157
Attorney General v Wentworth (1988) 14 NSWLR 481
Williams v Spautz (1992) 174 CLR 509
Canceri v Taylor [1994] 1 IRCR 120
Nicholson v Heaven & Earth Gallery Pty Ltd [1994] 1 IRCR 199
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Myers v Elman [1940] AC 282
Ridehalgh v Horsefield [1994] Ch 205
De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544
Re Bendeich (No.2) (1994) 53 FCR 422
Glen Robertson v CSR Readymix (IRCA, Moore J, 5 June 1997, unreported)

NILSEN v LOYAL ORANGE TRUST (ACN 004 245 694)
VI 2875R of 1994

JUDGE:         NORTH J
PLACE:         MELBOURNE

DATED:        11 SEPTEMBER 1997

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 2875R  OF   1994

BETWEEN:

MARGARET NILSEN
APPLICANT

AND:

LOYAL ORANGE TRUST (ACN 004 245 694)
RESPONDENT

JUDGE(S):

NORTH J

DATE OF ORDER:

11 SEPTEMBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. There will be no order as to costs.

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

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

 VI 2875R OF 1994

BETWEEN:

MARGARET NILSEN
APPLICANT

AND:

LOYAL ORANGE TRUST (ACN 004 245 694)
RESPONDENT

JUDGE(S):

NORTH J

DATE:

11 SEPTEMBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 20 February 1997, I gave judgment in this proceeding and dismissed the applicant’s claim that her dismissal was in breach of the Workplace Relations Act 1996 (the Act). I adjourned the question of costs. The parties have made submissions in writing on this subject. As the substantive hearing of this matter had commenced in the Industrial Relations Court of Australia prior to 26 May 1997 this matter remains in the jurisdiction of that court under item 64, schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

The respondent seeks the costs of the initial application before Judicial Registrar Chancellor and of the review before me.…

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Nilsen v Loyal Orange Trust [1997] IRCA 267
Case
[1997] IRCA 267
Decision Date

CaseChat Overview and Summary

In the case of Nilsen v Loyal Orange Trust, the Industrial Relations Court of Australia examined the application of costs provisions under the Workplace Relations Act 1996. The applicant, Margaret Nilsen, sought a review of her dismissal from employment, which she argued was unlawful. The respondent, Loyal Orange Trust, sought costs against both the applicant and her solicitor, Mr Nilsen, who was also the applicant's brother. The court was required to determine whether the proceedings were instituted vexatiously or without reasonable cause, as per section 347 of the Act, and whether the solicitor's conduct warranted costs against him.

The court first assessed whether the review was instituted without reasonable cause. It found that while the applicant's case was weak, it was not utterly hopeless. The court held that the evident policy behind section 347 was to allow applicants to institute weak cases as long as they were not doomed to fail. The court further examined whether the proceedings were instituted vexatiously, considering the predominant purpose of the applicant in instituting the proceeding. It concluded that the applicant's motivations were not primarily vexatious, but rather to challenge her dismissal, despite her strong focus on her expulsion from the Loyal Orange Institution of Victoria.

Regarding the costs against the solicitor, Mr Nilsen, the court noted that while his involvement in the events leading to the applicant's expulsion might have influenced the case's focus, it did not find his conduct to be of such a serious departure from acceptable standards as to warrant an order for costs against him. The court emphasised the need to exercise the jurisdiction to award costs against solicitors with care, focusing on compensating the other party rather than solely punishing the solicitor.

In conclusion, the court found that the applicant should not pay the costs of the review, and there would be no order for costs against Mr Nilsen. The detailed examination of the issues and the conduct of the case, although excessive, did not reach the level of serious departure required for an order of costs against the solicitor.

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Background

Background to the litigation

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Evidence Before The Court

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