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”
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:
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 OF1994
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.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
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.