Nilsen v Loyal Orange Trust

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.