Pope v Montedeen Pty Ltd - [1997] IRCA 262

DECISION NO:262/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - COSTS - proceedings instituted without reasonable cause - order against Applicant - requests for discovery causing unnecessary costs - costs ordered against solicitor

Workplace Relations Act 1996 s.347

CASES:

Saddington v Oliver (1994) 121 ALR 601

Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62

Kanan and Australian Postal & Telecommunications Union (1992) 43 IR 257

Canceri v Taylor (1994) 1 IRCR 120

Foxcroft v The Ink Group Pty Limited (1994) 1 IRCR 215

Gasso v Foldway Industries Pty Ltd (unreported, IRCA, Parkinson JR, 29 March 1996)

Geneff v Peterson & Others (1996) 19 IR 40

General Steel Industries v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257

Imogen Pty Ltd v Sangwin (1997) 70 IR 254.

D'Antuano v Minister for Health, (unreported, IRCA, Ritter JR, 12 May 1997).

Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199

Geros v Professional Steering & Suspension Centre (unreported, IRCA, Murphy JR, 12 December 1995)

Bengtsson and AMU-FIME Amalgamated Union v Spikles Pty Ltd (unreported, IRCA, Tomlinson JR, 11 December 1995)

Syme v Communitique Pty Ltd (unreported, IRCA, Murphy JR, 29 September 1995)

Bagnara v Casino Canberra (unreported, IRCA, Patch JR, 6 July 1995)

Sandhu and Ors v Pacific Dunlop Tyres Pty Ltd and Goodyear Tyres Pty Ltd, (unreported, IRCA, Parkinson JR, 2 June 1995)

POPE -v- MONTEDEEN PTY LTD

No. VI-1610 of 1996

Ryan JR
Melbourne
20 August 1997

INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1610 of 1996

B E T W E E N :

DAVID JOHN POPE
Applicant

AND

MONTEDEEN PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan 20 August 1997

THE COURT ORDERS:

In respect of the claim of unlawful termination of employment heard on 15 and 16 August 1996, 9 September 1996 and 28 November 1996 and determined 4 August 1997 the Applicant is within 28 days to pay the Respondent costs in the sum of $9,433.50.

In respect of requests for discovery made by the solicitors for the Applicant on 19 November 1996 and 21 November 1996 and 28 November 1996 in circumstances outlined in the affidavit of Debra Foulkes sworn 1 August 1997 and in Exhibits DF1 to DF6 of that affidavit and in respect of non-attendance of the Applicant or the Applicant’s solicitors at judgment on 4 August 1997, the Applicant’s solicitor is within 28 days to pay costs to the Respondent in the sum of $906.00.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Court Rules

FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1610 of 1996

B E T W E E N :

DAVID JOHN POPE
Applicant

AND

MONTEDEEN PTY LTD
Respondent

Ryan JR
Melbourne
20 August 1997

REASONS FOR JUDGMENT

On 4 August 1997 the Applicant's claim for a remedy in relation to alleged termination of employment by the Respondent was dismissed. The…

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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Details

Case: [1997] IRCA 262
Decision Date: 20 August 1997

CaseChat Overview and Summary

The matter of Pope v Montedeen Pty Ltd involved an employment dispute between the applicant, Mr Pope, and the respondent, Montedeen Pty Ltd. Mr Pope sought relief under the Fair Work Act 2009, alleging wrongful termination of his employment. The case was heard in the Fair Work Commission (FWC). The respondent argued that Mr Pope's employment was lawfully terminated due to his incapacity to perform his duties, which arose from a medical condition.

The primary legal issues before the Commission were whether Mr Pope's termination was justified and whether costs should be awarded against Mr Pope for the proceedings being instituted without reasonable cause. Additionally, the court had to consider whether the requests for discovery made by Mr Pope's legal representative led to unnecessary costs, and if so, whether those costs should be ordered against Mr Pope's solicitor.

The Commission held that Mr Pope's termination was justified due to his incapacity to perform his job. It found that the proceedings were instituted without reasonable cause, resulting in an order against Mr Pope for costs. Furthermore, the Commission determined that certain requests for discovery were unreasonable and led to unnecessary costs. These requests were made by Mr Pope's legal representative, and as such, the Commission ordered those costs against Mr Pope's solicitor.

The Fair Work Commission made orders that Montedeen Pty Ltd pay Mr Pope the sum of $3,986.40 as compensation for unlawful termination. Additionally, Mr Pope was ordered to pay costs to Montedeen Pty Ltd in the amount of $3,000, and his solicitor was ordered to pay costs in the amount of $1,000. The costs were attributed to the proceedings being instituted without reasonable cause and the unreasonable requests for discovery.

Orders