Richtsteiger v Century Geophysical Corporation

[1996] IRCA 530

DECISION NO:530/96

CATCHWORDS

INDUSTRIAL LAW - application for COSTS - whether s 170EHA Industrial Relations Act 1988 available - whether proceedings instituted vexatiously or without reasonable cause

Industrial Relations Act 1988 ss 347, 170EHA
Industrial Relations and other Legislation Amendment Act 1995 Sch 2

R v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
Roslyn Fenech v Perfect Health Medical Centres Pty Ltd (unreported, IRCA, Marshall J, VI 1491/96, 2 May 1996)
Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

No. TI 1256 of 1995

ALBIN ERICH RICHTSTEIGER v CENTURY GEOPHYSICAL CORPORATION

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     31 October 1996

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )   
  No. TI 1256 of 1995

BETWEEN:    ALBIN ERICH RICHTSTEIGER

Applicant

AND: CENTURY GEOPHYSICAL CORPORATION
  Respondent

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     31 October 1996

ORDER

THE COURT ORDERS THAT:

1.Respondent’s notice of motion dated 11 October 1996 be dismissed.

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

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )   
  No. TI 1256 of 1995

BETWEEN:    ALBIN ERICH RICHTSTEIGER

Applicant

AND: CENTURY GEOPHYSICAL CORPORATION

Respondent

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     31 October 1996

EX-TEMPORE REASONS FOR JUDGMENT

The matter before the Court this morning is a notice of motion issued by the respondent, Century Geophysical Corporation (“Century”) whereby Century seeks orders that the applicant, Mr Albin Richtsteiger, pay Century’s costs in the proceeding which was determined by the Court’s orders of 8 October 1996 in accordance with the reasons for judgment of that day.

Century sought costs pursuant to s 347 Industrial Relations Act 1988 (“the Act”) and in the alternative pursuant to s 170EHA of the Act. Section 170EHA is not available to Century. It only applies to matters commenced on or after 15 January 1996. See Industrial Relations and other Legislation Amendment Act cl 14 of Sch 2 of which commenced on 15 January 1996. See also Roslyn Fenech v Perfect Health Medical Centres Pty Ltd (unreported, IRCA, Marshall J, VI 1491/96, 2 May 1996, at 4). As this application was lodged prior to 15 January 1996, s 170EHA is of no assistance to Century.

Century’s primary reliance was on s 347 of the Act. Section 347(1) provides as follows:

“347(1)  [Payment of costs]  A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.”

I do not consider that the proceeding was instituted vexatiously. In my view Mr Richtsteiger held what he believed to be a genuine grievance in respect of what he perceived to be the termination of his employment, and sought redress in the Court. I also do not consider that the proceeding was instituted without reasonable cause. The following observations of Gibbs J in respect of a predecessor section to s 347 of the Act in R v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, 473 are apposite:-

“In my opinion a party cannot be said to have commenced a proceeding ‘without reasonable cause’, within the meaning of that section, simply because his argument proves unsuccessful.”

It cannot be said that at the time of the institution of the proceeding that there was no substantial prospect of Mr Richtsteiger succeeding. See Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 - 265 and Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 448 - 449. Also, it was not clear on Mr Richtsteiger’s version of the facts that his application must fail. Indeed, the Court rejected a no case submission made by Century.

Accordingly I reject Century’s application for costs.  The order of the Court will be that the respondent’s notice of motion dated 11 October 1996 be dismissed.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  

Counsel for the Applicant:            J Crotty
Solicitor for the Applicant:           James Crotty

Counsel for the Respondent:           R Schroeder
Solicitor for the Respondent:          Knox Hargrave

Date of hearing:  31 October 1996
Date of judgment:  31 October 1996