Seager, Karen Suzzane v Sydney College of English Pty Ltd

[1997] FCA 1195

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2315R of 1996

BETWEEN:	KAREN SUZZANE SEAGER APPLICANT
AND:	SYDNEY COLLEGE OF ENGLISH PTY LIMITED RESPONDENT

JUDGE:	MOORE J
DATE:	28 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Delivered ex tempore)

This is an application for leave to discontinue an application for review which was filed on 14 August 1997 by Sydney College of English Pty Limited ("the College").  The application for review followed a judgment of a Judicial Registrar determining that the termination of Ms Karen Seager was in contravention of the provisions of the Industrial Relations Act 1988 ("the Act") and awarding her compensation in the sum of $19,680. That judgment was given on 25 July 1997. The application for review has been before the court on a number of occasions for a variety of interlocutory steps which I need not now detail.

The application for leave to discontinue the proceedings is brought without explanation in the sense that there is no evidence before the court indicating why the decision is being made to seek leave to discontinue the proceedings. I should add that, counsel for the College, Mr Fernon, says, and I accept, that the nature of the proceedings before the Judicial Registrar were such that views may differ as to whether the termination of Ms Seager was in contravention of the Act. However, that appears to me not to be the relevant issue.

Considerations such as that would normally be addressed at the time a decision was taken to apply for a review.  In circumstances where such a decision is taken, and a review is made, one would ordinarily expect that the review would proceed to hearing unless it was settled. Certainly in circumstances where no explanation is given for the discontinuance, and costs have been incurred on behalf of the respondent in the application for review, the court may readily form the view, as I have in this matter, that the bringing of the application for review together with its discontinuance constitutes an unreasonable act for the purposes of s 170EHA.  That act has caused Ms Seager to incur the costs of defending the review from the date of its instigation to today's date.

Accordingly I am satisfied I have power under s 170EHA to order the Sydney College of English Pty Limited to pay the costs of Ms Seager in the review.  For these reasons I am also satisfied that such an order should be made and I order that the Sydney College of English Pty Limited pay the costs of Ms Seager in the review.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:            28 October 1997

Counsel for the Applicant:	Ms J Brouwer
Solicitor for the Applicant:	G H Healey & Co
Counsel for the Respondent:	Mr J Fernon
Date of Hearing:	28 October 1997
Date of Judgment:	28 October 1997