Smallwood, David John v Townsville & District Aboriginal & Torres Straight Islander Corp for Legal Services

[1997] FCA 1082

NOT FOR GENERAL DISTRIBUTION

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -  ALLEGED UNLAWFUL TERMINATION  -  NOTICE OF DISCONTINUANCE  -  APPLICATION FOR COSTS

WORKPLACE RELATIONS ACT  1996, s170EA, ss347(1), ss170EHA(1)

Attorney-General v Wentworth (1988) 14 NSWLR 481

DAVID JOHN SMALLWOOD -v-  TOWNSVILLE AND DISTRICT ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATION FOR LEGAL SERVICES

NI 96/2178

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       17 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA  No.  NI  96/2178
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  DAVID JOHN SMALLWOOD

Applicant

AND:                  TOWNSVILLE AND DISTRICT ABORIGINAL AND TORRES   STRAIT ISLANDER CORPORATION FOR LEGAL SERVICES

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                17 OCTOBER 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application for costs be allowed.

1. The applicant pay costs fixed in the sum of $500 to the respondent   within 14 days of this order.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  No.  NI  96/2178
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  DAVID JOHN SMALLWOOD

Applicant

AND:                  TOWNSVILLE AND DISTRICT ABORIGINAL AND TORRES   STRAIT ISLANDER CORPORATION FOR LEGAL SERVICES

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                17 OCTOBER 1997

REASONS FOR JUDGMENT

The respondent applies by way of written submission for costs in respect of proceedings discontinued by the applicant on 14 July 1997.  So far as leave was required to discontinue, I grant that leave with effect from the date of the filing of the notice of discontinuance.

The proceedings were originally instituted on 16 September 1996.  They were due to go to trial in Townsville on 12 May 1997.  On that date Ryan JR ordered that the trial be adjourned, with the parties to file Contentions of Fact and Law by 22 May 1997.  The applicant did not ever comply with this direction.  On 2 July 1997 I ordered that the trial commence in Cairns on 28 July 1997, for 5 days.

It is fair to say that the applicant’s conduct of the proceedings has been dilatory.  That is pointed up in the Chronology filed by the respondent in support of the present application.

The respondent asks me to infer from the applicant’s conduct of the proceedings that they were instituted for an improper purpose, or were an abuse of process, entitling it to an order for costs pursuant to ss347(1) of the Workplace Relations Act 1996.  It is understandably galled by the applicant’s failure to comply with directions made by the Court and his failure to notify its Solicitors of his intention to discontinue the proceedings, its Solicitors having first learnt of this fact from the Court on 8 July 1997.

While the applicant’s conduct of the proceedings deserves some castigation, I find myself unable to draw the inference that his proceedings were instituted vexatiously or without reasonable cause.  I am assisted in my consideration of this aspect by the remarks of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 487.

While the respondent did not rely on ss170 EHA(1) of the Act, I think it appropriate to consider that subsection.  I note that the respondent took steps in preparation for trial between my setting trial dates on 2 July, and its learning from the Court of the applicant’s intention not to proceed, on 8 July 1997.  Proceedings on the applicant’s behalf were filed against the respondent in the Queensland Industrial Relations Commission on 2 July 1997.  I infer that at least by this date a decision had been taken by him or those acting on his behalf not to proceed in this Court.  While the Court was informed of that fact (and passed it on to the respondent on 8 July),. the applicant had not let the respondent know.  I am satisfied that in this regard the applicant was guilty of an unreasonable act or omission in his conduct of the proceedings, thereby causing the respondent to incur costs.

I fix the costs occasioned to the respondent in the sum of $500.00, to include its costs of this application.

I order:

1.      the application for costs be allowed.

2.      the applicant pay costs fixed in the sum of $500 to the respondent   within 14 days of this order.

I certify that this and the preceding page are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  17 October 1997  

Appearing for the Applicant:           Mr O’Donnell
  Australian Municipal Administrative Clerical   and Services Union

Solicitors for the Respondent:         Minter Ellison

Filing of final written submission:             18 September 1997

Date of judgment:  17 October 1997