Soto v Cecil Bros and Suburban Pty Ltd

[1997] IRCA 38

DECISION NO:38/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - application for COSTS - adjournment pending determination of review.

Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988 (Cth)) Ss 170EA, 347(1).

Reed v Blue Line Cruises Limited IRCA No. 571 of 1996, Moore J, 26 November 1996, unreported.

Juan Agustin SOTO -v- CECIL BROS & SUBURBAN PTY LTD 
WI 1276 of 1996

BEFORE:       R. D. FARRELL J
PLACE:          DARWIN (Heard in Perth)
DATE:             18 February 1997

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA                   )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         

No. WI 1276 of 1996

BETWEEN:  

Juan Agustin SOTO
  Applicant

AND:  

CECIL BROS & SUBURBAN PTY LTD
               Respondent

MINUTE OF ORDERS

BEFORE:               R. D. FARRELL JR

PLACE:                  DARWIN (Heard in Perth)

DATE:  18 February 1997

THE COURT ORDERS THAT:

1.         The respondent’s application for costs is adjourned pending the   determination of the review.

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
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1276 of 1996

BETWEEN:

Juan Agustin SOTO
Applicant

AND:

CECIL BROS. & SUBURBAN PTY LTD
Respondent

REASONS FOR DECISION

18 February 1997  R. D. FARRELL JR

In a decision dated 28 October 1996, the Court as presently constituted dismissed Mr Soto’s application for compensation for the alleged unlawful termination of his employment by his employer, Cecil Bros. & Suburban Pty Ltd (“the Company”). The application was brought under Section 170EA of the Industrial Relations Act 1988. The application was dismissed when the Court upheld a no case to answer submission after Mr Soto had led all his evidence. The Court found that there had been no termination at the initiative of the employer, so that the Act did not apply.

On 15 November 1996, the Company filed a Notice of Motion seeking orders that Mr Soto pay the Company’s costs of defending the application.

The Company relied upon Section 347(1) of the Act, which provides that:

“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.”

On the same day, Mr Soto filed a Notice of Motion seeking a review of the Court’s decision.

When the Company’s Notice of Motion came on for hearing on 27 November 1996, counsel for the Company offered to have the Company’s application for costs adjourned, pending determination of the review.

I indicated at that I would hear and decide the application, but that any order for costs would be in terms such that payment was not required until the review was decided. My concern was to avoid the possibility of the costs application coming before me again after the review had been determined, so that a further review might be sought of my decision as to costs. By deciding the matter, the Court on review could review both the substantive decision and my order as to costs.

I reserved my decision on costs. The decision of Moore J in Reed v Blue Line Cruises Limited (IRCA No. 571 of 1996, Moore J, 26 November 1996, unreported, at p1 and 16) has since come to my attention. In the course of his decision, Moore J noted that the Judicial Registrar in that case had made an order that the applicant pay the respondent’s costs, and that no reasons had been published explaining why the provisions of s 347 did not constrain the Court in relation to any costs order. He later stated that:

“An order requiring [the applicant] to pay the cost of the company should not, in my view, have been made at least at the time it was. The application does not, to this point, have the characteristics of an application to which the provisions of s 347 would apply.”

Moore J would appear to be indicating that it is inappropriate that costs be ordered until the proceeding has been finally concluded. Given the entitlement to review where matters are heard by judicial registrars, that finality is only achieved upon the determination of the review or the expiry of the time period within which a review may be sought.

I will therefore refrain from deciding the Company’s application for costs. The Company can avoid the risk of a further review by making an application for costs to the Judge on review, should the review be unsuccessful.

I certify that this and the preceding 3 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:                  18 February 1997

APPEARANCES

The applicant represented himself.

Counsel appearing for the respondent: Mr A.J. Smetana

Representatives for the respondent:             Chamber of Commerce & Industry               of WA (Inc)

Dates of Hearing:  27 November 1996

Date of Reasons:  18 February 1997