Taudevin v Brambles

[1995] IRCA 336

CATCHWORDS

COSTS - whether costs order should be made against employee of respondent company.

Industrial Relations Act 1988 (Cth) - s347.

Canceri v Taylor (1994) 123 ALR 667
Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
Da Sousa & Anor v Minister of State for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544

No. QI 151 of 1994

TAUDEVIN v BRAMBLES

MOORE J

SYDNEY (HEARD IN BRISBANE)

1 August 1995

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )      No. QI 151  of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:           TREVOR GRANT TAUDEVIN

Applicant

AND:          BRAMBLES AUSTRALIA LIMITED

Respondent

JUDGE:    Moore J

PLACE:    Sydney (Heard in Brisbane)

DATE:     1 August 1995

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. Application for costs is dismissed.

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

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )      No. QI 151  of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:           TREVOR GRANT TAUDEVIN

Applicant

AND:          BRAMBLES AUSTRALIA LIMITED

Respondent

JUDGE:     Moore J

PLACE:     Sydney (Heard in Brisbane)

DATE: 1 August 1995

REASONS FOR JUDGMENT

On 1 June 1995 I gave judgment in a review under s377 of the Industrial Relations Act 1988 ("the Act"). It concerned an application under s170EA made by Mr Trevor Taudevin which I dismissed. I reserved on the question of costs. I did so because the applicant sought an order that a Mr Dietrich be ordered to pay part of the applicant's costs said to have arisen from delays caused by Mr Dietrich.

Section 347 generally limits the power of the Court to order a party to pay costs though s347 has no application to an order for costs that might be made against a third party: see Canceri v Taylor (1994) 123 ALR 667 at 669; Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 236. Mr Dietrich is not a party but is an employee of the respondent Brambles Australia Limited ("Brambles"). For a period of time and prior to the involvement of Freehill Hollingdale & Page, Mr Dietrich had the carriage of the matter for Brambles and, to the extent that it involved representation, did so pursuant to the provisions of s469 of the Act.

The events founding the application for an order for costs may be summarised as follows.  The application under s170EA was filed on 10 June 1994.  On 27 June 1994 Mr Dietrich filed a notice of appearance stating that he appeared on behalf of the respondent.  On 15 July 1994 there was a directions hearing before Spender J who directed that the matter be referred to conciliation by the Australian Industrial Relations Commission.  At the directions hearing there was some discussion about the provision of documents by Mr Dietrich on behalf of Brambles.  Before the conciliation proceedings had occurred the applicant's solicitor sent a notice of discovery to the respondent.  This action appears to me to have been premature given that the matter had not been dealt with by the Commission.  However, the conciliation was unsuccessful and on 9 August 1994 the Commission issued a certificate to that effect.  On 24 August 1994 a notice of motion was filed by the applicant's solicitor seeking, inter alia, an order for discovery.  That notice of motion was filed on 10 September 1994 and was returnable on 27 September 1994.  On 26 September 1994 Mr Dietrich sent a list of documents to the applicant's solicitor though it was said to be incomplete and was not in the standard form.  On the return of the notice of motion on 27 September 1994 an order was made requiring the respondent to give discovery.  The order was entered and served on 10 October 1994.  The order required an affidavit to be filed by 24 October 1994 stating what discoverable documents were in the possession of Brambles.  This order was not complied with though on 11 November 1994 an affidavit and list was sent to the applicant's solicitors by Freehill Hollingdale & Page who by then had been instructed by Brambles.  In the meantime the applicant's solicitors had filed and served an application for summary judgment.  There is, in the papers I have been provided with by the applicant's solicitor, an affidavit dated 11 November 1994 sworn by Mr Stewart Eden who is the state manager of United Transport, which was the business of Brambles in which Mr Taudevin had been employed.  He says that an affidavit of documents was executed by him on 11 October 1994 but as a result of an administrative oversight it was neither filed with the Court nor served on the applicant.  These events preceded the hearing and determination of the application under s170EA by the Judicial Registrar.

The applicant relies on this chronology in support of its application for an order for costs. In reply Freehill Hollingdale & Page made a lengthy written submission traversing a number of issues including whether the Court has power to make an order against Mr Dietrich personally in these circumstances. The gravamen of the submission is that the Court does not have power to make an order of the type sought. Further, that Mr Dietrich would be entitled to be indemnified by his employer, Brambles, for any costs order made. Thus, the order would be satisfied by Brambles notwithstanding the provisions of s347. The applicant would therefore be achieving indirectly what s347 precludes him doing directly.

It is unnecessary for me to determine the question of power either to make a costs order against Mr Dietrich personally or to make a costs order in relation to proceedings leading to a judgment of the Judicial Registrar when I am not being asked to review the exercise by a Judicial Registrar of the power to order costs.  Assuming a Judge of the Court does have power to make an order for costs in these circumstances, I would not exercise the discretionary power to do so.  It is clear that Mr Dietrich failed to comply with the order of the Court.  It appears he endeavoured to do so but, as a result of an administrative oversight, did not.  The power to award costs against third parties should be exercised, in my opinion, in clear or exceptional cases.  In Da Sousa & Anor v Minister of State for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, French J ordered a solicitor, who had acted for an applicant, to pay the respondent's costs. The application that had been made was misconceived. In discussing how the discretionary power to order a third party to pay costs should be exercised in those circumstances his Honour said at 712:

"I accept the proposition that the jurisdiction is to be exercised with care and discretion and only in clear cases.  The mere fact that litigation fails is plainly no grounds for its exercise.  there has to be something which amounts to a serious dereliction of duty:  Edwards v Edwards [1958] P 235 at 248."

In my opinion these observations have equal application to the making of a costs order in the present proceedings. This is not a case that is clear or exceptional. It is true that the failure of Mr Dietrich to provide documents to the applicant's solicitor delayed the final hearing of the original application and interlocutory steps were taken to secure compliance with the order for discovery. However, as just noted, this is not a case where Mr Dietrich simply ignored the order. His failure to comply with the order was not contumacious. This statutory right to represent a party carries with it the obligations and responsibility of doing so in conformity with the Act, the Rules of the Court and any procured orders made by the Court. While the Court will expect litigants in person, whether corporations and those acting for them or individuals, generally to comply both with the rules of the Court and its orders, this case is not one which would warrant an order of the type being sought by the applicant.

I make no order as to costs.

I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Moore.

Associate:

Dated:         1 August 1995

APPEARANCES

Counsel for the Applicant:          Mr R Brewer

Solicitor for the Applicant:              J R Manners

Counsel for the Respondent:               Mr Atlerbert

Solicitor for the Respondent:             Freehill Hollingdale & Page, Brisbane

Dates of Hearing:  30 May 1995

Written Submissions Complete:             11 July 1995