Theodore Geros v Professional Steering & Suspension Centre - [1995] IRCA 668

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3388 of 1995

B E T W E E N :

THEODORE GEROS
Applicant

AND

PROFESSIONAL STEERING & SUSPENSION CENTRE
Respondent

Before: Judicial Registrar Murphy
Place: Melbourne
Date: 12 December 1995

EX-TEMPORE REASONS FOR JUDGMENT

Before the Court are two applications. The first is an application by the Respondent that the solicitors for the Applicant pay the costs thrown away as a result of the failure of the Applicant or his solicitors to appear when the matter was listed for hearing on 4 December. The second application is that the Applicant pay the costs of the proceeding on the basis that the proceeding, having been dismissed, was instituted “vexatiously or without reasonable cause”, pursuant to Section 347 of the Industrial Relations Act 1988 (“the Act”).

Costs against practitioners.
In Canceri v Taylor (1994) I IRCR 120 the Court confirmed its inherent power, subject to Section 347 of the Act, to order costs against practitioners.

The present application against the Applicant's solicitors arises out of the fact that neither the Applicant nor his solicitors attended Court when the matter was listed for hearing on 4 December. On that day the Court received by facsimile a letter purporting to be a notice of withdrawal of practitioner. An affidavit from the solicitors for the Applicant sworn 11 December 1995 deposes that instructions were received from the Applicant shortly prior to the hearing date that a notice of discontinuance be filed, but this was not done by the solicitors.

No explanation was provided by the solicitors for the Applicant as to why there was no proper application under Order 45 Rule 7 of the Rules of Court to withdraw as a practitioner. The result of the failure of the Applicant or his solicitors to appear on 4 December was that the solicitors for the Respondent and the Respondent were forced to the expense of preparing for the trial and then having the matter adjourned to this day to allow them to make a costs application. The Court is satisfied that the solicitors for the Applicant should pay the costs thrown away by reason of their failure to appear.

The costs sought are counsel's fees, witness expenses and solicitors costs and I fix them at $2466.

Were the proceedings instituted vexatiously or without reasonable cause?
Counsel for the Respondent relied on the test outlined by Wilcox J, as he then was, in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, 264. This case requires the Court to look at the position from the point of view of the Applicant at the time the proceedings were instituted, and to ask whether, “on the Applicant’s own version of the facts, it is clear that the proceeding must fail.”

The Court heard evidence from Mr William Rolfe (“Rolfe”), the Managing Director and owner of the Respondent, that the Applicant, at the time he sought employment, had proffered to him a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 668
Decision Date: 12 Dec 1995

CaseChat Overview and Summary

In the Industrial Relations Court of Australia, the case of Theodore Geros versus Professional Steering & Suspension Centre arose from a dispute over the termination of the applicant's employment. The applicant, Geros, filed an unfair dismissal claim against the respondent, Professional Steering & Suspension Centre, but the case was dismissed. The court was tasked with addressing two applications, one from the respondent seeking costs incurred due to the applicant's failure to appear at the scheduled hearing, and another seeking costs from the applicant for the proceeding being deemed vexatious or instituted without reasonable cause.

The court examined the respondent's application for costs incurred by the failure of the applicant or his solicitors to appear for the hearing on the scheduled date. The court found that the applicant's solicitors did not properly apply to withdraw as a practitioner, leading to the respondent's solicitors and the respondent themselves incurring costs for preparation and the subsequent adjournment. The court held that the applicant's solicitors should pay the costs, which were fixed at $2,466.

The court then turned to the respondent's application for costs under Section 347 of the Industrial Relations Act 1988, which allows for costs to be awarded if the proceeding was instituted vexatiotously or without reasonable cause. The court assessed whether the applicant's claims had any reasonable basis at the time they were filed, considering the evidence of the applicant's false reference and his performance during the probationary period. The court found that the applicant's claims were without reasonable cause, and thus, it was proper to award costs to the respondent. These costs were fixed at $2,016.

In conclusion, the court ordered the applicant's solicitors to pay $2,466 in costs to the respondent, and the applicant himself to pay $2,016 in costs of the proceeding to the respondent. These orders were to be settled and entered in accordance with Order 36 of the Industrial Relations Court Rules.

Orders