Thomas v School of Mines Services Pty Ltd

[1996] IRCA 425

DECISION NO: 425/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - non appearance of applicant - order for COSTS.

Industrial Relations Act 1988 (Cth) Ss 170EA, 170EHA, 347.

Lloyd THOMAS -v- SCHOOL OF MINES SERVICES PTY LTD 
WI 1171 of 1996

BEFORE:       R. D. FARRELL JR
PLACE:          KALGOORLIE
DATE:            5 August 1996

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

No. WI 1171 of 1996

BETWEEN:  

Lloyd THOMAS  Applicant

AND:  

SCHOOL OF MINES SERVICES
PTY LTD
  Respondent

MINUTE OF ORDERS

BEFORE:               R. D. FARRELL JR

PLACE:                  KALGOORLIE

DATE:  5 August 1996

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the respondent costs incurred by the respondent since         1 August 1996, such costs to be taxed.

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 1171 of 1996

BETWEEN:

Lloyd THOMAS
Applicant

AND:

SCHOOL OF MINES SERVICES PTY LTD
Respondent

REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
5 August 1996  R. D. FARRELL JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988  arising from the alleged unlawful termination of the employment of the applicant, Mr Lloyd Thomas, by the respondent, the School of Mines Services Pty Ltd.

2. There is no appearance by the applicant this morning.

3. Mr Cole, who appeared for the respondent, sought to have the application dismissed and, further, sought costs pursuant to Sections 347 and 170EHA of the Act.

4. The last occasion upon which the applicant appeared in the course of this matter was a telephone directions hearing on 20 June, 1996. At that directions hearing, the Court made orders which included an order that the applicant file a summary of facts by 4 July 1996. The applicant has not complied with that order.

5. A letter was sent by the Court to the applicant at the post office address given in his application as his address for service. That letter was dated 17 July 1996. The letter:

   ·   gave the applicant notice of a callover to be conducted at 3.00pm on Wednesday

   24 July 1996;

   ·   noted the mobile telephone number which had been provided by the applicant as his contact telephone number; and

   ·   asked the applicant to check that the details, which included that mobile phone number, were correct and to advise the Court of any changes if they were not.

6. At 3.00pm on Wednesday, 24 July 1996 the Court made efforts to contact the applicant on that mobile telephone number but was unable to do so. As a result, the callover could not go ahead.

7. Following that difficulty, the Court wrote to the applicant on 30 July 1996, again at the address given for service. That letter confirmed again that the matter was set down for hearing in Kalgoorlie at 10 o’clock today. The letter also advised the applicant that the Court had been unsuccessful in contacting him at the time set for the callover and that the Registry staff had been unable to contact him since that time. The letter went on to tell the applicant that if he wished to proceed with the matter, he should contact the Registry of the Court by no later than 4.00pm, Wednesday, 31 July 1996.

8. The applicant failed to contact the Court by that time, or since. Had he done so and either indicated that he did not wish to proceed or sought an adjournment, the Court and the representative of the respondent could have avoided the costs incurred of travelling to Kalgoorlie.

9. An officer of the Court was eventually successful in contacting the applicant at 9.30am today. I have a note from the Court Officer involved to the effect that, Mr Thomas stated he could not be at the Court at 10.00am, that he was in Boulder, a town less than an hour’s drive from Kalgoorlie, and that he believed the matter was going to be dismissed because he had not contacted the Court.

10. In all the circumstances, I consider it to be appropriate that the application be dismissed and I will so order.

11. I turn to consider the respondent’s application for costs.

12. There are authorities of this Court to the effect that in determining whether the proceeding was instituted vexatiously or without reasonable cause for the purposes of Section 347, the relevant time at which it must be established that that was the case is the time at which the application was made.

13. There is nothing before the Court to indicate the applicant’s state of mind at the time. Having considered the summary of facts filed by the respondent, there is nothing to indicate that the application was without any reasonable prospect of success.

14. Because of the manner in which Section 347 is framed, it has rarely been successfully invoked. However, the legislature has amended the Act to insert a new section 170EHA, which provides that:

    “If... the Court is satisfied that a party to the proceeding has caused any other       party to the proceeding to incur costs because of an unreasonable act or   omission of the first-mentioned party in connection with the conduct of the          proceeding... , the Court may order the first-mentioned party to pay all or part          of the costs incurred by that party.”

15. That provision empowers the Court to make some provision for costs in these circumstances, where the unreasonable failure of the applicant to respond to the Court’s letter or to notify the Court in advance of his decision not to appear has caused the respondent to continue to prepare the matter and to incur the expense of bringing its representative to Kalgoorlie.

16. I will therefore order that the applicant pay that part of the respondent’s costs to be taxed in so far as those costs have been incurred by the respondent since 1 August 1996.

    I certify that this and the preceding (4) pages
    are a true copy of the reasons for decision of
    Judicial Registrar R.D. Farrell.

    Associate:
    Dated:

    APPEARANCES

    No appearance by the applicant.        

    Representative of the respondent:      Mr G Cole

    Date of Hearing:  5 August 1996

    Date of Judgment:  5 August 1996