Tom Moeke and Cooks Body Works Limited

[1994] IRCA 152

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1352 of 1994

BETWEEN:

TOM MOEKE
Applicant

AND

COOKS BODY WORKS PTY LIMITED
Respondent

BEFORE:Judicial Registrar Millane

PLACE:Melbourne

DATE:9 December 1994

REASONS FOR JUDGMENT (EX TEMPORE) - REVISED FROM TRANSCRIPT

I am satisfied on being informed by the Applicant that, on Monday 5 December 1994, he instructed his solicitor, Mr White, from Behan and Speed, Solicitors, to file a notice of discontinuance in these proceedings.  This was because the Applicant did not have funds to proceed with the hearing.  I am further satisfied that such notice of discontinuance was not filed or served until late on the morning of the hearing on Thursday 8 December 1994.  On that date the solicitors acting for the Applicant did not attend court, they did not seek the consent of the Respondent to the filing and service of the notice of discontinuance in accordance with Order 22 of the Industrial Relation Court Rules, nor did they seek leave of this court to discontinue in the circumstances.

The notice received by the court just prior to the commencement of the hearing is not a valid notice and could not of itself discontinue the proceeding.  I have had an opportunity to read an affidavit filed by the Respondent and sworn by Geoffrey Lloyd Rees on 8 December 1994, indicating that the solicitor for the Applicant Mr White was informed on 8 December 1994 that an application would be made on 9 December 1994 to this court for the Respondent’s costs.  These costs were incurred because of the failure to file and serve a valid notice of discontinuance and attend court on the hearing date.  This court’s listing officer also spoke by telephone to Mr White, the Applicant’s solicitor, on 8 December 1994 and informed him that the Respondent would be making an application for its costs on the following day and further informed him that the notice of discontinuance he attempted to file was not a proper notice of discontinuance and the proceeding was still on foot.

Mr Moeke attended court in person.  He told the court that he was advised by his solicitor, Mr White, on 8 December 1994 that the court did not accept the notice of discontinuance and that in Mr Moeke’s words, “it would be better for me to show up”.  Mr Moeke and the Respondent’s representative have had discussions this morning and Mr Moeke still wishes to proceed with an application to discontinue these proceedings.  Accordingly, the parties have consented to an order and I order that the applicant’s notice of discontinuance dated 8 December 1994 and filed on that date be treated as notice of discontinuance of this proceeding under Order 22 of the Industrial Relations Court Rules, and take effect as and from 4.00pm 9 December 1994.

The Respondent’s counsel has made application for costs to be awarded against the applicant’s solicitors, Behan and Speed, who remain the solicitors on the court record.  In making that application the Respondent relies on the instructions the solicitor received on Monday this week to discontinue, and the failure to take that step forthwith.  The Respondent further relies upon the attempt by the solicitors to serve and file a notice of discontinuance which attempt was not in accordance with the rules of this court.  The court has been informed that the notice of discontinuance was served by facsimile on the solicitors for the respondent at Camberwell at approximately 9.58am on the morning of the hearing.

The solicitors for the Applicant did not attend court on the hearing date, nor did the solicitors attend on the adjourned date even though they remain the solicitors on the record.  Accordingly, the Respondent submits that it has incurred the cost of attending court yesterday, including witness expenses and the costs further incurred in attending court today in order to deal with the question of discontinuance of the proceeding and the outstanding questions of its costs.  In all the circumstances, I am satisfied that the failure of the solicitors on the record to take appropriate steps to discontinue when instructed to do so and their gross discourtesy to this court and the Respondent in not attending court when notified to do so caused the adjournment of the hearing date and the further attendance at court.  (See Nicolson v Heaven & Earth Gallery Pty Ltd No N1127 of 1994 Chief Justice Wilcox unreported 20-9-94).  Accordingly I intend to make orders for costs against the solicitors for the Applicant as follows that:

1. The solicitor for the applicant, (Messrs Behan and Speed) pay the costs incurred by the respondent in attending court on 8 December 1994 and 9 December 1994;

2. Direct that the Registrar determine the amount of the costs in accordance with the procedure set out in Rule 42 Order 62 of the Federal Court Rules; and

3. Further order that there be liberty to the parties to apply on reasonable notice on the question of costs.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:               9 December 1994

Appearances:
Applicant:	Applicant in person
Respondent:	Counsel for Respondent
Date of Hearing:	9 December 1994
Date of Judgment:	9 December 1994