Treharne, Noel v George McEwin & Son Pty Ltd

[1983] FCA 66

Re: NOEL TREHARNE
And: GEORGE McEWIN & SON PTY. LIMITED
S.A. No. 1 of 1982
Industrial Law
4 IR 15

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - award breached - no penalty imposed - whether proceedings commenced "vexatiously or without reasonable cause" - whether costs order should be made.

Conciliation and Arbitration Act 1904 (C'th), ss.119 and 197A

HEARING

ADELAIDE

#DATE 26:4:1983

ORDER

The respondent's application for costs is refused.

JUDGE1

In this matter the applicant Noel Treharne, the Branch Secretary of the South Australian Branch of the Food Preservers' Union of Australia an organization registered under the Conciliation and Arbitration Act 1904 (the Act) sought the imposition of a penalty upon George McEwin & Son Pty. Limited (the respondent) under the provisions of s.119 of the Act for breaches of the provisions of the Food Preservers' Award 1973. There were none alleged breaches set out in the said application.

At the conclusion of the evidence called on behalf of the applicant the Court determined that the respondent had no case to answer in respect of seven of the breaches alleged but that a prima facie case had been made out in respect of two of the alleged breaches. The respondent called evidence in respect of those two alleged breaches. Having considered the matter the Court determined that the respondent had committed the two alleged breaches and at the request of the respondent adjourned the matter to give the respondent an opportunity to call evidence (if so advised) as to penalty and as to any further matters which it may wish to place before the Court (44 A.L.R. 543).

Subsequently evidence was called on behalf of the respondent. At the conclusion of that evidence and after hearing submissions by counsel for both parties the Court in all the circumstances determined that no penalty should be imposed.

The respondent then sought an order for costs, arguing that the proceeding had been commenced vexatiously or without reasonable cause.

Section 197A of the Act provides:

A party to -

(a) . . . . . . . . . . . . . .

(b) a proceeding, including an appeal, before the Court, or before a court of a State or Territory, in a matter arising under this Act; or

(c) . . . . . . . . . . . . . .

(i) . . . . . . .

(ii) . . . . . . shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

Owing to the Court's commitments the parties were requested to file written submissions in respect of the question whether the Court in the circumstances of the present case should make an order that the applicant pay the costs of the respondent.

The Court has considered the provisions of s.197A of the Act in Heidt -v- Chrysler Australia Limited (1976) 26 F.L.R. 271 and Naqvi -v- M.P.B. (S.A.) Pty. Limited (1981) 36 A.L.R. 379.

The respondent has claimed that the facts show that the proceedings herein were brought to achieve a purpose other than the enforcement of the particular award, namely to persuade or attempt to persuade the manager of the respondent company to use his best endeavours to influence the company's employees to join the particular organization and that the proceeding "was one that no sensible man would have brought".

As the Court has found that there were certain breaches of the relevant award it is clear in my view that the proceedings were not instituted "without reasonable cause". Further I am not satisfied that the real purpose that the applicant commenced the proceedings was solely to advance the interests of the organization which the applicant then represented as has been claimed by the respondent employer.

The Court has fully considered the written submissions. In the exercise of its discretion the Court is of the view that the respondent has failed to show that the applicant against whom the order for costs is asked instituted the proceedings vexatiously or without reasonable cause within the meaning of those terms as construed by the authorities referred to. Accordingly the respondent's application for costs is refused.