Turner v Composite Buyers Limited
[1997] IRCA 9
•28 January 1997
DECISION NO:9/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT claim - COSTS - whether the respondent incurred costs because of an unreasonable omission on the part of the applicant in not attending Court on the return date and not notifying the respondent of her intention not to attend - notice of change of solicitor - application by applicant’s solicitor on record for leave to file notice of change of solicitor
Workplace Relations Act 1996 s 170EHA
Industrial Relations Court Rules O 45 r 7
RAELENE TURNER - v - COMPOSITE BUYERS LIMITED
No. VI 2096 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 28 January 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2096 of 1996
B E T W E E N :
RAELENE TURNER
Applicant
A N D
COMPOSITE BUYERS LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 28 January 1997
Upon hearing evidence from Mr Ashley Darren Winnett, article clerk, employed by solicitors, McDonald Murholme, and further upon hearing that on 22 November 1996 the solicitors on the record, McDonald Murholme, served on the applicant, Raelene Turner, notice of their intention to file and serve a notice of change of solicitor, THE COURT ORDERS THAT:
The solicitors, McDonald Murholme, have leave to file on or before 12 pm on 28 January 1997 a document entitled "Notice by Solicitor Ceasing to Act" dated 23 January 1997.
The costs of the solicitors, McDonald Murholme, in appearing on 28 January 1997 before the Court are reserved.
There be liberty to the solicitors, McDonald Murholme, and the applicant to apply to the Court on reasonable notice in respect to the preceding order.
AND upon hearing an application made to the Court by the respondent, there being no appearance for the applicant, THE COURT FURTHER ORDERS THAT:
Proceeding number VI 2096 of 1996 is struck out.
Within 21 days of the date of the making of these orders, the applicant pay to the respondent's solicitors, Messrs Dunhill Madden Butler of 575 Bourke Street, Melbourne, 3000, the respondent's costs fixed in the sum of $4869.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2096 of 1996
B E T W E E N :
RAELENE TURNER
Applicant
A N D
COMPOSITE BUYERS LIMITED
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 28 January 1997
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)
This matter was fixed for hearing by the Court on 28 January 1997. On that date the applicant's former solicitors, McDonald Murholme, attended Court seeking the leave of the Court to file a notice ceasing to act as the applicant's solicitors. Evidence was called which indicated that on 22 November 1996 the solicitors on the record, pursuant to order 45, rule 7, subrule 2 of the Industrial Relations Court Rules, gave the applicant notice of their intention to file and serve the notice of change they eventually took steps to file and serve on 23 January 1997 without an accompanying affidavit. Relying on the evidence given, orders were made granting the solicitors leave to file the document dated 23 January 1997 and entitled “Notice by Solicitor Ceasing to Act”.
The applicant was called outside the Court on 28 January 1997 but did not appear. The respondent, who was represented by counsel, Mr Bourke, sought and obtained an order striking out the principal proceeding. In addition, he sought an order for costs pursuant to section 170EHA of the Workplace Relations Act 1996. It was argued by the respondent that it had incurred costs because of the applicant's unreasonable omission in not notifying the respondent of her intention not to proceed with the application on the return date.
The Court heard evidence from Ms Sarah Marie Rey, the respondent's solicitor, relating to both her instructions and, in particular, the steps taken by her firm, Dunhill Madden Butler, since 9 January 1997 to ascertain whether the applicant intended to proceed with her unlawful termination claim.
By way of background, the Court was told that the termination involved the retrenchment of some 600 employees following a takeover of the respondent's business. More than 100 of these employees made application to the Australian Industrial Relations Commission and the dispute was resolved in July 1996 with the payment of additional sums to the employees, including an additional one month's pay to the applicant.
The applicant's unlawful termination claim was filed on 3 July 1996 along with nine other claims filed by other employees. Exhibit R1 contains a bundle of relevant correspondence which shows that the solicitors for the applicant and the nine other applicants took steps in September 1996 to discontinue nine of the applications but not the one filed by the applicant.
The correspondence produced to the Court indicates that from 9 January 1997 Ms Rey took numerous steps to try and ascertain whether the applicant intended to pursue her claim and these steps included notifying the solicitors on the record that the respondent would be seeking recovery of its costs as, in its view, “... this (the claim) is vexatious and lacking in substance.”
On 13 January 1997, Ms Rey received a telephone call from Mr Andrew O’Bryan, solicitor, indicating, amongst other things, that his firm, Galbally O’Bryan, then acted for the applicant. By a letter dated 16 January 1997, Ms Rey also notified Mr O’Bryan that her client would seek to recover its costs if Ms Rey was not notified by 1.00 pm on 17 January 1997 that the applicant, “... is discontinuing her claim”. Again, the letter relied on the premise that the claim was vexatious. This was not a premise argued before me and not one to which I have given any consideration.
On 22 January 1997, Ms Rey checked the Court record which then showed that McDonald Murholme were still the solicitors on the record. This prompted her to write to both that firm and Mr O’Bryan on this matter as well as renewing her notification to the solicitors on the record that she then had instructions to bring an application for costs on the basis that the claim was a vexatious one.
By a letter dated 23 January 1997, Ms Rey was provided with a copy of McDonald Murholme's notice of solicitor ceasing to act. It was also indicated in that letter that that firm of solicitors had not been able to obtain instructions from the applicant as to whether she required them to continue to act for her.
On 22 January 1997, Ms Rey was told by Mr O’Bryan that he was then preparing a brief in this matter, however, his client was interstate and not returning until the end of the week. He made it clear to Ms Rey that the applicant was aware of the forthcoming hearing date.
On 24 January 1997, Ms Rey tried unsuccessfully to communicate with Mr O’Bryan. On Sunday, 26 January 1997 and Monday, 27 January 1997, she attended her office and prepared a brief to counsel for this hearing. During Monday she was informed by Mr O’Bryan that he had no instructions to proceed and no intention of appearing or briefing for the hearing.
By the date of hearing, Ms Rey had briefed counsel and undertaken substantial preparation for hearing. A representative for the respondent from Sydney also attended Court on the return date and incurred travel expenses in the form of a return airfare of $474.
In considering whether the costs attendant on preparation of a brief for trial plus counsel's fees and client expenses were incurred because of an unreasonable omission of the applicant, I have taken into account the detailed history provided to the Court by Ms Rey. It is not necessary for me to consider the merits of the claim in order to determine that it was an unreasonable act or omission to fail to attend Court on the return date. On the evidence, it is clear that the applicant and her representatives, both on the Court record and off it, were on notice of a potential claim for costs. Insofar as that notice was given to the solicitor on the record, it is imputed to their client the applicant. It is also apparent that the applicant was aware of the hearing date and, despite this, failed to attend.
Accordingly, I find that the following costs were incurred by the respondent as a result of the applicant's breach of section 170EHA(1) of the Act:
Respondent solicitor's costs in the preparation
of a brief for hearing on 26 & 27 January 1997
at $240 per hour $2040.00
Respondent solicitor's costs for attending
hearing on 28 January 1997 for two hours at
$240 per hour 480.00
Disbursements
- counsel's fees 1875.00- airfare expenses incurred by
client representative 474.00
______ ______sub total 2349.00 2349.00
______
TOTAL $4869.00
MINUTES OF ORDERS
Upon hearing evidence from Mr Ashley Darren Winnett, article clerk, employed by solicitors, McDonald Murholme, and further upon hearing that on 22 November 1996 the solicitors on the record, McDonald Murholme, served on the applicant, Raelene Turner, notice of their intention to file and serve a notice of change of solicitor, THE COURT ORDERS THAT:
The solicitors, McDonald Murholme, have leave to file on or before 12 pm on 28 January 1997 a document entitled "Notice by Solicitor Ceasing to Act" dated 23 January 1997.
The costs of the solicitors, McDonald Murholme, in appearing on 28 January 1997 before the Court are reserved.
There be liberty to the solicitors, McDonald Murholme, and the applicant to apply to the Court on reasonable notice in respect to the reservation of the preceding order.
AND upon hearing an application made to the Court by the respondent, there being no appearance for the applicant, THE COURT FURTHER ORDERS THAT:
Proceeding number VI 2096 of 1996 is struck out.
Within 21 days of the date of the making of these orders, the applicant pay to the respondent's solicitors, Messrs Dunhill Madden Butler of 575 Bourke Street, Melbourne, 3000, the respondent's costs fixed in the sum of $4869.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 31 January 1997
No Appearance for the Applicant.
Former Solicitors for the Applicant: McDonald Murholme
Counsel for the Applicant’s Former Solicitors: Mr M. Goldblatt
Solicitors for the Respondent: Dunhill Madden Butler
Counsel for the Respondent: Mr J. Bourke
Date of hearing: 28 January 1997
Date of judgment: 28 January 1997
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