Vandyk v Classic Dove Pty Ltd

[1996] IRCA 460

DECISION NO: 460/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1046 of 1996

B E T W E E N:

Joanne Elizabeth VANDYK
Applicant

A N D

CLASSIC DOVE PTY LTD
Respondent

REASONS FOR DECISION

16  September  1996  PARKINSON JR

This is my decision in relation to an application for costs by the respondent in these proceedings. On 9 August, 1996 I delivered Judgment dismissing the Section 170EA application for want of jurisdiction. I am satisfied on the basis of my finding of facts as to the circumstances leading to the termination of the employment, that the proceeding was issued without reasonable cause in the sense discussed in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.

I make this finding because I am satisfied that the applicant’s own version of events in this proceeding would at the time of initiating the proceedings inevitably have lead to the conclusion that the Court was by reference to its jurisdiction precluded from hearing the application and further that there was no merit in the application.  This is not a case where it was necessary for the Court to determine the proceedings by making any findings that it preferred one parties evidence to another.  Further it was not necessary for the Court to make a finding as to the application of a particular stream of legal learning or analysis of legal authority for the purpose of deciding any jurisdiction or legal issue in the proceeding.  In view of the above matters I propose to consider the question as to whether I ought exercise power to Order costs.

I have considered the submissions in writing of the parties in addition to the oral submissions made at Judgment.  The written submissions make reference to the illness of the applicant and her circumstances.  These matters were considered in the course of the Judgment delivered on 9 August, 1996 and I have taken them into account.  No other matters were raised as relevant to consideration in the exercise of discretion.  The respondent raises the communications between the parties shortly after the initiating of the proceedings, including the offers made to the applicant.

I have decided that it is appropriate to exercise my discretion to order reasonable costs and pursuant to Order 62 Rule 1(b), to set a fixed sum in costs in this proceeding.  The respondent has sought a sum in costs but the basis for the amount has not been satisfactorily established in the written submissions.  I informed the parties that were I to make an Order for costs it would be made in a fixed sum.

In the circumstances I am not satisfied that the conduct of the case required the incurring of costs at the level sought to be recovered by the respondent. I have taken into account that the parties in proceedings pursuant to s170EA are entitled to appear on their own behalf or through an officer of the respondent. This fact together with the nature of these proceedings, in that there are not as a usual course formal pleadings or the other usual expenses associated with litigation, leads me to conclude that an Order for costs in the proceedings ought not as a matter of course contemplate those matters contained in the scale of the applicable rules of the Court. If an Order for costs on scale were to be made by me it would be necessary for the parties to address me in relation to each item sought.

Whilst no such submission was made, I appreciate from the evidence in the substantive proceedings that any Order for costs against the applicant will be harsh in its impact upon her.  However, I am not able to be satisfied that this fact of itself affords a basis for refusing to exercise the discretion as to costs in circumstances such as these.  I am satisfied that a reasonable sum in view of the nature and circumstances of this proceeding and also having regard to the applicant’s circumstances is $1,000.00.  That is the sum I fix in costs pursuant to Rule 1(b) of Order 62.  Time to pay is 120 days.

I certify that this and the preceding two (2) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:     Paul Ferguson
Dated: 16 September 1996

APPEARANCES

Counsel appearing for the applicant           :          Ms. G.Capasso
Solicitors for the applicant  :          McDonald & Charman

Counsel appearing for the respondent        :          Mr. T. Hurley
Solicitors for the respondent  :          MacPherson & Kelley

Date of hearing  :          9  August  1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1046 of 1996

B E T W E E N:

Joanne Elizabeth VANDYK
Applicant

A N D

CLASSIC DOVE PTY LTD
Respondent

MINUTES OF ORDERS

16  September  1996  PARKINSON JR

THE COURT ORDERS THAT:

1. Pursuant to Order 62 Rule 1(b) of the Industrial Relations Court Rules, the Applicant pay to the Respondent costs in the sum of $1000.00

1. Payment be made within 120 days.

NOTE:   Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
COSTS -

Industrial Relations Act 1988, S170EA,
Industrial Relations Court Rules   Order 62 Rule 1(b)

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.

VANDYK v CLASSIC DOVE PTY LTD
VI 1046 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  16  September  1996