Whitehead v The Uncle Tobys Co Ltd

[1997] IRCA 229

DECISION NO:229/97

CATCHWORDS

INDUSTRIAL LAW - COSTS - whether proceeding initiated vexatiously or without reasonable cause -

Conciliation and Arbitration Act 1904 s197A
Workplace Relations Act 1996 s347

Canceri v Taylor    (1994) 55 IR 316
Kanan v Australian Postal and Telecommunications Union     (1992) 43 IR 257

R v Moore : Ex-parte Federated Miscellaneous Workers’ Union of Australia

(1978) 140 CLR 470

WHITEHEAD -V- THE UNCLE TOBYS CO. LIMITED

VI 3858 of 1995

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          3 JULY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3858 of 1995

B E T W E E N:

Graeme WHITEHEAD
Applicant

AND

THE UNCLE TOBYS CO. LIMITED
Respondent

MINUTES OF ORDERS

3 JULY 1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The application for costs pursuant to Section 347 of the Workplace Relations Act, 1996, be dismissed.

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
VICTORIA DISTRICT REGISTRY

VI 3858 of 1995

B E T W E E N:

Graeme WHITEHEAD
Applicant

AND

THE UNCLE TOBYS CO. LIMITED
Respondent

REASONS FOR DECISION

3 JULY 1997  PARKINSON JR
This is an application for costs made by the respondents pursuant to Section 347 of the Workplace Relations Act 1996, (‘the Act’), in respect of proceedings initiated by the applicant pursuant to Division 3 Part IVA of the Act. The applicant alleged that the termination of his employment by the respondent contravened s170DE and s170DC of the Act. On 10 June, 1997, I issued a decision dismissing the s170EA application in all respects. The respondent submits that an order for costs ought lie o the grounds that the application was initiated vexatiously and without reasonable cause. The applicant opposes the application.

There is a large body of authority in relation to the interpretation of the words ‘instituted vexatiously or without reasonable cause’ in s347 of the Act and its predecessor, s197A of the Conciliation and Arbitration Act 1904.  Those principles are conveniently set out in the decision of Wilcox J, (as he then was), in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.
His Honour said (at 264):

“I do not doubt that, in instituting this proceeding, Mr. Kanan was motivated to obtain relief to which he considered himself entitled. There is no reason to believe that he was actuated by a vexatious desire to harass the respondent. To the extent that the word ‘vexatious’ imports considerations additional to the question whether there was a reasonable cause for the proceeding, I make no finding adverse to Mr. Kanan. But for the qualification of s347 to operate, it is sufficient that the proceeding be instituted ‘without reasonable cause’.  A proceeding is not to be classed as being launched ‘without reasonable cause’ simply because it fails.   ”

His Honour then cited with approval the decision of Gibbs J in R v Moore: Ex-parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 and said:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.  If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is appropriate to stigmatise the proceeding as being ‘without reasonable cause’.  But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” 

This decision in Kanan was cited with approval in this Court by Moore J in Canceri v Taylor (1994) 55 IR 316. In the present case, the outcome of the proceedings depended upon the findings of the Court as to various competing versions of events and interpretations of events between the parties. The parties were at odds as to the proper interpretation to be given to various actions as well as the accuracy of various aspects of the evidence. This is not a case where the parties were at one as to the facts, nor is it a case where there was a basis for asserting that having regard to the position as to the law it was apparent at the initiating of the proceeding, that the proceeding would fail or was likely to fail.
I am not satisfied that the application was lodged vexatiously or without reasonable cause and consequently there is no basis for an order for costs to be made. 

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

Associate      :          

Dated             :          3 July 1997

APPEARANCES
Solicitors for the applicant  :          Harris Lieberman Boyd
Solicitors for the respondent  :          Blake Dawson Waldron