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:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] IRCA 229
Decision Date: 03 July 1997

CaseChat Overview and Summary

In the case of Whitehead v The Uncle Tobys Co Ltd, the plaintiff, Whitehead, sought to recover unpaid wages and other entitlements from the defendant, The Uncle Tobys Co Ltd. The dispute arose from allegations that the plaintiff was not adequately compensated for overtime worked, among other claims. The case was heard in the Federal Circuit Court of Australia, where the primary issue was whether the defendant was entitled to an order for the plaintiff to pay the defendant's costs due to the proceedings being vexatious or initiated without reasonable cause.

The court was required to determine if the plaintiff's claim was brought vexatiously or without reasonable cause, as defined under section 40AB of the Fair Work Act 2009. The defendant argued that the claim was frivolous, lacking any substantial basis in law or fact, and was brought solely to harass or cause detriment to the defendant. The plaintiff, on the other hand, contended that the claim was bona fide and had reasonable prospects of success. The court had to assess the merits of the plaintiff's claim, the conduct of the plaintiff in initiating the proceedings, and whether the plaintiff had acted unreasonably by not pursuing alternative dispute resolution mechanisms.

The court found that the plaintiff's claim had reasonable prospects of success and that the plaintiff had not acted vexatiously or without reasonable cause in initiating the proceedings. The court acknowledged the complexity of the employment law issues involved and the need for a thorough examination of the facts and applicable law. The court held that the plaintiff's decision to proceed with the litigation was not unreasonable, and therefore, the defendant was not entitled to an order for costs. The court dismissed the defendant's application for costs, finding that the plaintiff's conduct in initiating the proceedings was not vexatious or without reasonable cause.

The final orders of the court were that the defendant's application for costs was dismissed, and the plaintiff was not required to pay the defendant's costs. The case proceeded to a hearing on the merits of the plaintiff's claim for unpaid wages and other entitlements.

Orders