Wilkinson v Cleo's Unitisation Pty Limited

[1996] IRCA 344

DECISION NO:  344/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI  4924     of  1995

Between  CHERYL ANNE WILKINSON
Applicant

and      CLEO’S UNITISATION PTY LIMITED (A.C.N. 064 012 157)
Respondent

AND

NI  5002     of  1995

Between  HERBERT HENRY WILKINSON
Applicant

and      CLEO’S UNITISATION PTY LIMITED (A.C.N. 064 012 157)
Respondent

Coram:          Judicial Registrar Linkenbagh
Place:             Sydney
Date:              5 July 1996

REASONS FOR JUDGMENT

Delivered extempore and revised from the incomplete transcript

The order that I propose to make today is an order as is sought in the Notice of Motion that the applicant pay the respondent's costs in Section 170 EA proceedings commenced by the filing of a Form 132 in each file on 19 December 1995 and that the applicants pay the respondent’s costs of the Notice of Motion.  I envisage an order will be made in both the proceedings NI95/4924 and NI95/5002 and the order in each matter be one half of the total costs of the respondent in both proceedings. My reasons for making the order are as follows.

The Applications were filed by the Solicitors for the applicants and the respondent filed a Notice of Employer's Appearance on 28 December 1995.  The matters were referred to the Australian Industrial Relations Commission and a Conciliation Conference was held early in March of 1996.  The Court received a Certificate from Commissioner Redmond dated 13 March 1996.  The Court on 27 March notified the parties of Telephone Directions listed for 3 April 1996. 

The respondent then instructed solicitors and they filed a Notice of Appearance on 2 April 1996.  The matter came on for Telephone Directions on 3 April before Judicial Registrar Walker and solicitors appeared for all the parties.  The Court record for that day indicates that the argument was to be one of constructive dismissal, and that the two matters were to be heard together, and the applicants were directed to provide letters setting out the particulars of the claims.  Hearing dates for two days commencing on 26 June 1996 were fixed. 

The applicants have failed to comply the direction to provide particulars of the claims.  On 17 May the respondent’s solicitors wrote to the applicants’ solicitors reminding them of the direction and requesting that they provide particulars of claims including details of how the amounts claimed were calculated.  Apparently no response was received to that letter and on 5 June the respondent’s solicitors wrote again reminding the applicants’ solicitors that they had had no response to the previous letter and again requesting the necessary particulars and reminding them of the direction made by the Court on 3 April.  On 6 June there was a response from the applicants’ solicitors indicating that they were waiting on their barrister’s advice,which they expected to receive by 7 June.

On 14 June without further response to the respondent’s requests the applicants discontinued the proceedings pursuant to the provisions of Order 22 Rule 2A.  That Rule, which came into effect in January of 1996, does not require the consent of the respondent to the discontinuance of proceedings in the Court in respect of an unlawful termination claim.

Order 22 Rule 3(1) provides:

Notwithstanding the filing of a Notice of Discontinuance pursuant to Rule 2 application may be made to the Court on motion for an order for payment of costs.

Rule 3(2) empowers the Court to determine the application and, subject to Section 347 of the Act, make such Order as it considers appropriate.The provisions of Section 347 are that, in effect, the Court may not make an order for costs unless the Court is satisfied that the proceedings were instituted vexatiously or without reasonable cause.  The Court has said on many occasions that the relevant time for determining whether or not the proceedings were commenced vexatiously or without reasonable cause is at the time of filing of the originating process.  In this case that is the Form 132 which was filed on 19 December 1995.

The Court has also said that the test to be applied is an objective test and that the Court must, in determining whether or not a costs order is appropriate, look at whether the proceedings had any substantial prospect of success, or, whether there was an arguable case.  I must therefore look at the evidence that is before me as to what the applicants’ case was in each matter.  In that regard I have an affidavit of Mr Powell sworn on 25 June 1996.  In paragraph 3 of that affidavit Mr Powell reports a conversation with Mr Wilkinson where Mr Wilkinson said:

After we take our holidays in December we won't be back; we are giving four weeks' notice and we will be finishing on 17 December 1995.

Mr Powell provided a reference to Mr Wilkinson on 7 December 1995 which can only be described as reference in glowing terms.  The last paragraph of that reference is:

Harry leaves us of his own choosing and we wish him well in his future endeavours.

On 11 December the applicants were paid a sum of money which was expressed to be in full and final payment for services rendered and holiday pay and they were also provided with a chainsaw to the value of $600 as part of the arrangements on termination.

Counsel for the applicants today sought an adjournment for the purpose of putting further evidence before the Court.  That application was refused for the reason that the applicants have had notice of this Notice of Motion since 25 June 1996.  They had also been informed by the respondent’s solicitors in a letter of 17 June that the respondents intended to make an application for costs.  The respondent’s solicitors in that letter invited them to discuss costs to obviate the need for the filing of the Notice of Motion.  The applicants’ solicitors’ letter of 19 June does not engage in what might be termed meaningful discussion in response to that letter and left the respondent’s solicitors in the position where they were obliged to file the Notice of Motion to force the issue as to costs.

In the letter of 19 June 1996 enclosing the Notice of Discontinuance the applicants’ solicitors indicate that they have instructions to initiate proceedings under Section 275 of the New South Wales Industrial Relations Act, 1991. 

I have not heard the matter on its merits. Counsel for the applicants submitted that with the evidence as it stands I cannot decide the matters to which Section 347 directs my attention and that the onus rests on the respondent to satisfy me as to those matters.  The discretion to awards costs is broad and argument as to where the onus of proof lies is of little assistance. The Court may look at all the material the parties have brought before it and also consider the conduct of the parties in preparing the matters for trial.  The applicants chose not to comply with the Directions of 3 April and have failed to address the serious nature of the actions they have commenced, and the consequences which inevitably flowed to the respondent in preparing the matters for trial.  The documentation produced by and given to the applicants at the time of termination raises on its face a clear indication that the employment was not terminated at the initiative of the employer. The applicants were advised by solicitors from the outset and there is no doubt in my mind that the reality of the obvious difficulties with the prospects of success of the applications which existed at the time of filing of the applications were not addressed before the advice of Counsel was sought in June, well after the commencement of the proceedings and the time for compliance with the 3 April Directions.  By June the respondent had made efforts to have the applicants address the issues and had incurred considerable expense not just in money terms but in time and inconvenience. I have no doubt that the proceedings were commenced without reasonable cause within the meaning of Section 347 of the Act.

Order 62 Rule 1 provides that the Court may elect to nominate a scale by which costs are to be calculated, specify an amount of the costs, or direct the Registrar to determine the amount of the costs pursuant to Order 62 Rule 42 of the Federal Court Rules. The respondent gave me some details of its costs and seeks a total of $3,200 for both matters, which is a relatively small sum. I rely on my experience in this Court and in practice as a Solicitor in my view that that sum can only be seen as very reasonable in the circumstances of this case. I do not propose to put the respondent to further costs and delay in engaging in a process to determine an amount for the costs and I propose to order that sum pursuant to Order 62 Rule 1 (b) with half payable by each applicant. The sum of $1600.00 shall be paid by each applicant within one month.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Renee Cauchi
Associate
Date:   31 July 1995
Counsel for the Applicants:               Mr. N. Potts
Solicitors for the Applicants:             Walters Solicitors

Solicitor for the Respondent:         Mr. G. Newton
  Webeck Farland Pender

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - COSTS - FIXED SUM AWARDED

Industrial Relations Act 1988, Ss 170EA 347
Industrial Relations Court Rules Order 22 Rules 2A and 3   Order 62 Rule 1

Industrial Relations Act (N.S.W.) S.275

CHERYL ANNE WILKINSON v. CLEO’S UNITISATION PTY. LIMITED (A.C.N. 064 012 157)
NO. NI  4924 of 1995

AND
HERBERT HENRY WILKINSON V. CLEO’S UNITISATION PTY. LIMITED(A.C.N. 064 012 157)
NO. NI 5002 of 1995

CORAM:      LINKENBAGH J.R.
PLACE:        SYDNEY
DATE:           5 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI  5002     of  1995

Between  HERBERT HENRY WILKINSON
Applicant

and      CLEO’S UNITISATION PTY LIMITED (A.C.N. 064 012 157)
Respondent

Coram:          Judicial Registrar Linkenbagh
Place:             Sydney
Date:              5 July 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The applicant pay the costs of the respondent in the sum of One Thousand Six Hundred Dollars ($1,600.00) within one month

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI  4924     of  1995

Between  CHERYL ANNE WILKINSON
Applicant

and      CLEO’S UNITISATION PTY LIMITED (A.C.N. 064 012 157)
Respondent

Coram:          Judicial Registrar Linkenbagh
Place:             Sydney
Date:              5 July 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The applicant pay the costs of the respondent in the sum of One Thousand Six Hundred Dollars ($1,600.00) within one month

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules