Williams, Hughie v Ward, Leonard Edward

[1984] FCA 299

Re: LEONARD EDWARD WARD; GREGORY JOHN RAY; LAWRENCE JOHN TURNER; BRIAN STUART
LEE; LESLIE RONALD LEE; ROY LESLIE LINCOLN; DONALD LYNALD BARDEN; RONALD JAMES
POTTER and JOHN CHARLES PENHALLURICK
And: HUGHIE WILLIAMS; ALLAN McPAUL; CLARENCE ROHWEDER; GREGORY NEWTON; HENRY
ASPLIN; STUART CROSBY; DAVID PEARCE; MERVYN KENDALL; PETER THOMSON and JOHN
HINSPETER
Q No. 3 of 1984

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Neaves J.

HEARING

CANBERRA

#DATE 26:9:1984

ORDER

The Court Orders That there be no order as to the costs of the proceedings.

JUDGE1

On 22 March 1984 the Court heard argument upon an application by Leonard Edward Ward, Gregory John Ray, Lawrence John Turner, Brian Stuart Lee, Leslie Ronald Lee, Roy Leslie Lincoln, Donald Lynald Barden, Ronald James Potter and John Charles Penhallurick ("the applicants") for a rule calling upon Hughie Williams, Allan McPaul, Clarence Rohweder, Gregory Newton, Henry Asplin, Stuart Crosby, David Pearce, Mervyn Kendall, Peter Thomson and John Hinspeter ("the respondents") to show cause why orders should not be made under section 141 of the Conciliation and Arbitration Act 1904 ("the Act") giving directions for the performance or observance by the respondents of certain rules of the Transport Workers' Union of Australia ("the Union") and for ancillary relief. The Court also heard argument in support of an application by the applicants for interim orders pending the determination of the issues between the parties.

On 28 March 1984 the Court ordered that a rule should issue and that, pending the hearing and determination of the matter or until further order, the respondents be restrained from giving effect to certain parts of a resolution of the Committee of Management of the Queensland Branch of the Union carried on 15 March 1984. The costs of the application were reserved.

The rule was subsequently amended to encompass certain resolutions of the Branch Committee of Management carried on 19 and 26 April 1984.

Argument on the substantive issues was heard on 26 and 27 April 1984 and 11 May 1984 when judgment was reserved. Judgment was delivered on 29 May 1984 when the Court discharged the rule to show cause and, at the request of the parties, reserved all questions of costs pending the hearing of further submissions thereon should the parties so desire.

On 6 August 1984 the Court heard submissions from the parties on the question of costs.

It is common ground that, if section 197A of the Act applies, the applicants, who were ultimately unsuccessful in the proceedings, may not be ordered to pay any costs incurred by the respondents to the proceedings as it is conceded that the proceedings were not instituted vexatiously or without reasonable cause. Counsel for the respondents submitted, however, that the applicants should be ordered to pay part of the respondents' costs being the costs of the hearing subsequent to 26 April 1984. No order was sought in respect of the costs of the application for interim relief or in respect of the hearing on 26 April 1984. The reason given for seeking only a limited order for costs was that the Branch Committee of Management, by a majority comprising eight of the nine respondents to the proceedings, had on 26 April 1984 passed a resolution substantially, though not wholly, displacing the resolution of 15 March 1984 upon which the order to show cause had been granted and that the argument was for the most part confined to a consideration of that later resolution.

For the respondents it was submitted that, for the reasons given by Northrop J. in Viner v. Australian Building Construction Employees and Builders' Labourers' Federation (1981) 38 A.L.R. 550 and Bourke v. Mapstone (unreported - 10 April 1984), section 197A had no application to proceedings brought in this Court under section 141 of the Act. It was submitted that, section 197A having no application, the respondents were entitled to an order for costs to the extent sought.

One of the grounds on which counsel for the applicants resisted the making of an order for costs was that section 197A of the Act, read with section 118A thereof, applies to these proceedings. To support that proposition counsel relied on the decision of Keely J. in Jones v. Thiess Bros. Pty. Ltd. (1977) 30 F.L.R. 422 and the decision and reasons of Ellicott J. in Stapleton v. African Lion Safari Pty. Ltd. (1982) 43 A.L.R. 385. Counsel for the applicants further submitted that, even if section 197A of the Act does not apply, the circumstances are such that no order for costs should be made.

Subsequently to the Court hearing the submissions of the parties on the question of costs a Full Court of this Court has had occasion to consider whether the power of the Court under section 43 of the Federal Court of Australia Act 1976 is subject to the provisions of section 197A. The Full Court, in a judgment delivered on 5 September 1984 in Brophy v. Mapstone (unreported) concluded that the power is so limited.

In the light of that decision and the concession made that the proceedings were not instituted vexatiously or without reasonable cause, the respondents are not entitled to an award of costs.