Baker v University of Ballarat [2006] FCAFC 47 (19 April 2006)

Last Updated: 19 April 2006

FEDERAL COURT OF AUSTRALIA

Baker v University of Ballarat [2006] FCAFC 47

CLIFTON SYDNEY BAKER v UNIVERSITY OF BALLARAT

VID 166 of 2005



RYAN, MARSHALL and FINKELSTEIN JJ
19 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent
JUDGES:	RYAN, MARSHALL and FINKELSTEIN JJ
DATE OF ORDER:	19 APRIL 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appellant pay the respondent’s costs of the application, including its costs of the appeal, and the written submissions respectively dated 16 February 2006 and 2 March 2006.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent

JUDGES:	RYAN, MARSHALL and FINKELSTEIN JJ
DATE:	19 APRIL 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 On 4 October 2005 the Court dismissed Mr Baker’s appeal from the orders made by Sundberg J on 15 February 2005. These reasons should be read together with the reasons for judgment in the substantive appeal, Baker v University of Ballarat [2005] FCAFC 210. In that judgment paragraph 4 of the orders made by the Court was in these terms:

‘The appellant pay the respondent’s costs of the application, including the costs of the appeal, such costs to be taxed in default of agreement.’

2 That order was subsequently set aside to enable the parties to make written submissions as to costs. Mr Baker contended that s 347(1) of the Workplace Relations Act 1996 (Cth) ("the Act") applied to his present application at first instance and to the appeal. Consequently, Mr Baker submitted that he should not have been ordered to pay costs.

3 Section 347(1) of the Act provided that;

‘A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.’

4 The appellant’s application to the Court in its original jurisdiction sought relief under various heads, including breach of the University of Ballarat Enterprise Agreement 2000-2003 ("the Certified Agreement"). However, he did not, in terms, couch his application as one made under s 178 of the Act for a penalty for a breach of a certified agreement. In fact, he sought no orders under the Act but, rather, an injunction, prohibition, certiorari and damages. His reliance on the alleged breach of the Certified Agreement appears to have been on the basis that the Agreement had been incorporated as an express term of his contract of employment. The claim advanced before Sundberg J was effectively one for specific performance of Mr Baker’s contract of employment, relying (in part) upon the University’s alleged breach of a certified agreement which governed that employment.

5 In light of the above matters, we do not consider that Mr Baker’s claim before Sundberg J or the appeal from his Honour’s orders can be said to have given rise to "a matter arising under this Act within the meaning of s 347(1)". The duty or right sought to be enforced arose under the contract pleaded as existing between Mr Baker and the University and was not solely or predominantly one imposed or conferred by the Certified Agreement. This is borne out by the fact that Mr Baker did not apply for the imposition of a penalty under s 178 of the Act; cp Bostik (Australia) Pty Ltd v Gorgevski (No 2) 36 FCR 439 where there was an express claim for imposition of a penalty under s 178 which succeeded.

6 The University has now taken the opportunity afforded by the setting aside of the costs order of 4 October 2005 to seek an order for indemnity costs. In our opinion, such an order is inappropriate in the circumstances of this case, particularly when there has been a division of opinion on the Full Court as to whether the appeal should succeed.

7 Accordingly, we would not make any different order as to costs from that contained in paragraph 4 of the orders of 4 October 2005. There will therefore be an order to that effect, including an order that the appellant pay the University’s costs of the written submissions respectively dated 16 February 2006 and 2 March 2006.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:



Dated: 19^th April 2006

	The appellant appeared in person
Counsel for the Respondent:	Mr M G Rinaldi
Solicitor for the Respondent:	Australian Higher Education Industrial Association
Date of Hearing:	14 April 2005
Date of Substantive Appeal Judgment:	4 October 2005
Written Submissions on Costs:	16 February and 2 March 2006
Date of Costs Judgment:	19th April 2006.