Peter Harper MacDonald v the Queensland Justices & Community Legal Officers Association (Inc) [1998] FCA 279 (27 March 1998)

Last Updated: 2 April 1998

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL RELATIONS - Costs - accrued jurisdiction - whether jurisdiction to make costs order for claim in accrued jurisdiction where no costs order made in relation to unlawful termination claim.

Workplace Relations Act 1996 (Cth) s 170EHA(1), s 347(1)

Canceri v Taylor (1994) 123 ALR 667 - Cited

Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 - Appl

Association of Professional Engineers Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418 - Cited

Keating v Texco Investments Pty Ltd (1994) 57 IR 339 - Cited

Byrne v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300 - Appl

PETER HARPER MACDONALD v THE QUEENSLAND JUSTICES &

COMMUNITY LEGAL OFFICERS ASSOCIATION (INC)

QI 1134 of 1996

Cooper J

Brisbane

27 March 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1134 of 1996

BETWEEN:	peter harper macdonald Applicant
AND:	the queensland justices & community legal officers association (inc) Respondent
JUDGE:	COOPER J
DATE OF ORDER:	27 MARCH 1998
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The order made by Judicial Registrar Boulton on 18 September 1997 against the applicant awarding costs in favour of the respondent in the sum of $2,000 be set aside.

2. There be no order as to costs in respect of each of the notices of motion filed on 30 September 1997.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1134 of 1996

BETWEEN:	peter harper macdonald Applicant
AND:	the queensland justices & community legal officers association (inc) Respondent

JUDGE:	COOPER J
DATE:	27 MARCH 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

On 30 June 1997, Boulton JR dismissed an application by the applicant seeking relief for the allegedly unlawful termination of his employment as general manager of the respondent. The applicant's claim in the associated jurisdiction of the Industrial Relations Court of Australia for holiday pay said to be due and unpaid was also dismissed. Boulton JR reserved the question of costs.

The respondent made an application for its costs and filed material in support of that application, relying upon s 347(1) and s 170EHA(1) of the Workplace Relations Act 1996 (Cth) ("the Act"). Boulton JR heard that application on 28 August 1997 and, on 18 September 1997, published reasons rejecting the application for costs insofar as it relied upon s 347(1) and s 170EHA(1). In relation to the applicant's claim in the associated jurisdiction of the Court, Boulton JR said :-

"The applicant failed in a claim for holiday pay allegedly due to him and unpaid by the respondent. I can see no reason why costs should not follow the event in respect of this claim. I fix the respondent's costs, including its application for costs in this regard, in the sum of Two Thousand Dollars ($2,000)".

The applicant was ordered to pay those costs within twenty-one days of Boulton JR's order.

The applicant filed two notices of motion on 30 September 1997. The first sought review of Boulton JR's decision of 18 September 1997. The second sought review of Boulton JR's decision of 30 June 1997 and an extension of time within which to bring the application for review.

When the notices of motion came on for hearing on 31 October 1997, the applicant sought and was granted leave to withdraw the application to extend time. I dismissed the notice of motion for review of the 30 June 1997 decision and reserved the question of the costs of it.

The Court's power to make a costs order, established in Canceri v Taylor (1994) 123 ALR 667, may be exercised on an application for review of a decision of a judicial registrar: Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736. I am not satisfied that the notice of motion seeking review of the decision of 30 June 1997 was brought vexatiously or without reasonable cause. The applicant gave cogent reasons for the late withdrawal of it, which I accept. There will be no order for costs in relation the applicant's second notice of motion.

The applicant's notice of motion for review of Boulton JR's decision of 18 September 1997 remains for determination. Review of a decision of a judicial registrar is by way of hearing de novo: Association of Professional Engineers Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418; Keating v Texco Investments Pty Ltd (1994) 57 IR 339 at 340).

The respondent did not seek review of the decision by Boulton JR not to award costs in its favour against the applicant under s 347(1) and s 170EHA(1) of the Act in respect of the failed claim for wrongful dismissal. The only question is therefore whether there is power to award costs in the accrued jurisdiction of the Court so as to avoid the operation of s 347(1) and s 170EHA(1) of the Act.

In Byrne v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300, a Full Court (Black CJ, Keely, Beaumont, Gray and Heerey JJ) held that a claim by the appellants for damages for breach of a provision of an award was a matter arising under s 347(1) of the Industrial Relations Act 1988 (Cth) (now s 347(1) of the Act) and was not to be treated as a separate matter. The Court dismissed a cross-appeal by the respondent against a refusal by the primary judge to make any costs order in its favour. Beaumont and Heerey JJ, with whom Keely J agreed on this point, said (at 351) :-

"However, in respect of the unsuccessful claims for damages made under the general law in the exercise of the Court's accrued jurisdiction, the respondent contends that s 347(1) is not applicable because, it says, a general law claim is, in truth, a separate matter, and does not `arise under' the Act; then the respondent says that the ordinary rule, that costs follow the event, should be applied.

A similar argument to that now advanced by the respondent was rejected by a Full Court (Sheppard, Gray and Heerey JJ) in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439. In our opinion, the reasoning of Sheppard J (with whom Heerey J agreed) and of Gray J there was, with respect, correct. Since the appeal has been partly successful, it could not be said that either the institution of the proceedings at first instance or the appeal was brought `vexatiously or without reasonable cause'. It must follow that the cross-appeal should be dismissed."

To similar effect, Gray J, with whom Black CJ agreed on this point, said (at 367 - 368) :-

"The respondent's cross-appeal on the question of costs must fail. The law on this issue has been laid down clearly by the Full Court in Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 and Thompson v Hodder [1989] FCA 493; (1989) 21 FCR 467, both of which were cited with apparent approval by the High Court of Australia in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31; (1991) 173 CLR 78 at 93, and in my judgment in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445 - 446. The `matter' in contention in the present case is the purported dismissals of the appellants and the legal consequences of those purported dismissals. That `matter' arises under the Act by reason of the reliance of the appellants on cl 11(a) of the award, which was made under the Act, and their invocation of the jurisdiction given by s 178 of the Act. Each application dealt with by Hill J was therefore a proceeding `in a matter' arising under the Act. Severance of different causes of action in the one proceeding is not possible for the purposes of s 347 of the Act. Nor is it legitimate to attempt to characterise a proceeding by reference to its predominant element . ..."

The Full Court's decision is directly applicable to the instant case and requires that the orders made by Boulton JR on 18 September 1997 be set aside. It is not open to make an order for costs in relation to the claim in the associated jurisdiction by treating that claim as separate from the unlawful termination claim and, therefore, as not subject to the restrictions imposed by s 347(1).

No basis has been shown for an award of costs under s 347(1) and s 170EHA(1) of the Act. Therefore, there is no jurisdiction or occasion to make any order for costs of the proceedings or so much of the proceedings as related to the claim for holiday pay before Boulton JR.

There will be no order for costs on the applicant's first notice of motion seeking review of the Judicial Registrar's decision of 18 September 1997 in relation to costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:

Dated: 27 March 1998

Applicant in person:	Peter Harper MacDonald
Counsel for the Respondent:	J Murdoch
Solicitor for the Respondent:	Lippiatt & Co
Date of Hearing:	31 October 1997
Date of Judgment:	27 March 1998