Anthony William Cowell v Irlmond Pty Ltd [1998] FCA 76 (12 February 1998)

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Costs in application for review of a decision of a Judicial Registrar - no point of principle

Workplace Relations Act 1996 - s 347

ANTHONY WILLIAM COWELL v IRLMOND PTY LTD

VI 1306 of 1996

MOORE J

SYDNEY (HEARD IN MELBOURNE)

12 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1306 of 1996

BETWEEN:	ANTHONY WILLIAM COWELL Applicant
AND:	IRLMOND PTY LTD Respondent
JUDGE:	MOORE J
DATE OF ORDER:	12 fEBRUARY 1998
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The applicant's application for costs is dismissed.

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	VI 1306 of 1996

BETWEEN:	ANTHONY WILLIAM COWELL Applicant
AND:	IRLMOND PTY LTD Respondent

JUDGE:	MOORE J
DATE:	12 February 1998
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

On 28 October 1997 I gave judgment dismissing an application for review which had been brought by Irlmond Pty Ltd ("Irlmond") under what was then s 377 of the Industrial Relations Act 1988 ("the Act"). Irlmond sought the review of a determination by a Judicial Registrar of an application under s 170EA of the Act. The Judicial Registrar had determined that the employment of Mr Anthony Cowell ("Cowell") had been terminated at the initiative of his employer, Irlmond, in contravention of provisions of the Act. Compensation was ordered. In the review the central issue was whether, as a mixed question of fact and law, Cowell's employment had been terminated at the initiative of Irlmond.

When I gave judgment in Sydney dismissing the application for review, I reserved on the question of costs. I did so because shortly before I gave judgment my chambers had been contacted by a Melbourne firm of solicitors acting for Cowell. They had been informed the day before that judgment was to be given. A request was made that the question of costs be reserved. The matter had been heard in Melbourne and had judgment been given in Melbourne, an opportunity would have arisen for an oral application to be made for costs. Given the circumstances in which I gave judgment there were some practical difficulties in such an application being made. I am prepared to proceed on the basis that an application has been made on behalf of Cowell for his costs in the review. This judgment deals with that matter.

It may be accepted that the application for a review is a proceeding for the purposes of s 347 of the Act: see Shackley v The Australian Croatian Club Ltd (1996) 141 ALR 736. However that section permits the Court to make an order for costs only if the application for review was instituted vexatiously or without reasonable cause. While it was not the subject of any specific submissions, s 170EHA may have provided a source of power to award costs but subject to the Court being satisfied that the institution of the review was an unreasonable act.

I turn to consider whether the application for review was instituted vexatiously or without reasonable cause. The appropriate principles were discussed by me in Shackley v The Australian Croatian Club Ltd (24 April 1997, Industrial Relations Court of Australia, Canberra, unreported). I do not repeat what I said in that judgment. In the present case, in my opinion, the application for review was not instituted vexatiously or without reasonable cause. It is true that the review was conducted by reference to the evidence called before the Judicial Registrar and the findings made by the Judicial Registrar. However the legal issue agitated by Irlmond in the review was, in my opinion, reasonably arguable. The facts, as they emerged, did not demonstrate conclusively that Cowell's employment had been terminated at the initiative of Irlmond. Indeed, it was arguable that it had not been. Moreover, passages in some of the authorities referred to in the review by counsel for Irlmond suggested that its case was strongly arguable. In those circumstances, the precondition imposed by s 347 on the exercise of the Court's powers to award costs has not been satisfied. For these reasons it also cannot be said that the institution and prosecution of the review was an unreasonable act for the purposes of s 170EHA.

I make no order as to costs.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 12 February 1998

Solicitors for the Applicant:	Coltmans Price Brent
Counsel for the Respondent:	Mr G D Cullen
Solicitors for the Respondent:	Jerrard & Stik
Written Submissions completed:	23 January 1998
Date of Judgment:	12 February 1998