Birrell v Australian National Airlines

REASONS FOR JUDGMENT These matters are applications for reviews of the exercise of power by a Judicial Registrar pursuant to s 377 of the Workplace Relations Act 1996 ("the Act"). The applicants, Mr and Mrs Cameron, lodged applications with the Australian Industrial Relations Commission ("the Commission") on 26 February 1996 in which they alleged that their employment had been unlawfully terminated by the respondent, Warakurna Community Inc. ("Warakurna"). On 1 May 1996 Commissioner Eames certified that the Commission had been unable to settle the matters by conciliation and that the parties had not elected to have the Commission arbitrate the matters. The proceedings were heard by Judicial Registrar Ritter on 4, 5 and 6 November and 10 December 1996 in Alice Springs. Reasons for judgment were delivered and orders made on 8 April 1997. In Mr Cameron's matter the Judicial Registrar dismissed the application. In Mrs Cameron's matter the Judicial Registrar declared that Mrs Cameron's employment was terminated by Warakurna in breach of s 170DE of the Act. He ordered that Mrs Cameron be paid the sum of $3,250 less income tax payable thereon. On 15 April 1997, Mr and Mrs Cameron applied to review the exercise of power by Judicial Registrar Ritter. On 27 May 1997, the Judicial Registrar delivered an additional judgment in which he rejected an application by Warakurna for costs against Mr and Mrs Cameron's legal representatives due to the proceedings being adjourned on 6 November 1996 causing a resumption on 10 December 1996 in Alice Springs. On 13 June 1996 Warakurna applied for a review of the exercise of power of the Judicial Registrar on the costs issue. Evidence in the reviews was received by the Court in Alice Springs on 8, 9, 10 and 11 September 1997. Further evidence was adduced on 10 November 1997 when the Court sat in Melbourne. The witnesses were in Alice Springs and were heard via video link. Earlier today (14 November 1997) the Court heard the final addresses of the parties. The evidence before the Court consists of the transcript of evidence and the exhibits before the Judicial Registrar as well as the further evidence adduced on the review. BACKGROUND FACTS Warakurna is an aboriginal community located in Western Australia not far from the Northern Territory border and some 800 kilometres from Alice Springs. It is an incorporated association pursuant to the Associations Incorporation Act 1895 (WA). According to cl 2(f) of its Constitution, Warakurna consists of "the group of aboriginals who for the time being are members of the Association". Clause 5 of the Constitution provides that: "The members of the Association shall be those aboriginals who either derive descendance from the original inhabitants of Giles or adjacent areas and either expressly or by implication subscribe to the tenor of this Constitution or who reside at Giles and elect to abide by the conforms and sanctions of the Community." Clause 3 of the Constitution sets out the objects of Warakurna. It provides as follows: "OBJECTS: 3. The objects for which the Association is formed are:- (a) to promote the overall community development of the Community. (b) to achieve the self support of the Community by the development of economic projects and industries. (c) to promote adequate education, vocational training, health and welfare services, employment and housing for the Community. (d) to assist and encourage the Community to develop an effective system of self government upon its own lands. (e) to assist and encourage the individual members of the Community to preserve and develop a satisfying sense of community identity. (f) to foster mutual trust and friendly relationships between the Community and the community at large, ..." According to the Constitution, Warakurna is governed by a Council consisting of community members who are appointed as such by "consensus decision". There is no upper limit on the number of Councillors but a quorum of five is required for Council meetings. The Council appoints from amongst its members a Chairman who presides at the Council meetings. The management and conduct of the affairs of Warakurna vests in the Council. The Council is required by the Constitution to consult with members of the community "on all matters of importance". As the Judicial Registrar noted: "The respondent is one of eleven remote communities with the common language called 'Ngaanyutjarra' who have together ... formed a resource agency and an advocacy service dealing with regional matters. The resource agency and advocacy service is known as the Ngaanyutjarra Council (Aboriginal Corporation)." Ian Cameron was employed by Warakurna as its Community Development Advisor ("CDA") (also known as the Community Services Officer) on 18 February 1991. He was initially employed pursuant to a written contract of employment which was expressed to apply for two years but was subject to extension by agreement. At the expiry of the two year period Mr Cameron's employment continued. It was the duty of the CDA to assist the Council in its management and control of the community. Clause 1 of item 4 of the Schedule to the written contract ("the Schedule") provided inter alia that: "Whilst the Community Services Officer shall have wide administrative powers, the exercise of those powers will be done in full recognition that it is the Community through the Governing Committee of the Employer which is responsible for making decisions in relation to all aspects of Community life and that the Community Services Officer must act in accordance with the directions of the Employer and of N.C." (underlining was supplied in the original document) The N.C. referred to is "Ngaanyutjarra Council". The term "Community Services Officer" is used interchangeably with CDA. Clause 2 of item 4 of the Schedule listed the administrative duties of the CDA. Those duties included the duty to: "... hire and dismiss (Community) staff in consultation with (Council) and where appropriate with the manager of the particular area in which the staff member is employed." Annette Cameron is the spouse of Mr Cameron. She also commenced employment with Warakurna in February 1991. Her initial employment was as the store manager, a position which she held for three years. In February 1994 Mrs Cameron became the Community book-keeper and women's project officer. By letter dated 29 November 1995 Mrs Cameron tendered her resignation to the Chairman of Warakurna, Mr Gary Stephens. Mrs Cameron's resignation never took effect. The only change to her duties that resulted from her actions was that for a period of approximately one week she performed no book-keeping duties at the Community office. Mrs Cameron's employment was terminated in February 1996 at the same time that Mr Cameron's employment was terminated and directly as a result of the termination of her husband's employment. Mr Cameron's employment was terminated at a meeting of the Warakurna Community held on Friday 9 February 1996. Shortly before the meeting, Mr Lewis, a member of the Community, attended at the Community office and asked Mr Cameron to come to the meeting. Prior to speaking to Mr Lewis , Mr Cameron was unaware that the meeting was to take place. After the meeting commenced it soon became apparent that the thirty to fifty members of the Community there present were concerned about the recent resignation of the store manager, Mr Hales, and wanted Mr Cameron's explanation of Mr Hales' resignation and his role in the events that led to it. Mr Hales had resigned his employment earlier that week as a result of a combination of circumstances commencing with the fact that by letter dated 15 January 1996, Mr Cameron purported to unilaterally extend Mr Hales' three month probation period. At the time Mr Hales received the letter the expiration of his probation period was imminent. During the Community meeting on 9 February 1996 mention was made of a letter dated 30 June 1994 which Mr Cameron had received from Warakurna regarding complaints about his lack of consultation with the Council. In that letter Mr Cameron was given the following directions: "(i) Make sure that the Warakurna Council is consulted on any staff hiring or firing matters. You are not to hire or fire staff, that is a matter for the Council. (ii) If there are problems that you see with the Store, Project Officers, teachers, nursing staff or any other employees you must raise them with the Council before you take any action or speak with the people concerned. The Community is very worried about the recent high staff turnover and wants it to stop. (iii) On any funding matters or decisions to be made about the Community you must speak to the Council and take its direction in your work." (underlining was supplied in the original document) It became apparent to Mr Cameron during the course of the meeting that his employment was in jeopardy. Mr Stern, Warakurna's dentist, took the minutes of the meeting He also testified before the Judicial Registrar of complaints raised with him by members of the Community in the week prior to the meeting. The complaints raised related to the following matters: · Mr Cameron's irregular office hours; · Mr Hales' resignation; and · Mr Cameron's failure to consult the Council. Ms Schultz, a registered nurse employed by Warakurna, gave evidence before the Judicial Registrar. She testified that Mr Stern's minutes reflected what happened at the meeting. She also gave evidence that the "Community dislikes change of staff and they did not want the Hales to go" and that there was Community concern about their lack of involvement in decision making. The minutes of the meeting commence with an explanation by Mr Cameron of the circumstances of Mr Hales' resignation. Mr Hales then came to the meeting and expressed unhappiness about the 15 January 1996 letter given to him by Mr Cameron. The incident which triggered the resignation related to the state of the goods which arrived on a truck on the Wednesday before the meeting. The minutes disclosed Mr Hales saying to the following effect about that matter: "MIKE: It was very hard ... with no regular staff and when the truck came on Wednesday with the damaged goods this was the last straw. He said that he told Ian on Wednesday afternoon that he will resign in 1 month and that he wasn't happy about the letter they recieived [sic] when they returned from their break... On Thursday morning Ian came and told them to finish on this Saturday. Now they've spoken to the other communities to look for another job, but maybe not Warakurna." The letter of 30 June 1994 which imposed a consultative role on Mr Cameron in employment matters was then read to the meeting. The minutes then disclose some discussion about that letter followed by some comments by Mr Stern to the effect that Mr Hales may be asked to stay if the Camerons go. Mr Cameron is then recorded as saying as follows: "IAN: said that they will do what the meeting decides and it is allright [sic] either way." In his evidence before the Judicial Registrar Mr Cameron said that he made the following statement: "I'm not concerned which way this meeting goes." The note in the minutes regarding Mr Cameron's attitude to the result of the meeting, is followed by the Chairman, Mr Ivan Shepherd saying "thankyou [sic] we want you to go." Mr Cameron testified that he then telephoned Mr Peter Rapkins, the Co-ordinator of the Ngaanyutjarra Council and said to Mr Rapkins that: "I've been sacked but I don't know the reason." There was a further meeting with the Community on Monday 12 February 1996. This second meeting essentially involved a reconsideration by Warakurna of its decision to terminate the employment of Mr Cameron. Such was Mr Cameron's entitlement pursuant to his written contract of employment This meeting provided Mr Cameron with an opportunity to have his termination rescinded. The minutes of the meeting were taken by Mr Kevin Black, an independent person, who was not a member of the Community. The minutes disclose that the Community was concerned about Mr Cameron's role in Mr Hales' resignation, Mr Cameron's failure to consult the Council of the Community and the lack of access to the Community office because of Mr Cameron's irregular hours. The Community confirmed its previous decision to terminate Mr Cameron's employment. Mr Cameron testified before the Judicial Registrar that he didn't understand the reason he had to go and all he knew was that there was some complaint concerning the store manager, Mr Hales. It is difficult to reconcile that evidence with what the minutes of the meetings of 9 and 12 February 1996 disclose. It must have been clear to Mr Cameron that the Community was concerned at his actions concerning Mr Hales and his lack of consultation with them concerning Mr Hales' changed employment conditions. Mr Cameron claimed that he had authority from two members of the Community to act as he did with respect to Mr Hales. He claimed authority from Mr Gary Stephens who was at all material times the Chairman of Warakurna. Mr Stephens denied that he gave Mr Cameron the right to deal with all matters concerning white employees at Warakurna. I accept that evidence. Mr Stephens testified that Mr Cameron sometimes consulted him about employment matters and sometimes did not. Mr Cameron's second source of authority was said to be Mr Bernard Newberry. Although an important person in the Community Mr Newberry was at no stage a member of the Council or Executive of Warakurna. Mr Newberry's evidence was to the effect that he at no time gave Mr Cameron the power to do anything which would undermine the power of the Community. Mr Newberry did on one occasion advise Mr Cameron to sort out in-fighting between white staff at the Community. However, I accept Mr Newberry's evidence that he did not say to Mr Cameron that Mr Cameron had authority to hire or fire staff. Mr Newberry, in any event, did not have authority to give any such instructions not being a member of the Warakurna Council. MRS CAMERON : WAS THERE A TERMINATION AT THE INITIATIVE OF WARAKURNA? In my view there was a termination by Warakurna, at its initiative, of the employment of Mrs Cameron. Although Mrs Cameron resigned with effect from 1 January 1996, she continued to perform work for Warakurna after that day. The only change in her work was that for one week after 1 January 1996 she did not perform work at the Community office but did so elsewhere in the Community. The better view is that there was a withdrawal of her resignation which is to be implied from the conduct of Mrs Cameron in continuing to work. There was also an implied acquiescence in that situation by Warakurna in continuing to employ her. There was in effect a withdrawal "by consent of both parties to the contract". See Birrell v Australian National Airlines (1984) 5 FCR 447, 457. As at the time of Mr Cameron's termination there was an employment relationship subsisting between Mrs Cameron and Warakurna. A reference written by Mr Rapkins for Mrs Cameron also tells against the contention that Mrs Cameron resigned and that that resignation was operative in February 1996. The reference, dated 15 February 1996, commences with the following sentence: "Annette V Cameron was employed by Warakurna Community in various capacities from 18 February 1991 to 20 February 1996." The Court consequently has jurisdiction to hear and determine Mrs Cameron's application. MRS CAMERON : VALID REASON Mrs Cameron's employment was terminated merely as a consequence of her husband's employment being terminated. There was no valid reason for the termination of her employment. Warakurna acted in contravention of s 170DE(1) of the Act in effecting her termination. MRS CAMERON : REMEDY Counsel for Mrs Cameron conceded that Mrs Cameron's reinstatement is impractical. In considering the quantum of compensation which the Court should award to Mrs Cameron the central question is how long would her employment have continued but for the unlawful termination of it. See Davis v Portseal Pty Limited (1997) 72 IR 414, 416-417 Before the Judicial Registrar Mrs Cameron testified that she would have stayed on in the Community for as long as it took Warakurna to find a replacement employee. In her evidence before me she reconsidered that view and in effect testified that she could not be certain that she would have remained in her employment in the absence of her husband. I consider it unlikely that Mrs Cameron would have remained in her employment in the absence of Mr Cameron. However, there is no evidence to suggest that was any impediment in the way of Mr Cameron remaining at Warakurna as an accompanying spouse of Mrs Cameron (although not in employment) whilst the Community found a replacement for her and she continued to perform her duties in the interim. On the evidence of Mr Rapkins it would have taken about eight weeks for Warakurna to replace Mrs Cameron. In my view the appropriate quantum of compensation is eight weeks' wages. It is not appropriate to deduct from that amount the four weeks' wages Mrs Cameron received in lieu of notice. See Norman v Besser Industries (NT) Pty Ltd (1997) 73 IR 378 at 380 - 381 where the following was said: "It was then submitted that the trial judge erred in the exercise of discretion by taking into account a factual error committed by the Judicial Registrar. It was pointed out by the employer that in respect of the $7,773 awarded against it in favour of Mr Norman, a sum of two weeks pay in lieu of notice by the employer at the time of termination was not deducted. We do not necessarily see that occurrence as a factual error of the Judicial Registrar. The obligation to provide payment in lieu of notice is founded in s 170DB of the Act. There is no warrant for the deduction from any amount of compensation ordered pursuant to s 170EE(3) of the Act, of any amount payable as a result of an employer fulfilling its obligations under s 170DB of the Act. We agree with the following views expressed by Moore J in Clements v Lillian Kaneff Pty Limited ("Clements"), Industrial Relations Court of Australia, AI 0154R of 1994, 29 April 1995, at 7, unreported:- '... If an employee's employment is terminated then ordinarily the employee is entitled either to some notice of that fact or payment in lieu. The fact that in this case there was payment in lieu is not a matter, in my opinion, to be offset against compensation that otherwise is or might be awarded under s170EE for a termination which was not lawful. The Act itself requires payment of an amount in lieu of notice. Indeed, one of the matters raised by the applicant in support of the compensation claimed is what is said to be the inadequacy of the notice or the payment in lieu of notice. Another matter that is raised of a similar character is the costs that have been incurred in bringing this application and the fact that those costs are not recoverable. Both the cost and the claimed additional notice to which it is said the employee might have been entitled are not, in my view, matters properly to be considered in assessing compensation under s170EE as they are matters otherwise specifically dealt with in the Act.'" I consider that Mrs Cameron is therefore entitled to at least $6,400 compensation. She was awarded $3,200, i.e. four weeks' compensation by the Judicial Registrar who incorrectly deducted her payment in lieu of notice from the compensation to which she was entitled. The Judicial Registrar also awarded Mrs Cameron an additional $750 as it appears at least in part by way of compensation for mental distress occasioned by her termination. In Burazin v Blacktown City Guardian (1996) 142 ALR 144 at 156, it was held by a Full Court of the Industrial Relations Court of Australia, that "shock, humiliation and distress" suffered in respect of an unlawful termination of employment may be taken into account "in considering the proper amount of compensation to be ordered under s 170EE(2)." The Full Court also went on to say that: "There is an element of distress in every termination. To ensure compensation is confined within reasonable limits, restraint is required." In Burazin there were "unusual exacerbating circumstances" which made it "appropriate to include in the compensation an allowance for the distress unnecessarily caused to Ms Burazin". As the Full Court said: "These circumstances include Ms Burazin having to suffer the humiliating experience of being escorted from Blacktown's premises by the police." Mrs Cameron testified before the Judicial Registrar that after she received her termination pay she and Mr Cameron travelled to Alice Springs to consult solicitors. They then travelled to Adelaide where Mrs Cameron consulted a doctor. She had been suffering from sleeplessness and nausea from the time she arrived in Alice Springs. She was diagnosed by her doctor in Adelaide as suffering from acute stress. She remained unwell until late June 1996. Mrs Cameron then felt able to concentrate and seek alternative employment. Her inability to sleep was contributed to in large measure by the memory of two unpleasant incidents which had occurred whilst working at Warakurna. These two incidents were unrelated to the termination of Mrs Cameron's employment. Consequently, it is apparent, that the circumstances of Mrs Cameron's termination do not seem to me to have been the major cause of her condition. On the evidence before the Court I am unable to discern that the distress Mrs Cameron suffered was anything other than the level of distress normally associated with the termination of employment. See Rigby v Technisearch Ltd (1996) 67 IR 68, 93. I propose to order that an additional $2,450 be paid to Mrs Cameron by way of compensation. I received no submissions regarding the taxation of any further amount of compensation which might be payable to Mrs Cameron. I do not believe that it is the Court's role to act as a tax assessor in awarding compensation. See Lloyd Golja v Kelvin Lord, t/as Kelvin Lord & Co (Madgwick J, 20 June 1996, Industrial Relations Court of Australia, unreported). MR CAMERON : VALID REASON In my view Warakurna had a valid reason for terminating Mr Cameron's employment. He unilaterally and fundamentally altered Mr Hales' contract of employment without reference to the Council of Warakurna. His actions in so doing were highly arguably in direct contravention of the instructions given to him by letter of 30 June 1994 to consult the Council on matters involving "staff hiring and firing". His actions were certainly in breach of the following condition of his employment imposed by the letter of 30 June 1994: "If there are problems that you see with the Store Project Officers, teachers, nursing staff or any other employees you must raise them with the Council before you take any action or speak with the people concerned. The Community is very worried about the recent high staff turnover and wants it to stop." (underlining was supplied in the original document) Mr Cameron's extension of Mr Hales' probationary period was a fundamental variation to Mr Hales' contract of employment. Although it is not necessary to determine, it appears to have amounted to a termination of that contract. It was ultimately an operative factor in Mr Hales' resignation. It was a matter upon which Mr Cameron should have consulted the Council and upon which the Council should have been expected to be consulted. MR CAMERON : SECTION 170DC Section 170DC of the Act compelled Warakurna to give Mr Cameron an opportunity to defend himself against the allegations made by the Community. In my opinion, despite his claims to the contrary in his evidence, Mr Cameron knew what the Community alleged against him in the meeting of 9 February 1996. In particular, he knew that it was alleged that he had acted in respect of Mr Hales without consulting the Council. In effectively saying to the meeting that he would accept its decision he must be taken to have known upon what it was deciding. He was given a full opportunity to put his side of the issue. He was given a further opportunity on 12 February 1996 when the Community reconsidered its earlier decision. Section 170DC of the Act is to be applied in "a practical, common sense way". See Gibson v Bosmac (1995) 130 ALR 245 at 252. Having regard to the nature of Warakurna and the circumstances of its operation and decision-making processes, it is my view that Mr Cameron was given "a fair go" in the meetings of 9 and 12 February 1996. In the context of an aboriginal community in a remote outback location, it would be unreal to impose on Warakurna for the purposes of s 170DC of the Act, a requirement to formally particularise in writing the allegations made against Mr Cameron. This is especially so when one considers that only four people in the Community were literate in English and at least two of them were not present in the Community at the relevant time. I find that Warakurna did not act in breach of s 170DC of the Act in terminating Mr Cameron's employment. Mr Cameron's application under the Act, subject to s 170DB which I later consider, must be dismissed. REASONABLE NOTICE CLAIMS Mrs Cameron also pursued a claim for damages in the accrued jurisdiction of the Court for breach of contract by failure of Warakurna to give reasonable notice to her upon the termination of her contract of employment. Counsel for Mr Cameron also initially submitted that Mr Cameron was entitled to reasonable notice for the termination of his contract in the order of twelve months. This was said to be so because of the following factors: · the senior position held; · the length of the employment, i.e. five years; · the remote geographic location; and · the specialised nature of the work. Mr Cameron's original written contract of employment was for two years. It specified a period of four weeks' notice for termination in paragraph 9(b) thereof. At the expiry of Mr Cameron's initial two year term he continued to be employed. Clause 2(b) of the contract provided for the period of employment to be extended by agreement. The written contract commenced with recitals which included the following paragraph: "(b) The Employer wishes to employ the Employee and the Employee wishes to accept employment with the Employer in the capacity set out in the Schedule and on the terms and conditions hereinafter contained;" When Mr Cameron's employment relationship with Warakurna continued after the expiry of two years, it continued on the basis upon which it was accepted, i.e. "in the capacity set out in the Schedule and on the terms and conditions hereinafter contained". In my view it follows that the period of notice for termination of Mr Cameron's employment contract remained until the termination of his employment as the period identified in cl 9(b) of his written contract, i.e. four weeks. This was the period for which Mr Cameron was remunerated in lieu of notice. Mr Cameron gave evidence before the Judicial Registrar that his "original contract" was extended. In light of being reminded of that evidence his counsel withdrew Mr Cameron's claim for damages for breach of contract. Therefore there is no requirement for the Court to search for a reasonable period of notice to be implied into Mr Cameron's contract of employment. It was claimed on Mrs Cameron's behalf that she was entitled to more than four weeks' notice having regard to the length of her employment and the remote geographic location. However, in circumstances where the most senior employee at Warakurna had an entitlement to receive four weeks' notice of termination, it would be incongruous for employees holding less senior positions to be entitled to greater notice. Further, Mrs Cameron, in her resignation letter in November 1995 identified a period of four weeks as notice for termination of her employment. I find that when Mrs Cameron received four weeks' payment in lieu of notice she received reasonable notice pursuant to her contract of employment. In my view it is an appropriate period, in any event, for an employee such as a book-keeper whose skills are readily transportable across most industries. THE COSTS ISSUE Before the Judicial Registrar, Warakurna sought that the Camerons' legal representatives pay for costs arising from the adjournment of the hearing before the Judicial Registrar from 6 November to 10 December 1996. The Judicial Registrar in his separate judgment of 27 May 1997 described the circumstances of the adjournment as having arisen in the following way: "The applications were listed for hearing in Alice Springs commencing on 4 November 1996, by order of Richardson DR on 6 September 1996. By that order the hearing was listed for three days. At an earlier directions hearing before DR Liddle on 12 June 1996, the applicants indicated that they had four witnesses and the respondent seven witnesses including witnesses who may need an interpreter. At the time of the hearing both applicants were resident in South Australia. The respondent is an aboriginal community situated some 800 kilometres from Alice Springs. Most of the respondent's witnesses were resident at the community. The solicitors for the applicants and the respondent both engaged counsel from Melbourne. I am resident in Perth. Due to the widespread location of those involved in the hearing, it was highly desirable that the hearing of the application be completed within the three days allocated to it. It was extremely regrettable that it did not do so. There was no indication, prior to the hearing, either that the application would take longer than three days to be heard or that there were any difficulties in the availability of counsel for the applicants." The Judicial Registrar went on to say that: " The immediate cause of the adjournment was that the applicant's counsel had left the Court to catch an aeroplane to return to Melbourne to appear as counsel in another matter before the Court on 7 November 1996." The Judicial Registrar acceded to a request by the solicitor for the Camerons for the applications to be adjourned because as he put it: "... in the absence of [their] counsel, it could be productive of an unacceptable injustice to the applicants." In his judgment the Judicial Registrar gave a lengthy account of the circumstances which led to the adjournment applications. After an extremely thorough analysis of those circumstances the Judicial Registrar declined to order costs against the Camerons' legal representatives. A crucial factor in the Judicial Registrar's determination of the costs issue was the fact that Warakurna's counsel did not address him on the question as to what the Court would or should do in the event that the evidence was not completed by 4 pm on 6 November 1996. I respectfully agree that that matter is a crucial factor. The applicants legal representatives were not put on notice that the respondent would react by making a costs application in the event that the evidence did not conclude by 4pm on 6 November 1996. . It is also a crucial factor that the applications were listed to be heard by the Judicial Registrar for "a future period of three days". There is obvious merit in seeking to extend a hearing in a remote location if that is possible. However, one advantage for practitioners in conducting cases in the Industrial Relations Court of Australia is that (like this Court) it is generally able to provide certainty in listings unlike some other Courts. I do not accept that Mr Wood's conduct in withdrawing from the proceedings at 4 pm on the final day upon which the matter was listed for hearing constituted professional misconduct on his part let alone on the part of his instructing solicitors. See Robertson v CSR Readymix (1997) 73 IR 431. This is particularly so given that the Judicial Registrar sat for extended hours on each day programmed for the hearings and also that the matter was adjourned at 5.40 pm on the second day of the hearings with no hint that the evidence would not be concluded by 4 pm the next day. As French J said in De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544 at 547 - 548, the power of the Court to make a costs order against a legal practitioner: "... is to be exercised with care and discretion and only in clear cases ... There has to be something which amounts to serious dereliction of duty: Edwards v Edwards [1958] p 235 at 248." See also Re Bendeich [No 2] (1994) 53 FCR 422, where Drummond J said at 427: "Lawyers should know that, so long as they are not guilty of either professional misconduct or gross, as opposed to mere, negligence in the way they conduct their client's case, they will not be exposed to any personal liability to pay either the costs of their own client or those of the opposing litigant." An objective view of the conduct of Mr Wood and his instructing solicitors in the context of the matter having to be adjourned on 6 November to 10 December 1996 cannot be fairly described as professional misconduct, serious dereliction of duty or gross misconduct. It is unfortunate that the matter did not conclude in the time frame allowed by the applicants' legal representatives but it was understandable in the circumstances that they desired to adhere to that time frame. The power of the Court to award costs is, in any event, discretionary. See s 43(2) Federal Court of Australia Act 1976. Given the circumstances of this matter as outlined above, I do not consider that the respondents have made out a clear case for the exercise of my discretion in their favour for a costs order against counsel and solicitors for the applicants. SECTION 170DB Counsel for Warakurna conceded that Mr Cameron, being in excess of 45 years of age, was entitled to an extra weeks' notice. I agree with that concession and will make an order to that effect. I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall