Application under s.686 of the Industrial Relations Act 1991.

Judgment in this matter was handed down on 23 August 1996. Both parties had, on 17 May 1996, the final day of hearing, stated they wished to make submissions as to costs. On 30 August 1996, the respondent's legal representatives sought a further date for such submissions.

That hearing was set for 12 noon on 11 September 1996. On that date, without prior advice to the Commission or to the respondent, the applicant sought an adjournment on the grounds, firstly that he had appealed and wanted the hearing delayed until that had been decided, secondly, because he had not had enough notice to prepare his argument as to costs, and, thirdly, he would be being denied natural justice if he had to go on.

The respondent agreed to the adjournment sought only on the basis that costs would be awarded for the day. Mr Fegan said he had no objection to paying costs for Ms Tancred being there on that day. He took issue with the amount of $200 sought: "$100 would be more the mark - ten minutes in court". He later stated he made no objection to an order being made for payment of costs in the amount of $200 within fourteen days.

A further hearing of the costs issue was set for 4 October 1996.

At the conclusion of proceedings the applicant asked whether there would be a hearing for costs if costs were not paid within 14 days. He was advised that hearing would not go ahead, but there could be further argument then as to the next step, if any. I am not aware whether those costs have been paid.

On 4 October 1996 there was no appearance by the applicant or by anyone on his behalf.

The matter had been set for 9.30 a.m. but did not get under way until after 9.45 a.m. The applicant's name was called three times outside the court, there being no response. The registry and the library had been checked to make sure he had not been delayed at either place. It was noted that the proceedings were concluded at 10.10 a.m.

Ms Walsh, solicitor, appearing on behalf of the respondent, at the commencement of proceedings tendered a letter received by facsimile in her office sometime during the previous afternoon.

"Dear Sir/Madam, I am writing to advise you that I intend asking the court to adjourn the costs hearing in respect of the above-mentioned matter when it comes before the court tomorrow, 4 October 1996. Therefore, your attendance will not be required, yours sincerely, Damien Fegan 3.10.96."

Ms Walsh advised that the facsimile had neither a return phone number nor fax number, so they were unable to communicate with the applicant to say they would oppose the application. It was thought the fax had been received around 4 p.m. Ms Walsh made enquiries with the electoral roll and White Pages seeking a phone number and the applicant is not listed.

The Commission noted that it had received no request from Mr Fegan for any adjournment.

In the light of the above, the hearing for costs by the respondent proceeded ex parte.

Ms Walsh submitted that the Industrial Relations Act 1996 provides in s.181(1)(b) that costs are in the discretion of the Commission. The question of costs is dealt with in Pt.25 of the Industrial Court Rules. The discretionary factors which are set out in Pt.25 of the 1992 Regulation do not appear in the new Industrial Relations Commission Rules 1996. These proceedings are governed by the Industrial Relations Act 1996 and the Rules of the Commission: 1996 Rules, Pt.27 r.202(1) and r.203(1). The Industrial Court Rules (Transitional Regulation) 1992 sets out some factors which the court may consider relevant at Pt.25 r.3(2) in exercising discretion in awarding costs.

Rule 13 of Pt.25 of the Industrial Court Rules 1992 regulation provides a table which effectively provides that where an amount less than $10,000 is recovered no costs are recoverable unless the court otherwise orders.

In relation to the factors the court may take into consideration, the merits of the applicant's application can be questioned in terms of the success of his claim. In relation to his claim for annual leave the applicant was successful. However, the sum ordered by the court was the same sum offered by the respondent in a letter dated 29 March 1996 and that offer was rejected. In relation to the sick leave claim the applicant was successful. However, the applicant did not submit a claim to the respondent at the relevant or appropriate time and, therefore, the respondent could not have known of such a request. The claims in respect of fuel refund and car wash were dismissed.

Accordingly, the whole of the claim totalled an amount of $3160.90 in his amended application. The order in the applicant's favour amounted to $778.70 and of that amount an amount of $515.65 in respect of the annual leave component of his claim had been offered to the applicant by the respondent.

During the course of proceedings a great deal of time was taken up with the claim for fuel refund and car wash issues, upon which the applicant was not successful. In terms of the court taking into account the behaviour of the applicant in the proceedings and the time involved in arguing these matters before the court, the respondent submitted that the amount in issue is so trivial that the appropriate venue was not the Industrial Court, but the Commission. The amount of the claim in these proceedings was well below the $10,000 maximum allowed on small claims applications under s.379 of the Industrial Relations Act 1996.

Given the alternative and the more appropriate venue for the hearing of the applicant's claim and given the applicant had told the court that his intention in bringing these proceedings was to attempt to set a precedent at a high level, it was submitted that the applicant has done little more than conduct, if not vexatious, then certainly improperly motivated proceedings. Those proceedings have resulted in the respondent incurring considerable costs which are unreasonable and unnecessary in the circumstances. It is not fair, proper or reasonable in these circumstances that the respondent should bear the costs of the applicant's motivation to use the Industrial Court as a stage for pursuing his own agenda. There are more appropriate venues for doing that as the taxi industry and the Transport Workers' Union are engaged in and have been doing so for quite some time.

The questionable merits of the applicant's application, the inappropriate jurisdiction in which proceedings were commenced, the misuse of much of the Court's time on matters which were ultimately dismissed are factors which the court should take into account in allowing the respondent to recover costs.

The Industrial Relations Act 1996 (the 1996 Act) provides in s.181 as to costs in respect of matters dealt with by the Commission in Court Session:

(1) Subject to the rules of the Commission and any other

assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.

Part 27, Costs, of the Industrial Relations Commission Rules 1996 provides as follows:

203. (1) The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.

204. Where by or under these Rules or by any order of the Commission under section 181(1)(d) costs are to be assessed, the costs are to dealt with in accordance with the Regulations and the Rules made in respect of the Legal Profession Act 1987.

205. Subject to this Part, where by or under these Rules or any order of the Commission costs are to be paid to any person, that person shall be entitled to assessed costs.

Schedule 4, savings, transitional and other provisions, of the 1996 Act provides in cl.31:

(2) If, before the repeal of the 1991 Act, the former 1991 Act Commission or the former Industrial Court, had commenced the hearing of, but had not determined, a matter, the person or persons constituting the Commission hearing the matter are to continue the hearing, and are to determine the matter, sitting as the new Commission.

(3) If proceedings referred to in subclause (2) are proceedings before the former Industrial Court, the new Commission sitting to determine the matter is to be the Commission in Court Session (whether or not the matter is one within the jurisdiction of the new Commission in Court Session under this Act).

This application was one heard before the former Industrial Court. Enforcement under the 1996 Act in respect of contract determinations rests with the Commission in Court Session.

(1) instituted a claim in the Industrial Court well below the maximum

amount that would have allowed it to be dealt with less formally before the Chief Industrial Magistrate;

(2) instituted that claim in the Industrial Court in order to gain a

precedent, but without being able to provide the full argument that would allow the Court to properly consider the matter in issue;

(3) the basis of the applicant's claim was one that may never need to

have been made if he had not deliberately breached the determination for his own purposes by not handing in his fuel slips;

(4) Although the applicant said he had not claimed for sick leave

because he believed he could be sacked, that reason no longer held when he finished driving a cab for respondent. He did not approach him then but instituted these proceedings instead.

(5) the applicant claimed an amount of $3,160.90, and orders were

(6) On 29 March 1996, prior to the first day of hearing on 4 April, the

respondent had offered to pay him $515.65, the sum claimed by the applicant for annual leave;

In respect of the respondent, the Court found that the respondent had breached the determination in respect to claims for sick leave, annual leave and downtime. Although some concessions were eventually made by the respondent in evidence, the applicant had been advised that he would be put to strict proof as to matters asserted. That inevitably affected the time taken in the proceedings. On the other hand, insofar as was consistent with his duty to his client, counsel for the respondent deliberately did not take many of the technical points open to him.

The Industrial Court (Interim) Rules 1992 which were in force at the time these proceedings were heard and decided, provide in Part 25, r.13(1), that, unless the Court otherwise orders, costs allowable in cases where the amount recovered is less than $10,000, shall be nil. It was also provided in Pt.25, r.13(3) that where a respondent in any claim for money is entitled to an order for costs, the costs allowable to such respondent shall, unless the Court otherwise orders, be that allowable to an applicant as though the amount claimed was the amount recovered.

The awarding of costs is in the discretion of the Commission. In these proceedings I believe that, in the light of the matters noted above, that discretion should be exercised in favour of the respondent, though not to the full extent sought by him.

The Commission in Court Session orders that the respondent shall have 50% of his costs as taxed.

The applicant's claim for costs is stood over generally.

***************************