Industrial Relations Act 1988: ss. 51, 347.

Mr. J.W. Nolan

Solicitors for the Applicant: Turner Freeman

Counsel for the Respondent: Mr. A.R. Ashburner

Solicitors for the Respondent: Dobson Mitchell & Allport

The applicants pay the costs of the respondent of the application.

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

It is time that this unfortunate dispute between the University of Tasmania, Professor Peter Edwin Miles Standish and the Federation of Australian University Staff Associations came to an end. It arose out of complaints made about Professor Standish to the University which led, on 4 November 1988, to the Vice Chancellor notifying the Professor that he was suspended from duty and serving on him allegations of serious misconduct. Since then there has been a flurry of correspondence between solicitors for the three parties to the dispute, an abortive application to this Court which was determined by Northrop J. on 5 December 1988, a hearing before Commissioner Baird of the Conciliation and Arbitration Commission in December 1988 and 6 January 1989 and the commencement of an inquiry conducted by a Committee of Inquiry established by the Vice-Chancellor, to which I shall refer later, into the allegations of serious misconduct against the Professor.

2. The Committee sat in January 1989, but only dealt with procedural and formal matters resulting in a ruling that particulars of some allegations be provided by the University to the Professor. This ruling led to the institution on 24 February 1989 of the present proceedings by the Professor.

3. Professor Standish is Professor of Accounting in the Department of Accounting and Finance in the University of Tasmania. This Department has full and part-time lecturers and tutors as well as administrative staff. It also has 446 students enrolled in its courses. As the Professor is presently suspended from his chair the Department has no academic leader. Other staff in the Department must attend to the work that would normally be done by the Professor. Although the Professor is continuing to be paid his full salary and other staff entitlements, the University is not receiving any of his services in the meantime. Naturally the whole of this unhappy affair has created feelings of uncertainty in the Department, the University and the wider community. There must also be considerable personal stress occasioned to Professor Standish himself whatever may be the ultimate result of the investigation into the allegations of serious misconduct against him.

4. I mention these matters primarly because it is time that tactical skirmishing, of which the present application is an example, ceased. The sooner the part-heard, in fact barely commenced, investigation by the Committee of Inquiry appointed by the Vice-Chancellor, gets on with its task and the whole sorry affair is brought to an end, the better it will be for the University and all persons concerned.

5. This point is given added emphasis by the fact that, for reasons which will appear later, this application is misconceived as was the earlier application to this Court heard by Northrop J. last December where it is plain from his Honour's reasons for judgment, though dealing with a somewhat different application to the present, that it was in his Honour's view misconceived.

6. A statement of the material facts is necessary. From October 1977 Professor Standish has been employed by the University as Professor of Accounting. He has also been employed to carry out the duties of the Head of the Department of Accounting and Finance of the University.

7. The University is bound by the Australian Universities Academic Staff (Conditions of Employment) Award 1988 ("the Award"). It is common ground that the Award dated 18 November 1988 and made by Mr. Commissioner Baird is an award made by consent and that it binds the Federation of Australian University Staff Associations and the University.

8. Following serious complaints made about Professor Standish, the Vice-Chancellor of the University, being the Chief Executive Officer of the University within the meaning of the Award, on 4 November 1988 caused to be served on Professor Standish a written document making certain allegations of serious misconduct. At the same time a separate document was served upon the Professor notifying him that he was suspended from duty with the University pursuant to Part 8, sub-para. (d)(ii)(1) of the Award. The former document, which contained the allegations, concluded with the statement that the Professor was required within 30 days to submit a written response pursuant to Part 8 sub-para. (d)(i)(2) of the Award. The Professor did not make the requisite written response within the time limit or at all; but his solicitors wrote a letter dated 16 January 1989 to the Vice-Chancellor requesting detailed particulars of the allegations. The Deputy Vice-Chancellor replied by letter of 17 January 1989 declining to furnish the particulars.

9. The Vice-Chancellor convened a Committee of Inquiry, pursuant to the relevant provisions of the Award, to investigate the allegations against Professor Standish. The Committee met on 24 January 1989 in Hobart. There are three members of the Committee. They were appointed pursuant to the relevant provisions of the Award to which reference will be made later. Both the University and Professor Standish were represented before the Committee which, on 24 January 1989, heard extensive argument on various procedural matters including the request made on behalf of Professor Standish that the Committee order the University to furnish the further and better particulars previously requested. The Committee adjourned its proceedings until 31 January 1989 when it gave a ruling on that request and certain other matters of a preliminary nature which had been raised before it. The Committee acknowledged its responsibility "to ensure that the rule of natural justice is fairly, sensibly and impartially observed in relation to both parties". The Committee was of the opinion that the University should supply certain additional particulars to which I shall refer later. The Committee said that it would decide in due course if the additional information provided was reasonable. The Committee then said

"We are of the opinion that in relation to all

other allegations there is sufficient detail

supplied to enable a reasonable man to fairly

understand the nature of the allegations made by

the Chief Executive Officer".

"acknowledged that following presentation of the

case (the University) wished to put to the

Committee, it would be perfectly proper for

(Professor Standish) then to seek an adjournment

of reasonable duration in order to prepare a

proper response."

"We have already confirmed that the onus of proof

sits heavily upon the University. But we are of

the opinion, nonetheless, that it should be

permitted to put its case in its own way. We have

already observed that the Committee is not a court

and that these are not criminal proceedings. And

we again remind the parties that under the terms

of the award we are not bound by the rules of

evidence. Furthermore, we accept Mr. Burchardt's

(who appeared for the University before the

committee) point that to insist upon production of

the kind of particulars demanded by Mr. Lawrence

(who appeared for Professor Standish before the

committee) in relation to each and every

allegation would be tantamount to demanding that

the University present its case in the nature of

pleadings. ...

What we propose is, we believe, a common-sense

procedure intended to give the University a fair

and reasonable opportunity to present its case in

its own way. For his part, Mr. Lawrence will be

afforded the same courtesy, together with any

reasonable adjournments that may be requested from

time to time. However we again emphasise our

desire to dispose of this matter without undue delay."

11. The Committee then indicated that it was prepared to sit in February 1989 to further consider the issues and asked the parties to agree on mutually convenient dates.

12. In February 1989 the particulars directed by the Committee were furnished on behalf of the University.

13. The Committee has indicated that it does not intend to hear the matter further until the present proceeding before this Court is resolved.

14. The relevant paragraphs of the Award are set out in Part 8 titled "PROCEDURES IN RESPECT OF SERIOUS MISCONDUCT". I shall set them out, notwithstanding their length, because they give a clear picture of these comprehensive procedures. They are as follows:-

"(c) All allegations of serious misconduct shall

be investigated in the first instance by the Chief

Executive Officer.

(d) (i) Where the Chief Executive Officer

believes that an allegation of serious

misconduct by a staff member warrants

further investigation, he or she

shall:

(1) notify the staff member in

writing of the nature of the act

or acts or omission or omissions

which constitute the alleged

serious misconduct; and

(2) require the staff member within

30 days to submit a written

response.

(ii) Provided that:

(1) the Chief Executive Officer may,

at the time the substance of the

allegation is conveyed to the

staff member, if he or she

considers it necessary and in

the interests of the University,

suspend the staff member from

duty, with pay, and exclude him

or her from the University; and

(2) a staff member who is suspended

and excluded from the University

shall be permitted reasonable

access to the University for the

preparation of his or her

response to the allegation and

to collect books, papers and

other personal property.

(e) ...

(f) ...

(g) ...

(h) If the allegation is denied in part or in

full by the staff member, or if the staff member

fails to submit a written reply pursuant to

paragraph (d)(i) hereof and the Chief Executive

Officer decides that a prima facie case for

serious misconduct exists, or if the allegation

has been admitted in full pursuant to subclause

(e) hereof but the penalty is disputed by the

staff member, the Chief Executive Officer shall

proceed to refer the matter to a committee of

investigation (hereinafter referred to as 'the

Committee').

(i) The Committee shall consist of:

(i) a senior member of the legal

profession or a person with

appropriate experience in industrial

relations appointed by agreement

between the Chief Executive Officer

and the President of the local branch

of the Union;

(ii) a nominee of the Chief Executive

Officer; and

(iii) a nominee of the President of the

local branch of the Union.

(j) The function of the Committee shall be to

investigate any case referred to it by the Chief

Executive Officer pursuant to subclause (h) hereof.

(k) (i) The Committee shall hold its first

hearing promptly after the receipt by

its Chairperson from the Chief

Executive Officer of the

allegation(s) of serious misconduct.

(ii) The Chief Executive Officer shall

appoint a person who is a staff

member or an officer of the

Australian Universities Industrial

Association to present on behalf of

the University the case to the

Committee. This person may call

witnesses in support of the case and

may cross-examine any persons

(including the staff member)

appearing in support of the case

of the staff member.

(iii) The staff member shall have the right

to be present at all hearings of the

Committee provided that the Committee

may deliberate on its findings and

report in private.

(iv) The staff member shall be entitled to

be assisted or represented at all

hearings of the Committee by an agent

of his or her own choice who is a

staff member of the University or an

officer of the union and may

personally or by his or her agent

call witnesses in support of his or

her case and may cross-examine

persons called on behalf of the

University.

(v) The Committee shall give each party

reasonable notice of the time and

place at which the initial and

subsequent hearings shall take place.

The Committee may at any time adjourn

the proceedings to another time and

place.

(vi) The Committee shall, subject to this

subclause, determine its own

procedures, and shall not be bound by

the rules of evidence but may inform

itself on any matter in such manner

as it thinks appropriate and as the

consideration of the matter before it

permits.

(vii) ...

(viii) All proceedings of the Committee

shall be held in camera. ...

(ix) ...

(l) The Committee shall, after hearing and

considering the evidence adduced and submissions

made before it, promptly report in writing to the

Chief Executive Officer on:

(i) whether it is satisfied that each of

the facts or matters alleged has been

proven;

(ii) whether the facts as proven constitute

serious misconduct on the prt of the

staff member; and

(iii) its recommendation as to whether the

Chief Executive Officer should

exercise any of the powers referred to

in subclause (e) hereof,

together with the reasons for its findings,

provided that where the Committee has investigated

a matter in which the facts are not disputed but

the penalty imposed is disputed, the Committee

shall report only in accordance with paragraphs

(ii) and (iii) hereof.

(m) The Committee shall, when it furnishes its

report to the Chief Executive Officer, forward to

the staff member a copy of the same report.

(n) The Chief Executive Officer shall, after

receiving the report of the Committee, act on its

findings by proceeding forthwith to exercise one or

more of the following poweers, namely to:

(i) dismiss the case and remove any

suspension previously placed upon the

staff member; or

(ii) censure the staff member, withhold an

increment of salary for a period not

exceeding twelve months, demote the

staff member, or dismiss the staff

member from the employment of the

University.

(o) The decision of the Chief Executive Officer

shall be final, except where current rules,

practices, legislation or orders of any Governor in

Council of State require that a recommendation or

decision to demote or dismiss a staff member be

ratified by the governing body of the University,

and subject to the jurisdiction of any competent

external authority.

(p) If the staff member offers his or her

resignation with immediate effect during the

operation of these procedures, the resignation

shall forthwith be accepted by the Chief Executive

Officer and the proceedings shall thereupon cease."

These are the most relevant provisions of the Award.

15. The proceeding before this Court was commenced on 24 February 1989 by the filing in this Court's Industrial Division on behalf of Professor Standish of a document styled "APPLICATION FOR AN INTERPRETATION OF AN AWARD AND DECLARATION". The application should be set out in full except for immaterial matters. It reads as follows:

"On the grounds set out in the accompanying

affidavit the Applicants claim:-

1. An interpretation under Section 110 of the

Conciliation and Arbitration Act, 1904 of the

following provision of the Australian

Universities Academic Staff (Conditions of

Employment) Award 1988.

Clause 8(d)(i)

'(i) Where the Chief Executive Officer

believes that an allegation of serious

misconduct by a staff member warrants

further investigation, he or she shall:

(1)notify the staff member in

writing of the nature of the act

or acts or omission or omissions

which constitute the alleged

serious misconduct;'

The Applicants submit that the provision

should be interpreted in the following

manner:-

That, on the proper construction of Clause

8(d)(i)(1), the obligation that the Chief

Executive Officer shall notify the staff

member in writing of the nature of the act or

acts or omission or omissions which

constitute the alleged serious misconduct

imposes an obligation that, in the case of

each act or omission, each shall be set out

with such particularity that charges of

alleged serious misconduct may be ascertained.

2. A declaration that, upon the true

construction of the Australian Universities

Academic Staff (Conditions of Employment)

Award 1988 and/or the contract of employment

between the First Applicant, Peter Edwin

Miles Standish and the Respondent, the

University of Tasmania, in relation to

allegations of serious misconduct dated

November 4, 1988, laid against the First

Applicant, the First Applicant is entitled to

further and better particulars of each of the

allegations, and that in addition to those

particulars supplied to the Second Applicant

by the Respondent by letters dated February 2

and 7, 1989, the first applicant is entitled

to particulars of allegations, numbers

1,2,3,4,7,8,9,10,11,12,13(h),13(i),14,15,16,

17,18 and 19 set out in the allegations of

misconduct dated November 4, 1988.

3. Such further or other order and/or

declaration as the Court thinks proper."

16. Although the application refers to s.110 of the Conciliation and Arbitration Act 1904 it was common ground before me that the Industrial Relations Act 1988 was the relevant Act and that s. 51 thereof (s. 110 of the 1904 Act being its predecessor) was the relevant section. Section 51 provides:

"51(1) The Court may give an interpretation of an

award on application by:

(a) the Minister; or

(b) an organisation or person bound by the

award.

(2) The decision of the Court is final and

conclusive and is binding on the organisations and

persons bound by the award who have been given an

opportunity of being heard by the Court."

17. Hence the alleged jurisdictional foundation of the applicant's claim is this Court's power to interpret the Award.

18. The first claim in the application is not in truth a claim for an interpretation of the Award. I have already set out the relevant provision of the Award, namely, sub-para. 8(d)(i), which means precisely what it says. Professor Standish seeks what is claimed to be an interpretation of that provision of the Award so that each act or omission alleged "shall be set out with such particularity that charges of alleged serious misconduct may be ascertained". In my view this simply seeks to use different language for the plainer language of the Award itself. It is obvious that the purpose of sub-para. 8(d)(i) of the Award is to enable the staff member concerned to properly understand the allegations made, to be in a position to consider them and to answer them. To interpret the Award in the fashion asked for in the application is merely to use different words for those which appear in sub-para. 8(d)(i) itself and adds nothing to the proper understanding of the provision. What is really sought by Professor Standish in this case is the declaration set out in the second paragraph of the application, namely, that he is entitled to further and better particulars of the allegations made against him.

19. Some analysis of this Court's jurisdiction and powers is called for. It was not suggested that this Court has jurisdiction to hear this matter under s. 39B of the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1977. Reliance was placed by Professor Standish upon the Court's accrued jurisdiction under s. 32 of the Federal Court of Australia Act 1976 or the jurisdiction under the Cross-Vesting Legislation of 1987.

20. I seriously doubt that the order for particulars sought in the application is a matter properly within the Court's accrued jurisdiction. What Professor Standish really seeks is the issue of the appropriate prerogative writ on the ground of an alleged denial of natural justice. Although the question of this Court's jurisdiction was not argued before me, in my opinion the matter is not within this Court's accrued jurisdiction, but is derived from the cross-vesting legislation. It was made plain by counsel for all parties that, as the matter was before this Court, they wished to have it resolved here. Since I have reached a firm view as to the result of the case on the merits I shall not stay to analyse the basis of this Court's jurisdiction further, but shall proceed to deal with the substantive issues raised.

21. It is not necessary to set out the whole of the contents of the written notice of 4 November 1988 of the allegations of serious misconduct. It is sufficient to say that they cover some nine typed pages and make nineteen allegations, although there is a degree of overlap between some of them. Allegation numbered 19, though in form a separate allegation of serious misconduct, is in substance a summary of seventeen of the preceding allegations and it is convenient for a sufficient understanding of the matter to set out allegation 19, namely:

"19. In the alternative to charges 1 to 17

inclusive, between 30th day of June, 1985 and 20th

day of October, 1988 Peter Miles Standish has

engaged in a course of conduct amounting to

serious misconduct in his office of Professor of

Accounting including his duty to be in charge of

the Department of Accounting and Finance in that

he:

(a) has failed to undertake a sufficient number

of teaching hours;

(b) has failed to provide Ruth Hambly and Tina

Sexton with adequate or proper supervision

in undertaking their Honours Course;

(c) has disparaged the research and academic

capabilities of members of academic staff;

(d) has publically denigrated the research and

academic capabilities of Stewart Leech;

(e) has attempted to curtail the legitimate

research of members of academic staff;

(f) has attempted to bring about the resignation

of Peter Wolnizer from the said Department;

(g) has arranged for the secretarial and

administrative staff of the Department of

Accounting and Finance to undertake work on

behalf of Tasmanian Educational Association

For Management Inc., to the exclusion of

their duties to assist academic staff;

(f) has unreasonably and unfairly deprived

academic staff of adequate access to

secretarial and administrative staff for the

purpose of publication of legitimate

research and academic work;

(i) has unreasonably and unfairly adopted a

policy requiring academic staff to become

proficient in the use of the word processing

programme known as "Micro-Soft Word" in

order to publish their own books and

articles;

(j) has failed to give proper support,

encouragement and recognition to the

research work of staff in the Department of

Accounting and Finance by failing to fairly

and adequately recognise their research work

in the Departmental research profile

presented for publication in the University

of Tasmania Research Report, 1987;

(k) has failed to fairly allocate teaching

duties;

(l) has interfered in the course content and

examination methods of senior members of

academic staff;

(m) has denigrated the professional competence

of senior members of staff in public and in

private;

(n) has failed to call sufficient Departmental

meetings;

(o) has failed to consult with academic staff

about the Departmental affairs;

(p) has made false representations to Arthur

Andersen and Co., regarding a donation of

$5,000.00;

(q) has attempted to divert funds made available

to the University Careers Office by Arthur

Andersen and Co. for the use of his own

research programme in the said Department;

(r) has rejected a gift of an HP Laser Jet

Printer from Touche Ross to the University

on the basis that he would only accept

monetary funds donated to the Department of

Accounting and Finances research Programmes;

(s) has failed to present the Vice Chancellor

with required statements of income in other

than University duties;

(t) has operated Tasmanian Educational

Association for Management Inc. in such a

way as to avoid the Conditions of Employment

in other than University duties;

(u) has structured and operated Wallaringa Pty.

Ltd. and the Trust of which that company is

corporate trustee in such a way as to avoid

the said conditions;

(v) has without authority used the property and

resources at the University for the

requirements of Tasmanian Educational

Association for Management Inc."

22. The request for particulars made by letter from Professor Standish's solicitors to the Vice-Chancellor of 16 January 1989 covers seven pages and it seeks in effect further and better particulars of each of the nineteen allegations. The Committee ordered that additional information be provided by the Vice-Chancellor, as Chief Executive Officer within the meaning of the Award, as to the nature of allegations numbered 5, 6, 13(a),(b),(c),(e),(f) and (g).

23. The circumstances in which superior courts are entitled to interfere with proceedings of inferior tribunals are well established. This is not a case in my opinion which calls for any restatement of them. There is a comprehensive review of the relevant principles and authorities by Hunt J. of the Supreme Court of New South Wales in Etherton v Public Service Board of New South Wales (1983) 3 NSWLR 297.

24. The question before this Court does not concern the sufficiency of the document of 4 November 1988 specifying the allegations made against Professor Standish. That document has not been challenged in these proceedings except in so far as it is the foundation of the request for further and better particulars made to the Committee of Inquiry when it commenced to sit. The real question is whether the Committee failed to observe the rules of natural justice in declining to order the Vice-Chancellor or the University to furnish further and better particulars of the allegations numbered 1,2,3,4,7,8,9,10,11,12,13(d),(h),(i),14,15,16,17,18 and 19 as set out in the letter of 4 November 1988.

25. The Committee decided that those further particulars need not be furnished because Professor Standish could reasonably understand the nature of the allegations made against him and because the presentation of the evidence by the University would make it clear precisely what case he had to meet and enable him, if necessary, to apply for appropriate adjournments to consider that material. This was the course that found favour with the Committee. I must say that this does strike me as a rather cumbersome procedure, but not one that would appear to cause injustice to Professor Standish. If a witness is called and gives evidence against him with respect to any of the allegations and he is unable to deal with it through absence of particularity, then it is plain from what was said by the Committee that the matter may be adjourned to enable him to consider the question and deal with it later.

26. The Professor has already been given sufficient material from the detailed allegations themselves, and the further and better particulars already furnished of certain of the allegations, to enable him to prepare his case. If the Professor needs further material as the evidence unfolds before the Committee to enable him to prepare his case the Committee has said that it will adjourn so that no injustice is occasioned to him.

27. It must be remembered that, under the Award (para. 8(k)(vi)), it is for the Committee to determine its own procedures.

28. Although I do not think that any case has been made out by the Professor for the intervention of this Court, in conformity with plain common sense and with a view to resolving this whole matter as soon as possible, it seems sensible to me that the University should supply the particulars requested by Professor Standish which the Committee has hitherto declined to order.

30. There remains the question of costs. Section 347 of the Industrial Relations Act 1988 provides as follows:

"347.(1) A party to a proceeding (including an

appeal) in a matter arising under this Act 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.

(2) In subsection (1):

'costs' includes all legal and professional

costs and disbursements and expenses of witnesses."

31. Section 347 replaced s. 197A of the Conciliation and Arbitration Act 1904. Section 197A has been considered in a number of cases including R v Moore: Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 especially per Gibbs J. at 473; Heidt v Chrysler Australia Ltd. (1976) 26 FLR 257 per Northrop J. at 271-276; Naqvi v M.B.P. (SA) Pty. Limited (1981) 36 ALR 379, per Evatt J at 382-384; Jeneff v Peterson (1986) 19 IR 40 per Gray J. at 87-90.

32. The application before this Court for interpretation of the Award is incompetent. As no question of interpretation of the Award arises there is no doubt as to the correct interpretation. The real orders sought by Professor Standish are to obtain further and better particulars of allegations made against him. This is not a matter that answers the description of a question of interpretation of the Award or anything incidental to it. Although there is a proceeding before the Court, it is not a proceeding which answers the description of "a proceding ... in a matter arising under this Act" within the meaning of s. 347 of the Industrial Relations Act 1988. As to the expression "matter arising under this Act" see Kingston v Keprose Pty. Limited (1987) 11 NSWLR 404 per McHugh JA at 421-4.

33. It follows that s. 347 is inapplicable to this case. In my opinion the costs should follow the event. The applicants must pay the costs of the respondent of this proceeding.

34. Alternatively, if, contrary to my view, there is "a proceeding ... in a matter arising under this Act", it was instituted by Professor Standish "without reasonable cause" (sub-s. 347(1)), an expression considered in the reported cases including R. v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (supra) per Gibbs J. at 473; Heidt v Chrysler Australia Ltd. (supra) per Northrop J. at 271-2; Naqvi v M.B.P. (SA) Pty. Limited (supra) per Evatt J at 383; and Geneff v Peterson (supra) per Gray J. at 87-90.

35. The claim for interpretation of the Award is not a case of an argument simply proving unsuccessful as was the case in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (supra). It is misconceived. I would therefore order the applicants to pay the costs of the University of the proceeding.

36. Again in the alternative, if the proceeding does answer the description of "a proceeding ... in a matter arising under this Act" on the facts of this case that description would be apt only for so much of the proceeding as related to the interpretation of the Award (an Industrial Division proceeding). Even assuming that the application for interpretation was reasonably brought, the essence of the case, namely, the application for particulars cannot be regarded as "a proceeding ... in a matter arising under this Act". This fact distinguishes the present case from Geneff v Peterson (supra) where all of the claims in the proceedings were claims brought under the Act itself, and, as pointed by Gray (J.), could have been brought separately under the Act. In Geneff v Peterson Gray J. held that he was unable to split the claims in the proceeding for the purpose of the application of s. 197A. In the present proceedings the most important claim, being the claim for particulars could not have been brought separately under the Act. Section 347 does not restrict the Court's discretion as to costs in other proceedings. As the application for particulars was the central issue in the case I would order the applicants, if this alternative approach were correct, to pay three-quarters of the respondent's costs of the proceeding.