Walker v Mittagong Sands Pty Limited T/A Cowra Quartz [2011] FWA 2225

(#P112_10369) Print Q3750, 17 July 1998, per Ross VP, Watson SDP, Whelan C.

(#P113_10651) Section 347 of the Industrial Relations Act 1988 contained a prohibition against the awarding of costs except in specified circumstances (and a number of Full Bench decisions of the Commission determined that the provision did not apply to matters before the Commission) and s.170CJ of the WR Act expressly conferred upon the Commission the power to award costs in relation to termination of employment applications.

(#P116_11581) [1991] FCA 188; 28 FCR 324; (1991) 39 IR 31 (8 May 1991).

(#P121_12010) [1964] HCA 69; (1964) 112 CLR 125 (9 November 1964).

(#P130_15131) [2010] HCA 28 (1 September 2010).

(#P131_15266) As referred to in General Steel.

(#P145_17756) [1992] FCA 366 (31 July 1992).

(#P146_17932) s.347 (Costs only where proceedings instituted vexatiously etc.) included:

"(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."

(#P169_22246) [2006] FCAFC 199, 160 IR 405, 415-416, per Black CJ, North & Mansfield JJ.

(#P170_22469) s.347 (Costs only where proceedings instituted vexatiously etc.) sincluded:

"(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) 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."

(#P178_24174) [2009] FCA 339 (9 April 2009).

(#P179_24363) Op cit.

(#P217_31977) Senate Official Hansard, 8 August 2001, page 25828.

(#P222_32135) PR926115, 23 December 2002, per Giudice P, Williams SDP, Foggo C.

(#P225_32897) Para 32.

(#P228_32949) PR932454, 6 June 2003, Giudice P, Williams SDP, Simmonds C.

(#P237_34936) PR958003, 13 May 2005, per Ross VP, Kaufman SDP, Foggo C.

(#P238_35313) At para 49.

(#P241_35432) PR974659, 27 November 2006, per Lawler VP, Harrison SDP, Raffaeli C.

(#P244_35837) [2010] FWA 1939, 13 October 2010, per Spencer C.

(#P255_37893) [2009] AIRCFB 769, 28 August 2009, per Lacy SDP, Ives DP, Grainger C.

(#P269_40766) Section 31A includes:

"Summary judgment

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding."

(#P280_43047) [2010] FCA 69 at paras 5 & 6.

(#P281_43159) An expression previously used by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 (11 April 2007) at para 54.

(#P282_43614) Spencer v Commonwealth of Australia [2009] FCAFC 38 (24 March 2009), Black CJ, Jacobson & Jagot JJ.

(#P315_53333) Refer to decision of the Full Court of the Federal Court in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission, op cit at paras 41-47 & 61.

(#P320_53941) That test being referred to in General Steel, op cit, at paras 8-10 and in Dey v Victorian Railways Commissioners, (1949) 78 CLR 62; [1949] HCA 1.

(#P323_54541) Refer to the decision of Hayne, Crennan, Kiefel, and Bell JJ in Spencer, op cit, at para 52.

(#P324_54911) In Spencer, op cit, Hayne, Crennan, Kiefel, and Bell JJ stated that the two phrases 'no real prospect' and 'no reasonable prospect' convey very different meanings'. (at para 51)

(#P329_55929) At paras 58 & 60.

(#P338_56776) PN611 - PN614.

(#P345_57325) PN743.

(#P348_57416) I did not have the benefit of submissions of why, for example, the approach taken in Polynol Plastics Plastics (Aust) Pty Ltd v P. Moss [Print T2112, 20 October 2000, per Williams SDP, Acton SDP, Gay C, at para 13] does not apply.

(#P355_58100) PN365.

(#P376_60965) S9124, 15 August 2000, per Giudice P, Acton DP, Whelan C.

(#P389_62885) Of course, '... as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.' [Decision of Brennan, Dawson, Toohey, and Gaudron JJ in Smith v New South Wales Bar Association, [1992] HCA 36, (1992) 176 CLR 256 (13 August 1992), at para 37.]

(#P394_63895) Whilst the decision of Moore J in Blagojevch v Australian Industrial Relations Commission, [2000] FCA 483 (18 April 2000), 98 IR 32, at para 15, made it clear that the tribunal 'must determine whether an order for costs should be made by reference to the facts as found' because 'both the parties and the Commission would be constrained in their arguments about, and conclusions upon, questions of costs by any relevant findings of fact made by the Commission in determining the application itself', in that decision, even though there had been no express finding that evidence had been deliberately concocted, according to the Full Bench in M Blagojevch, op cit, Marshall and Lehane JJ (at para 35), reached the view that findings of that character had been made. At para 36, Marshall and Lehane JJ found that '... on the Commissioner's findings ... it is implicit that false evidence had been deliberately given'.

(#P432_68082) PN443.

(#P441_70454) There was no evidence that Mr Walker provided Cowra Quartz with the analysis he obtained prior to the company being served with the witness statement of Mr Garnon (an expert witness).

(#P446_71803) In the circumstances it is wrong to characterise the situation, as was submitted by Cowra Quartz, that: 'The respondent came before this tribunal on the basis that its position and its belief was that the applicant had unlawfully removed oil from its premises.' (PN393)

(#P455_73412) PR968915, 25 August 2006, per Lawler VP, Hamilton DP, Hingley C.

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