Ot A ee En Ol eo te a te be 5b IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION Vv. No. VICTORIA DISTRICT REGISTRY BETWEEN: FRANCIS KEVIN WILLIS and NOEL BATTESE ORDER JUDGE MAKING ORDER: Northrop J. DATE: 31 May, 1979 WHERE MADE: Melbourne ORDER: The rule nisi be discharged. cope 4 or - ae ~ ome oe , os - 18 of 1979. Claimant Respondent dated 23 May 1979 =u renee nee a ea ca eey on ere "ae re ate ne tee Be IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V. No. 18 of 1979 VICTORIA DISTRICT REGISTRY BETWEEN: FRANCIS KEVIN WILLIS Claimant and NOEL BATTESE Respondent NORTHROP J. EX TEMPORE JUDGMENT 31 May, 1979. In this matter the court, on 23 May 1979, made an order calling upon the respondent to show cause why certain orders should not be made against him under s.141 of the Conciliation and Arbitration Act 1904. The application is made by the claimant, Francis Kevin Willis, who is the secretary of the South Australian branch of the Australian Postal and Telecommunications Union, an organization under the Conciliation and Arbitration Act 1904. The respondent is the general president of that union. The orders sought were to the effect that the respondent not interfere with the running of the South Australian branch of the union and be restrained from These entering into the union premises at 62 Sturt Street. were sought as directions for the compliance with the rules. When the matter came on before the court today, the solicitor for the claimant sought an order that the rule to show cause be discharged and counsel for the respondent sought an order that the claimant pay the respondent's cost of this application. 2. mee 2 teeta e oo nee et Me ee tenes dee ee we se ne a LO Aa ee Oe nO teat atten aaeraaniscl tds Dee tes 2. Under s.43 of the Federal Court of Australia Act 1976 the court has jurisdiction to award costs in all proceedings before the court other than proceedings in respect of which any other act provides that costs shall not be awarded. Section 197A of the Conciliation and Arbitration Act 1904, insofar as it 1s relevant to the present application, reads as follows: "A party to - (a)... (b) a proceeding, including an appeal, before the Court, or before a court of a State or Territory, in a matter arising under this Act; shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order 1s made instituted the proceeding vexatiously or without reasonable cause," Mr. Gray has urged on the court that these proceedings were commenced by the claimant either vexatiously or without reasonable cause, while Mr. Cooch has argued that they were not vexatious or were not commenced without reasonable cause. The Industrial Court in a aecision Heidt v. Chrysler Australia Limited 26 F.L.R. p.257 and in particular at pp.271 to 276 considered the question of costs. It is fair to say that it is only in exceptional circumstances that an order for costs should be made. At p.274 the court said: "Section 197A is to be considered when proceedings in the court have been completed and dismissed, The principles set out above are to be applied at an early stage of the course of the proceedings. In my opinion, similar principles are to be applied when considering the matters raised by s.197A. Great care must be exercised to ensure that in finding that a party has instituted proceedings vexatiously or without reasonable cause, that party is not improperly deprived of his freedom from liability to pay costs to an opposing party. The test is a substantial one." ee a te ak eR RR A eer ot ee pene ret nee Sn vee Leen ME Ree kee ne veh = BN EP dO ollie woe ee st ane er ea a we ow ee rs 3. In that case costs were awarded against the unsuccessful claimant, The High Court made a brief reference to the same matter in respect of costs in re Federated Miscellaneous Workers Union 22 A.L.R. 347 where Mr. Justice Gibbs at pp.349 to 350 said: "The respondent, the Australian Workers' Union, has applied for costs on the ground that the proceeding was instituted by the prosecutor 'without reasonable cause' within the meaning of s.197A of the Act. In my opinion a party cannot be said to have commenced a proceeding 'without reasonable cause', within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s,197A," In my opinion, where, on the return of a rule to show cause, a claimant seeks to have the order discharged difficulties arise in determining whether those proceedings were commenced vexatiously or without reasonable cause. This is so particularly when the rule to show cause was granted by a judge after referring to the material filed and hearing the person making the application, Before a decision could finally be made the court would need to look into the whole issue of the proceedings and in effect have a hearing for the purposes of deciding whether the proceedings were commenced vexatiously or without reasonable cause. In the present case I am not satisfied that the claimant commenced the proceedings vexatiously or without reasonable cause and, accordingly, I reject the submission made that the respondents' costs be paid. Accordingly,the order of the court is that the rule nisi dated 23 May 1979 be discharged,