_--GMENT No. 24. /63.. THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD Q7 of 1987 INDUSTRIAL DIVISION ) BETWEEN: COLIN STANLEY HARDIE Applicant AND: HILTON HOTELS OF AUSTRALIA PTY LIMITED Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 5 FEBRUARY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. NOTE: the application be struck out, without prejudice to the applicant's right to bring similar proceedings relating to the matters sought to be placed in issue in any of the papers before the Court; no order for costs be made. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT! REGISTRY ) QLD Q7 of 1987 INDUSTRIAL DIVISION ) BETWEEN: COLIN STANLEY HARDIE Applicant AND: HILTON HOTELS OF AUSTRALIA PTY LIMITED Respondent PINCUS J. 5 & 9 FEBRUARY 1988 EX TEMPORE REASONS FOR JUDGMENT This 1s an application to adjourn the further mention of an industrial case, but I have thought it necessary to reserve it briefly, as it appeared to me to involve a question of principle. The applicant, Mr Hardie, commenced proceedings on 4 November 1987 seeking the imposition of penalties upon the respondent pursuant to s.119 of the Conciliation and Arbitration Act 1904, alleging a failure in 1986 and 1987 to give preference to 136 members of the Federated Liquor and Allied Industries Employees' Union of Australia who applied to the respondent for work. The application also alleged that in May 1987 the respondent failed to give preference to union members by not retaining in employment three named people, Messrs McRobbie, Heighway and Rawson. The affidavit in support of the application made by Mr Hardie gave some details of the extent to which the matter had then been investigated. For example, it said that the union had maintained an employment list, being a list of financial members of the union who were unemployed and seeking employment, and that from about September 1986 it began to refer members on the list to the respondent for employment. It also obtained a proforma application for employment and people who were referred to the respondent for employment were invited to fill it out. That is referred to in paragraph 16 which mentions that members who were referred to the respondent for employment made a statutory declaration setting out their experience, and the like. Further, the union began placing advertisements in newspapers asking members of the union to contact it regarding employment in the hospitality industries. People who replied were referred to the respondent for employment. The affidavit also said, in paragraph 20, that between September 1986 and February 1987 the union referred 58 financial members to the respondent with requests for employment and none were employed. The affidavit said that records of the union had been perused relating to attempts to have union members employed, and a full list of such members had been prepared. The affidavit also sets out other matters relevant to the steps which had at that stage been taken, but I think I have mentioned the principal ones. The matter came before me briefly on 18 November 1987 by way of mention, and was adjourned to 23 November when I made ' orders for pleadings, which have been delivered, and it was also discussed whether or not there should be affidavits or whether the matter was to be tried in some other fashion. Mr Jerrard for the applicant argued for affidavits. In the result, I ordered that affidavits on behalf of the applicant setting out his side's evidence (so far as practicable) in full be filed and served on or before 29 January 1988. That has not occurred. There are in fact two affidavits only by disappointed employees filed on 4 February 1988. However, Mr Jerrard has' read an affidavit filed by Mr B.R. Elton, the union''s secretary, saying that in December 1987 a clerk employed by the union looked up the "Positions Vacant" column of "the Courier-Mail" from September 1986 to August 1987, searching for advertisements for a position at the respondent's hotel. A search was then made of records kept by the union relating to applications for positions at the hotel by union members, and the statement of claim which was delivered on 17 December was apparently drawn up on the basis of matchings between the two lists. Mr Elton's affidavit also says that towards the end of November 1987, presumably after the last directions hearing, he told the respondent he wanted to conduct a wages inspection. That occurred in mid-December, and just before Christmas the respondent was asked to provide a list of all employees who started at the hotel from July 1986 to December 1987. That list was produced. The affidavit also said that having considered the defence, Mr Elton became aware that he could assert, based on the list of employees provided, that there were other dates on which there were vacancies for particular positions in respect of which the union's record indicate an application had been made by a member of it. He proposed to conduct a further search of the records to find details of applicants for positions. The affidavit gives certain other information which it is not necessary to set out here, but reference should be made to para.15 which I quote in part: "T am aware that a proper preparation of the case for the Applicant herein must involve the obtaining of direct evidence in the form of affidavits from members of the Union who have made applications for work as alleged in the Statement of Claim. With respect to those persons named in the Statement of Claim of the 17th of December, 1987 the Union has had limited success, thus far, in contacting the members in order to refer them to our Solicitors for the purpose of their swearing affidavits." The statement of claim, as I mentioned, was delivered pursuant to my order made in November, on 17 December 1987, and 1t asserted in para.10 that, on divers days in September and October 1986, members of the organisation, being the union, applied for work to the respondent and its servants or agents, and they were willing to perform the work. It then sets out in 14 numbered sub-paragraphs assertions that particular members had applied for designated work. It goes on to say in para.12 that in August 1987 members applied for work to the respondent and were willing to perform the work, and sets out in five numbered sub-paragraphs the names of the persons said to be covered by that allegation. To get back to para.15 of the affidavit, it says: "This is because a high proportion of them are no longer at the addresses which were recorded in the records referred to in paragraph 2(b) hereof or are otherwise difficult to contact at the present time. I wish to conduct a more thorough search of the whereabouts of these persons and any others who we may also need to contact if the particulars in the Statement of Claim are amended. I propose to place advertisements in the newspapers in order to contact these people or, if necessary, engage a firm of private enquiry agents to conduct the search on behalf of the Union." Paragraph 16 says: "IT consider that the additional investigations and searches for the purpose of preparing amended particulars to the Statement of Claim will take about two months." When the application for adjournment was made, Mr Watson, for the respondent, opposed it, saying, in effect, that it was oppressive and the course which he urged me to take was to set the matter down for hearing. I do not find that an attractive proposal for a number of reasons. The principal one is that the matter is unlikely to be heard immediately; it may take some time to prepare and probably cannot be heard for a few months. During that time, one assumes from what Mr Elton has said and Mr Jerrard's submissions, the case is likely to be reshaped, to a large extent. An application for amendment undoubtedly will be made. To set the case down would really just defer resolution of the basic problem, which has somewhat troubled me. This is that, as is plain, when the application was made on 4 November 1987 alleging failure to give preference to any of 136 members who applied, no thought of any substance had been given to the question whether or not that allegation could be established. The statement of claim was delivered in December and I have given some details of that. Again, it is not suggested that the allegations in the statement of claim, or most of them, can be established. The proposal which Mr Jerrard puts before me, with his usual persuasiveness, is that it is a reasonable course to allow these further investigations to take place. Whereupon the case will be, as he in effect concedes, entirely reshaped, and it may be appropriate then to determine how the matter should proceed - that is, whether the case 1s to proceed on oral evidence or by affidavit, and whether the respondents are to file affidavits. I said during the course of the hearing that it seemed to me that a possible course 1s to strike the application out. I am somewhat reluctant to do that, because it could be misinterpreted and could be taken by those interested in the case to mean that I do not think the applicant has got a good case. I have, however, had an opportunity to consider it, since the matter was before me this morning and have come to the conclusion that the application should be struck out. In my opinion its commencement was an abuse of process. I could understand that, in some cases of urgency, it is necessary to bring proceedings, whether of an industrial kind or not, making broad allegations, to indicate the general nature of the dispute to the Court. However, in this case, it seems clear enough that both at the application stage and the statement of claim stage, the applicant was, so to speak, flying blind. He seems to have started the application before he really knew what he wanted to allege or what he could prove. Mr Jerrard and Mr Watson agree that there is ample time in which to bring another application. Mr Watson says that it is unfair that this application hangs over the head of the respondent during the time when the applicant is deciding what the case is about. I think that there is a more fundamental objection to the course the applicant proposes, and that 1s that it is oppressive and undesirable, in general, that applications be brought to this Court in advance of the applicant's having anything other than a very broad idea of what he wants to allege. I think that, in general, the investigation of the matter up to the stage of deciding what the allegations are to be should precede, not succeed, the making of the application. The application will therefore be struck out, without prejudice to the applicant's right to bring similar proceedings relating to the matters sought to be placed in issue in any of the papers before me. 9 February 1988 The successful respondent seeks an order for costs. It has to be said that the applicant's conduct of this matter has been unorthodox and not of a kind which the Court would wish to encourage. The case began three months ago, the principal allegation relating to 136 unspecified employees. And then when the statement of claim was delivered, they had become 30. In pursuance of an order for which the applicant asked, affidavits were delivered, and the 30 employees became two. It appears from Mr Elton's most recent affidavit that what the applicant wishes to do at this stage is to conduct a thorough investigation of documents in its possession, and others it hopes to obtain, to find out what breaches of the relevant provision - s.119 of the Conciliation and Arbitration Act 1904 - have occurred and can be established. That should have been done some time ago. Putting the matter in broad practical terms, the mode of conduct of the case on behalf of the applicant has been to bring before the Court the general subject of the respondent's failure to give preference to employees who are union members. The applicant has apparently thought it a reasonable course to bring the proceedings alleging numerous breaches which, clearly enough, he could not prove on the information available to him, and to deliver a pleading alleging 30 breaches without, again, any proper attention to the question of what could be established. As I said in my reasons for striking the application out, it is undesirable, in general, that applications be brought here when the applicant has nothing other than a broad idea of what he wants to allege. The result of doing so is, in my opinion, unfortunate from the point of view of the Court and persons who are subjected to proceedings of that sort. The case was started at a time when the applicant, according to his version of events, knew what sort of case he wanted to make in the broad sense, and of what provision of the law he wanted to allege breaches. But he had no clear idea what breaches had occurred. It does not seem to me that it is the practice of any court to entertain allegations of breaches of the law made in such a way. As I. suggested during the course of argument, it may be that in other jurisdictions - in particular, before Commissioners - sometimes matters are brought before tribunals less formally. The question argued before me today, however, is whether the applicant's conduct is such as to merit the unusual sanction of an order for costs. Both sides urged me to apply the views of Northrop J. in Heidt v. Chrysler Australia Ltd (1976) 26 F.L.R. 257 with reference to the proper construction of s.197A of the Act. I do not propose to quote at length from what his Honour there said. But I note in particular that his Honour uses these expressions, at p.274: "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." , 10. Mr Watson, for the respondent, has put at the forefront of his argument the conclusion, at which the Court has already arrived, that the institution of the proceedings was an abuse of process. It does not seem to me, however, that that concludes the matter. The expression "abuse of process" is used in various senses, not all of which can be equated to vexatiousness. In particular, I refer to the decision of the High Court in Clyne v. Deputy Commissioner of Taxation (1984) 55 A.L.R. 143. It was decided on 31 July 1984, and the judgment deals at pp.151 and 152 with the question whether filing one's own bankruptcy petition in succession to a creditor's petition may be an "abuse of process". That judgment uses the expression in rather a broad sense, and it has some analogy with the sense in which I have used it. I do not say, of course, that the applicant, 1f it commences further proceedings, may not ultimately be successful; Mr Jerrard, for the applicant, has said that there will be legal questions involved, and that may well be so. What I have concluded is that the applicant has committed a procedural solecism, and that in the exercise of the Court's inherent jurisdiction, the application should be struck out. I regard the case as being one which is marginal, in the sense that the applicant must have gone close to meriting the unusual sanction of an order for costs. But in the whole of the circumstances, I am of the view that an order for costs should not be made. I do not do so on the principle that serious procedural errors can never warrant an order for costs in proceedings of this kind. It seems to me, however, that primarily what the ll. + Pay legislature had in mind in enacting s.197A was the sort of case where, as a matter of substance, there was nothing to be argued about. Here - to put it in layman's terms - what the applicant has done is gone off half-cocked. I donot think that in the particular circumstances of this case that can be said to be "vexatious". It appears to me, with respect, to be correct, as Gray J. said in Geneff v. Peterson (unreported, 5 December 1986), that the notion of vexatiousness in this context is roughly equivalent to "without reasonable cause". Therefore no order for costs will be made. * certify that this and the 4Q preceding Pages are a true copy of the reasons for Judgment herein of His Honour Mr Justice Pincus Sutin Associate Dated 7 February 1983