JUDGMENT No. a CATCHWORDS Industrial law - costs - whether proceedings instituted "without reasonahle cause"- prosecutor unable to prove element of offence occurring within Limitation period - Prosecution could not have succeeded - prosecutor misled by third party - separation from costs of other proceedings - likely amount of costs. Conciliation and Arbitration Act s.5, s.197A. Crimes Act 1914 s.2l. AUSTRALASTIAN MEAT INDUSTRY EMPLOYEES' UNION v. SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS, HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS and DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS. Nos. I 35, I 36, I 46, I 47, I 50 and I 51 of 1987 GRAY J. MELBOURNE: 8TH JUNE 1988 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION No. I 35 of 1987 BETWEEN: AUSTRALASTAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor = and- HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I 36 of 1987 ) ) INDUSTRIAL DIVISION BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor -and- DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 46 of 1987 we eww INDUSTRIAL DIVISION BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor -and- DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 47 of 1987 eww vww INDUSTRIAL DIVISION BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor -and- SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I 50 of 1987 ) ) INDUSTRIAL DIVISION BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor -and- HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 51 of 1987 www Ww INDUSTRIAL DIVISION BETWEEN: AUSTRALASTAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor -and- SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF' ORDER THE COURT ORDERS THAT the prosecutor pay the defendant's costs of the proceeding. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA > ) NEW SOUTH WALES DISTRICT REGISTRY ) Nos. I 35, I 36, I 46, ) ) I 47, I 50 and I Sl of INDUSTRIAL DIVISION 1987 BETWEEN: AUSTRALASTIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor ~-and~ SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS, HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS and DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MREATS Defendants - REASONS FOR JUDGMENT JUDGE: Gray J. PLACE: Melbourne 8th June 1988 : In these six proceedings, the defendants were charged with offences under s.5(1}(a) and (1A)(b) of the Conciliation and Arbitration Act 1904 ("the Act"). In matters nos. I 36, I 50 and I Sl of 1987, the defendants were charged with having dismissed George Hughes from his employment, by reason of the circumstance that he was a member of the Australasian Meat Industry Employees' Union ("the Union"), an organization of employees registered pursuant to the Act. In matters nos. I 35, I 46 and I 47 of 2. 1987, the defendants were charged with having threatened to dismiss Robert Coxen, with intent to dissuade him from becoming a member of the Union. The six proceedings came on for trial at HBrisbane on 7th December 1987, together with eighteen other proceedings. At the outset, counsel for the prosecutor applied for leave to make amendments to certain of the informations and summonses then before the Court, including those relating to George Hughes. On the following day, the Court ruled on the applications for leave to amend, and rejected them, for reasons which were then given. Counsel for the prosecutor conceded that she was unable to prove the charges laid in respect of George Hughes. She asked for an adjournment of those charges, ta enable the prosecutor to consider whether it would seek leave to appeal from the decision refusing leave to amend. In the meantime, the trial of the other proceedings, including the three relating to Robert Coxen proceeded. At the close of the prosecution case, counsel for the defendant submitted that there was no case to answer in respect of a number of charges. On 10th December 1987, the Court ruled on this submission. So far as the matters relating to Robert Coxen were concerned, the ruling was that there was no evidence to support the proposition that within the limitation period any threat was made to Mr. Coxen in any way that would amount to an offence against the Act. The reference toa the Limitation perio¢d was a reference to s.21(1)(c) of the Crimes Act 1914, under which a prosecution in respect of an offence against a law of the Commonwealth, where the punishment provided in respect of the offence is a pecuniary penalty and no term of imprisonment is mentioned, May be commenced at any time within one year after the commission of the offence. There was some evidence hefore the Court of the making of a statement which may have amounted to a threat, to a number of employees, including Mr. Coxen, but no precise date was ascribed in the evidence to that statement. So far as there was evidence of a date, it put the alleged threat earlier than twelve months prior to the commencement of the proceedings. The prosecutor's case had not been made out. As a result, the three proceedings with respect to Mr. Coxen were then dismissed. The trial of the remaining eighteen informations proceeded, and was adjourned until 15th February 1988. On that date, counsel for the prosecutor announced that the prosecutor did not intend to take any further steps in relation to the proceedings concerning George Hughes, and did not intend to offer any evidence on those matters. Accordingly, those proceedings were dismissed as well. On 28th April 1988, judgment was delivered in the remaining eighteen proceedings. Orders were made dismissing 4. sixteen of the informations; the remaining two were adjourned for consideration of penalty and other orders. Those matters came hefore the Court om 3lst May 1988, and are the subject of a2 separate judgment. On that date, counsel for the defendants applied for orders that the prosecutor pay the defendants' costs in the matters relating ta George Hughes and Robert Coxen. Counsel for the defendant accepted that the power of the Court to award costs in these cases is limited by 3.197A of the Act, so that an order for costs can only be made if "the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause". He did not suggest that any of the proceedings was instituted vexatiously, but relied on the proposition that each was instituted without reasonable cause. An initiating party will not be held lightly to have instituted a proceeding without reasonable cause. The mere fact that an argument proves unsuccessful is mot an indication that a proceeding has been so commenced: Rv. Moore; ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 C.L.R. 470, at p. 473 in the judgment of Gibbs J., as he then was. On the other hand, even where a matter has proceeded ta judgment, it may be held that the claims of the initiating party were "manifestly groundless" or "bad beyond argument", and that party may be ordered to pay costs. See Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257, at pp. 274-276. In the proceedings relating ta Robert Coxen, j the onus always lay upon the prosecutor to lead evidence of a threat made to Mr. Coxen, being a threat to dismiss him,. in circumstances where such a threat might have been made with intent to dissuade him from becoming a member of the Union. The onus of proving the threat was on the prasecutor; the onus of showing that it was not made with the intent alleged would have been on the defendants. If there had been clear evidence of such a threat, made more than twelve months prior to the commencement of the proceedings, the defendants would have been entitled to an acquittal and, in the normal case, to their costs. The Court ordered the prosecutor for an offence under s.5 of the Act to pay costs where the prosecution had been commenced out of time in Nagvi v. M.B.P (S.A.) Pty. Ltd. (1981) 36 A.L.R. 379. In my view, where the prosecutor is unable to bring forward evidence that an alleged threat, or possible threat, was made within the pericd of twelve months prior to the commencement of proceedings, the position is no different. In the absence of such evidence, the proceeding has been commenced without reasonable cause. In the proceedings relating to George Hughes, no evidence was led. In argument about costs, however, both parties made reference to evidence which was heard in relation to the other proceedings. From that evidence, it is 6. clear that George Hughes was not a member of the Union at the time when he was dismissed. Charges in the terms of those which were made could not have succeeded. Counsel for the prosecutor attempted to argue that the prosecutor had acted reasonably in instituting the proceedings because it had received a statement in writing from George Hughes to the effect that he was a member at the time of his dismissal, and had been one since 1953. Whilst this statement may well have misled the prosecutor, there should also be taken into account evidence which George Hughes had given to the Australian Conciliation and Arbitration Commission prior to the commencement of these proceedings. That evidence was his own statement on oath that he was not a member of the Union at the relevant time. The Union was represented in the Commission when that evidence was given, and ought to have known of the true position. Even if the Union were misled by George Hughes as to the true state of affairs, such misleading would not amount to reasonable cause for the commencement of the proceeding. The test of reasonableness must be an objective one. The fact is that the proceedings could not possibly have succeeded at the time when they were instituted, and this means that they were instituted without reasonable cause. Of course, the position may have been different if the prosecutor had been misled by the defendants about some fact, but there has been no suggestion of that in the present cases. Counsel for the prosecutor also attempted to argue that the defendants' costs of the proceedings relating toa Robert Coxen and George Hughes could not be separated from their costs relating to the other proceedings, or, if they could, they would amount to a very small sum. It may be that, because of the way in which the proceedings were dealt with, the defendants will not have incurred very much in the way of costs in these proceedings, as distinct from the other eighteen informations. I cannot accept, however, that the amount incurred would be so trivial as to permit the Court to disregard it. It is clearly necessary for legal advisers to give proper consideration to each charge, and some costs must be involved in doing so. To the extent to which it is relevant, the amount of the costs incurred is a matter for the taxing officer, and not for the Court. For these reasons, the prosecutor should be ordered to pay the costs of the defendants of each of these proceedings. Appearances Counsel for the prosecutor: Mr. Goot Solicitors for the prosecutor: Poteri Wood & Co. Counsel for the defendant: Mr. Murdoch Solicitors for the defendant: Morris Fletcher & Cross Date of Hearing: 31 May 1988 I certify that this and the preceding seven (7) Pages are atrue copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: 7 Sune 1983 Associate: Lowa tLe