Doyle, Wayne v Prices Removal & Storage Pty Ltd [1998] FCA 697

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TG 23 of 1997

BETWEEN: WAYNE DOYLE

Applicant

AND: PRICES REMOVALS & STORAGE PTY LTD

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 1 june 1998

WHERE MADE: HOBART

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the notice of motion, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION

TASMANIA DISTRICT REGISTRY TG 23 of 1997

BETWEEN: WAYNE DOYLE

Applicant

AND: PRICES REMOVALS & STORAGE PTY LTD

Respondent

JUDGE: HEEREY J

DATE: 1 june 1998

PLACE: HOBART

REASONS FOR JUDGMENT The applicant seeks review of a decision of Judicial Registrar Ryan, given on 5 February 1997. There was before the Judicial Registrar an application under s 412 of the Workplace Relations Act 1996 (Cth) claiming arrears of wages. In circumstances which I will shortly mention, the applicant, after a morning's cross-examination, discontinued the application. The Judicial Registrar ordered that the application be dismissed and upon application being made by counsel for the respondent, ordered pursuant to s 347 of the Act that the applicant pay the respondent's costs. That section relevantly provides: "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." It was agreed that the application before me was a hearing de novo but should proceed on the transcript of the evidence given before the Judicial Registrar. At a directions hearing a direction was given that the applicant should file and serve by 18 May 1998 any affidavit on which he sought to rely. No such affidavit was filed. The application was filed on 6 November 1997 accompanied by a statement of claim. The statement of claim alleged that the respondent was a respondent to the Transport Workers Award 1983 and that between 3 January 1990 and 16 October 1995 the respondent employed the applicant as a truck driver. Paragraph 4 alleged: "The Applicant's employment with the Respondent was on a casual basis on the days and for the times referred to in annexure 'A' hereof." Annexure "A" is a schedule of dates commencing on 12 October 1991 and concluding on 16 October 1995. In respect of each date there is given starting and finishing times, total hours, hours respectively at normal time, time and a half and double time and normal time equivalent, the hourly rate, the wages due, the wages paid, the wages owed, meal moneys owed and meal moneys paid. The total claimed was $26,190.20, together with interest. It appeared from cross-examination that the document annexure "A" - which I will refer to as "the particulars" - was prepared by the applicant's union, the Transport Workers Union. The applicant gave them his log books and diaries, and the Union prepared his claim and gave it to his solicitors who then issued the proceedings. At an early stage in the cross-examination it emerged that for some of the time covered the applicant was permanent and not a casual employee within the meaning of the Award. He said that he only found out on the morning of the hearing that the claim was made on the basis that he was employed as a casual employee at all relevant times. He said that he did not volunteer this matter in his evidence-in-chief because, "I wasn't asked". He was then cross-examined about a number of specific dates and he admitted that the claim and the particulars did not accord with entries in his diary and log book. He was asked the following (at T27): "Q. This particular document; have you looked through this particulars document? A. No, I haven't had a chance to. Q. Have you ever read it? A. No. Q. So you cannot tell me whether or not it is correct? A. Well, I had faith in the person who did it. Q. No, that is not the question I asked you. You cannot tell me whether or not it is correct? A. To my belief it is. Q. But you have not checked? A. No. Q. You have not sat down and cross-checked this document against your log books or your personal diaries? A. That's what I said." The proceeding ended in these circumstances. The cross-examiner asked the applicant whether he needed to continue questioning him for three or four days. The applicant answered (T45): "A. Well, I can't see any point in continuing on the way you're going now. I mean, as I said to you before, I haven't gone through that paper work. I had faith in what they did to come up with accurate figures. Now, from what you have pointed out to me there has got to be some fine tuning done to that so it's an accurate claim. Q. Do you accept then that these particulars can't be relied upon by this court in determining how much money you are owed? A. From the days you have said to me? Q. No - well, from the days I have said to you, you cannot rely on, can you? A. You've picked out a few. It seems strange that ‑ ‑ ‑ Q. Do you have any doubts about whether you can rely on the balance of this document? A. From what you've said, yes. Q. It looks pretty unreliable, does it not? A. It does. Q. But you understand that this was the basis on which you calculate that you are owed $26,190.20? A. Well, I was going by what the union worked out for me. Q. It is not looking very good, is it? A. Well, there's definitely something owed." The cross-examiner then suggested it might be an appropriate time to take an early break and indicated that he would not object to counsel for the applicant speaking to the applicant over the adjournment. On resumption after lunch, counsel for the applicant said that on instructions from the applicant he did not wish to proceed with the application any further. Counsel for the respondent then made an application for costs under s 347 of the Workplace Relations Act 1996 (Cth), which the Judicial Registrar granted. I agree with counsel for the applicant that the application of s 347 has to be considered as at the time the proceedings are instituted. It is clear enough that the mere fact that a proceeding fails does not mean that it was instituted without reasonable cause. In Kanan v Australia Postal and Telecommunications Union (1992) 43 IR 257 at 264, Wilcox J said: "It seems to me that one way of testing whether a proceeding was instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause." I accept also that s 347 is an exception to the general policy of the Act that, unlike the general rule in civil litigation, costs should not ordinarily follow the event. Nevertheless Parliament has prescribed a specific criterion, namely the institution of a proceeding without reasonable cause, and I simply have to apply it to the facts of this particular case. I have no doubt that the criterion is satisfied in the present case. It is not reasonable to commence a proceeding of this kind without making any attempt whatsoever to check the reliability of the initiating document. As I noted, this was prepared entirely on material supplied by the applicant himself. Further, it appears clear on the face of the particulars and in the statement of claim that the case proceeded on the basis that for all the six years the applicant was a casual employee. That meant that he would have been entitled to a 20 per cent loading over the ordinary rate. There was no basis for that claim but the applicant was nevertheless allowed to have it proceed. I do not think it is any answer to say that there may have been some instances where the applicant was in fact underpaid. The particulars cover a period of six years with approximately two hundred entries per year. It would not be reasonable to expect counsel for the respondent and the Judicial Registrar to trawl through that large amount of material to see whether or not there were any days in which a legitimate claim had been advanced. Counsel for the applicant advanced two reasons why the section should not be applied. He said that the calculation by the Union was inaccurate and to the extent that there were miscalculations based on the log book the applicant discontinued the proceeding because of the concern as to possible proceedings under State legislation for incorrect entries in log books. The short answer is that the applicant has to take responsibility for the claim that was advanced on his behalf. He made no effort to check its accuracy or reliability. As to the log book issue, while it is true that he was given a warning in the course of the proceedings, I am not prepared to draw any inference as to whether this affected his decision to abandon the proceedings, given that he did not give any evidence as to the reason for doing so either before the Judicial Registrar or pursuant to the directions given for the hearing of this review. I conclude therefore that the application should be dismissed. I do not think there was an arguable case on this application for review. The case to resist an application under s 347 was not any better than the case of the applicant before the Judicial Registrar. So I will order that the applicant pay the respondent's costs of the notice of motion including reserved costs.