FEDERAL COURT OF AUSTRALIA Dempster v Comrie [1999] FCA 1382 Workplace Relations Act 1996 (Cth), s298U Dempster v Comrie [1999] FCA 955, referred to Dempster v Comrie [1999] FCA 956, referred to Autistic Association of New South Wales v Dodson [1999] FCA 715, distinguished Autistic Association of New South Wales v Dodson [1999] FCA 852, distinguished Thompson v Hodder (1989) 21 FCR 467, referred to Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445, applied NIGEL DEMPSTER v M N (NEIL) COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council) & ORS V 299 of 1999 MARSHALL J 8 OCTOBER 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 299 OF 1999 BETWEEN: NIGEL DEMPSTER Applicant AND: M N (NEIL) COMRIE CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council) First Respondent NOEL ASHBY Assistant Commissioner of Police (Training) Second Respondent THE STATE OF VICTORIA Third Respondent JUDGE: MARSHALL J DATE OF ORDER: 8 OCTOBER 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondent's application for costs is dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 299 OF 1999 BETWEEN: NIGEL DEMPSTER Applicant AND: M N (NEIL) COMRIE CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council) First Respondent NOEL ASHBY Assistant Commissioner of Police (Training) Second Respondent THE STATE OF VICTORIA Third Respondent JUDGE: MARSHALL J DATE: 8 OCTOBER 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 21 and 22 June 1999 the Court heard an application by the applicant, Mr Dempster, for interlocutory relief pursuant to s298U of the Workplace Relations Act 1996 (Cth) ("the Act"). The substantive application was made pursuant to Part XA of the Act and also pursuant to the accrued jurisdiction of the Court. These reasons for judgment should be read in conjunction with the reasons for judgment delivered on 21 June 1999 in Dempster v Comrie [1999] FCA 955 and on 22 June 1999 in Dempster v Comrie [1999] FCA 956. 2 After examining relevant statutory provisions the Court formed the view, on 21 June 1999, that it had no jurisdiction to entertain Mr Dempster's claim insofar as it relied upon Part XA of the Act. At pars 23 and 24 of the judgment of 21 June 1999 the following was said: "There is no reason to suggest that Mr Dempster's claim under the WR Act was not made bona fide. Mr Grace's submission in support of the Court's jurisdiction to entertain the claim was, whilst ultimately unsuccessful, nonetheless arguable. It was only when the Court considered the relevant Parliamentary Debates that the correctness of Mr Hammond's submissions on that point was clear. Consequently, in my opinion, the Court is unable to dismiss Mr Dempster's application for interlocutory relief in a context where no full or final argument was put on the question concerning whether such relief should be granted by reference to the claim made in the accrued and/or associated jurisdiction of the Court. When the Court comes to consider the grant of interlocutory relief by reference to the non-WR Act claims, one consideration which will loom large on the question of balance of convenience is whether or not Mr Dempster's current secondment expires on 30 June 1999. If the secondment expires on 30 June 1999 there would be little utility in granting interlocutory relief which would operate beyond then. The Court will further consider the application for interlocutory relief tomorrow by video link between Melbourne and Adelaide." 3 On 22 June 1999 the Court dismissed the application for interlocutory relief having regard to a crucial matter going to the balance of convenience. 4 By letter dated 16 September 1999 solicitors for Mr Dempster advised the Court that the applicant did not intend to press his claims made in the Court's accrued jurisdiction. The solicitors also invited the Court to dismiss the application insofar as it relied on Part XA of the Act. This was done to facilitate the expeditious hearing of an appeal on the Part XA issue. 5 On 4 October 1999 the Court ordered that the directions hearing of that day be treated as the trial of the proceeding. It also ordered, on an unopposed basis, that the substantive application be dismissed. Counsel for Mr Comrie, Mr Hammond, then applied for costs. The Court reserved its judgment on the question of costs. What follows are its deliberations on that issue. 6 Ordinarily costs would follow the event and a costs order would be made against Mr Dempster. However counsel for Mr Dempster, Mr Niall, submitted that s347(1) of the Act applied so that no costs order should be made. 7 Section 347(1) of the Act provides that: "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." 8 Mr Hammond submitted that the proceeding was not one "arising under this Act" given that the Court found that the application, insofar as it relied on the Act, was beyond the Court's jurisdiction. Mr Hammond relied on the judgment of a Full Court of this Court in Autistic Association of New South Wales v Dodson given on 31 May 1999 and 24 June 1999. See [1999] FCA 715 and [1999] FCA 852 respectively. 9 In Dodson the judgment at first instance was made without jurisdiction and was hence not a matter which arose under the Act. The appeal from the judgment it followed was in the same category. Mr Niall submitted that Dodson was distinguishable because the Court was not empowered to deal with the matter at all, it being a matter which should have been dealt with by the Industrial Relations Court of Australia. Here the Court, he submitted, was empowered to consider the matter to determine if it was able to grant the relief sought such that it could be said that the application arose under the Act. 10 The Court agrees with Mr Niall that the judgments in Dodson are distinguishable. 11 On 21 June 1999 the Court made a ruling on whether it had jurisdiction to entertain what was alleged to be a claim made under the Act. The "matter" being the "single justiciable controversy" between the parties. See Thompson v Hodder (1989) 21 FCR 467, at 469. The single justiciable controversy in this case essentially concerned Mr Comrie's decision to transfer Mr Dempster and whether Mr Dempster has legal redress in respect of that decision, either under the Act or under the Court's accrued and/or associated jurisdiction. That controversy raised an issue as to whether the Act provided any relevant remedy to Mr Dempster. The controversy arose in part under the Act and in part pursuant to common law and state statute. 12 Given that there was power vested in the Court for it to consider whether it had relevant jurisdiction under the Act it cannot be said that the matter did not at least in part arise under the Act. It is another question entirely as to whether the proceeding was instituted without reasonable cause. Mr Hammond did not seek to so argue. That submission, if made, may have been difficult to accept as it was not suggested that the claim made under the Act was "colourable". See Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445, at 450-451. Accordingly Mr Comrie's application for costs is refused. 13 For the reasons above the respondent's application for costs is dismissed, there is no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 8 October 1999 Counsel for the Applicant: Mr R Niall Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr J Hammond Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 4 October 1999 Date of Judgment: 8 October 1999