Bourne v Campbell [1999] FCA 1782

FEDERAL COURT OF AUSTRALIA

Bourne v Campbell [1999] FCA 1782 COSTS – termination of an inquiry into the election of the President of the New South Wales Branch of the Australian Hotels Association – whether the proceedings were instituted or without reasonable cause

Workplace Relations Act 1996, Part XII Division 1, Division 2 (s 347(1))

R v Moore, ex parte Federated Miscellaneous Workers Union of Australia [1978] 140 CLR 470, applied Heidt v Chrysler Australia Ltd [1976] 26 FLR 257, applied Re Collins [1987] 19 IR 182, referred to Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257, applied Imogen Pty Ltd v Sangwin [1996] 70 IR 254, applied Kagiyama v Southern Cross Limousine Pty Ltd (No. 2) [1997] 72 IR 328, applied Nilsen v Loyal Orange Trust [1997] 76 IR 180, applied ROBERT JAMES THOMAS BOURNE v MICHAEL CAMPBELL & ORS N 751 OF 1999 EINFELD J 21 DECEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 751 OF 1999

BETWEEN: ROBERT JAMES THOMAS BOURNE

Applicant

AND: MICHAEL CAMPBELL & ORS

Respondents

JUDGE: EINFELD J

DATE OF ORDER: 21 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. as ordered on 5 November 1999, the applicant pay the costs of the first to eighth respondents 2. there be no order as to the costs of the respondents Terence Christopher Healey and the Australian Hotels Association Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 751 OF 1999

BETWEEN: ROBERT JAMES THOMAS BOURNE

Applicant

AND: MICHAEL CAMPBELL & ORS

Respondents

JUDGE: EINFELD J

DATE: 21 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In a judgment given on 5 November 1999, I terminated an inquiry into the election on 9 February 1999 of the President of the New South Wales Branch of the Australian Hotels Association and dismissed the application for the inquiry with costs. At the time of delivery of judgment, the applicant's lawyer sought leave to reopen the issue of costs so that he could make some submissions on the matter. As the issue of costs had not been specifically addressed at the hearing on 1 November 1999, because no party sought to do so, I allowed submissions to be made and they were delivered to the Court on 10 November. The first to eighth respondents, and the AHA and Mr Healey, seek or support the existing costs order. The applicant opposes any order. 2 Provision is made in Part XII of the Workplace Relations Act 1996 (the Act) for "Financial Assistance and Costs". Division 1 of that Part headed "Financial Assistance" first provides for the Minister for Workplace Relations to grant financial assistance to a party to an election inquiry where the application is reasonable and hardship would be inflicted if there was no grant. There is also provision for the Court to certify in an election inquiry case that the person concerned acted reasonably in commencing the proceedings. Neither a ministerial grant nor a court certificate is sought in this case. 3 Section 347(1) of the Act, which appears in Division 2 of Part XII headed "Costs", provides that costs may only be awarded against an applicant in a proceeding under the Act if the proceedings were instituted vexatiously or without reasonable cause. It is not suggested, and there is no evidence, that these proceedings were instituted vexatiously. 4 The question for consideration here is whether these proceedings were instituted without reasonable cause. That term has been said to be something more than that the argument was unsuccessful (R v Moore, ex parte Federated Miscellaneous Workers Union of Australia [1978] 140 CLR 470 at 473 per Gibbs J) and to be what in jurisdictions other than industrial would be an abuse of process (Heidt v Chrysler Australia Ltd [1976] 26 FLR 257 at 272 per Northrop J). 5 Moreover, in Re Collins [1987] 19 IR 182 at 186, Justice Wilcox found that it was reasonable to grant a certificate for costs even where the application for an election inquiry was dismissed because the dismissal came only after full argument and in circumstances where the applicants co-operated in expediting the inquiry and minimising costs. The applicant submits that these cases and the legislation mean that the Court "cannot make an order for costs" in this case. 6 However, in Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257, Justice Wilcox said at 264–5: It seems to me that one way of testing whether a proceeding is 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 of one or more arguable points of law, it is inappropriate to stigmatise the proceedings 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 a reasonable cause. Although that case is distinguishable on the facts, his Honour's observations state a generally applicable principle with which I respectfully agree.