Burrows and Gas Industry Salaried Officers Federation (GISOF) v Gascor (t/as Gas & Fuel) [1995] IRCA 213

CATCHWORDS INDUSTRIAL LAW - Termination of employment - Discontinuance - Notice of Discontinuance filed by applicant - Costs, application by respondent, Section 347 Order 22. Industrial Relations Act 1988, Section 347, Order 22. THOMAS JAMES BURROWS AND GAS INDUSTRY SALARIED OFFICERS FEDERATION (GISOF) v GASCOR (t/a GAS & FUEL) No. VI-1606/95 Before:Ryan JR Place: Melbourne Date: 19 May 1995 Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257; Canceri v Taylor [1994] 123 ALR 667.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1606/95 B E T W E E N: THOMAS JAMES BURROWS AND GAS INDUSTRY SALARIED OFFICERS FEDERATION (GISOF) Applicant AND: GASCOR (t/a GAS & FUEL) Respondent RYAN JR MINUTES OF ORDER 19 MAY 1995 THE COURT ORDERS THAT: Application for costs dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1606/95 B E T W E E N: THOMAS JAMES BURROWS AND GAS INDUSTRY SALARIED OFFICERS FEDERATION (GISOF) Applicant AND: GASCOR (t/a GAS & FUEL) Respondent COURT: RYAN JR PLACE: MELBOURNE DATE: 19 MAY 1995 REASONS FOR JUDGMENT APPLICATION FOR COSTS APPLICATION FOR REMEDY FOR UNLAWFUL TERMINATION PROGRESS FEBRUARY TO MAY 1995 On 14 February 1995 the second named applicant filed an application for remedy for unlawful termination of employment. The application was made on the prescribed form 132 and was an application by the Union and was signed by the Secretary of the Victorian Branch of the Union. On 20 February the solicitor acting for the respondent filed a Notice of Appearance. On 22 March both applicants, the solicitor for the respondent and a representative of the respondent attended a conciliation conference before a Commissioner of the Australian Industrial Relations Commission. On 30 March the Commissioner certified pursuant to subsection 170ED(2) that the Commission had been unable to settle the matter by conciliation. On 26 April the Listing Co-ordinator of the Court in Melbourne advised both parties that the claim had been set down for a Directions Hearing on 9 May. On 2 May the Secretary of the Union, the second named applicant, signed and filed a Notice of Discontinuance which read as follows: "The applicant hereby wholly discontinues this proceeding." On 3 May the file was endorsed "settled 2-5-95". Although action was taken to remove the matter from the Directions Hearing list published and displayed on 9 May it would appear that the second named applicant failed to comply with Order 22 Rule 6 which provides that: "a party filing a notice under Rule 5 must, on the day of filing, serve the notice on each other party". Regrettably, the Registry also seems to have failed on this occasion to comply with an administrative practice whereby Notices of Discontinuance that have not been signed by a respondent are faxed to the respondent. APPLICATION FOR COSTS 9 MAY 1995 At the Directions Hearing on 9 May Counsel appeared on behalf of the respondent having apparently noticed that the matter was not listed and having ascertained through the Registry that a Notice of Discontinuance had been filed on 2 May. Counsel for the respondent sought and was granted leave to mention the matter on the basis that the respondent had been advised of the Directions Hearing listed for that day. Counsel for the respondent applied for costs for the day on the basis that an applicant had failed to comply with Order 22 Rule 6 and serve the Notice of Discontinuance on each other party. I expressed doubts as to the likelihood of costs being available under Section 347 and indicated that, in any event, I would not further consider an application for costs in the absence of the applicants. I also indicated that it did not seem appropriate to incur further costs on the part of the respondent by requiring or expecting the respondent to appear further. I reserved on costs and have since examined the file. Had the Notice of Discontinuance been filed by a solicitor or a representative of an applicant who was not a party in the proceeding I would have required the solicitor or representative to appear and respond to the application for costs. However, the file clearly shows that the Notice of Discontinuance was made, signed and filed by the second named applicant. Order 22 Rule 3 reads as follows: "3(1) Notwithstanding the filing of a notice of discontinuance pursuant to rule 2, application may be made to the Court on motion for an order for payment of costs. 3(2) The Court may determine the application and, subject to Section 347 of the Act, make such order as it considers appropriate. I note that the respondent has not complied with rule 3(1) in that no application for costs has been made on motion. However, putting that aside, the Court can only consider costs subject to Section 347. Subsection 347(1) is quite clear. A party to a proceeding 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. There is absolutely no evidence of the institution of the proceeding vexatiously or without reasonable cause by the second named applicant (or for that matter the first named applicant). I am quite content to rely on the authority of Kanan v Australian Postal and Telecommunications Union [1992] 43 IR 257 at 264 and Canceri v Taylor [1994] 123 ALR 667 at 676 in assessing whether a proceeding is instituted without reasonable cause. This is not a case in which it may properly be said that the proceeding lacks reasonable cause. In the circumstances the application for costs must be dismissed. ORDER The respondent's application for costs dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 19 May 1995 Date of Hearing : 9 May 1995 Judgment : 19 May 1995