Gianna Bagnara v Casino Canberra [1995] IRCA 328

CATCHWORDS INDUSTRIAL LAW - COSTS - Discretion to Award Costs Against Solicitors - Lack of Diligence Resulting in the Hearing of a Notice of Motion to Vacate a Hearing Date - Solicitors Ordered to Pay Costs. Industrial Relations Act 1988 s 347 GIANNA BAGNARA -v- CASINO CANBERRA No. NI 1735 of 1995 COURT: PATCH JR PLACE: SYDNEY DATE: 6 JULY 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1735 of 1995 BETWEEN: Gianna BAGNARA Applicant AND: Casino Canberra Respondent BEFORE: PATCH JR PLACE: SYDNEY DATE: 6 JULY 1995 REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) In this matter, the respondent has filed a notice of motion seeking to vacate the hearing date of 12 July 1995 when hearing of this matter is listed before me in Canberra. The applicant opposes that. The respondent seeks to vacate the hearing date because two of their witnesses, one of whom is said to be "vital" and one of whom is said to be "important", will not be available on 12 July. One of them is on holidays, travelling around Australia in a car with his family without a mobile phone and may not be able to be contacted. The other witness is going overseas on a pre-arranged holiday and will be out of Australia from 7 to 25 July. If, at the callover, the agent of the respondent's solicitors had been fully instructed with the necessary information as to the availability of the respondent's witnesses, the matter would never have been set down for hearing on 12 July. The respondent's case may be seriously weakened by the lack of diligence of its solicitor. I therefore believe that the greater fairness requires that I grant the motion. The hearing date of 12 July is therefore vacated. The next matter to be considered is the question of costs. Mr Charny of counsel appears on behalf of the applicant and the applicant's trade union. As I said before, if the agent of the respondent's solicitor had been properly instructed, then the matter would not have been set down for 12 July. That also means that this contested notice of motion would never have occurred. The respondent's solicitors should have ascertained the availability of the witnesses before the directions hearing and given that information to their agent. Because of the wording of Section 347 of the Industrial Relations Act 1988, in my opinion, costs should not be ordered against the respondent. The respondent has initiated these proceedings, namely the notice of motion, but, because I have granted the motion, it cannot be said that the proceedings have been initiated "vexatiously" or "without reasonable cause". I therefore cannot order costs against the respondent itself. However, the notice of motion came into existence solely because of the lack of diligence of the respondent's solicitors. Section 347 of the Act does not limit the discretion which the Court has to order costs against persons who are not parties to the proceedings. I therefore order the respondent's solicitors, Allen Allen and Hemsley, to pay the costs of the applicant in the sum of $380.00. That is assessed as follows. Counsel's fees for appearing on a contested notice of motion $350.00; solicitors costs for some minor preparation work associated with the appearance of Mr Charny $30.00; making a total of $380.00. I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar Patch. Caroline Sternberg Associate 27 July 1995 Appearances: Counsel for the applicant: Mr G Charny Solicitor for the respondent: Mr K. Cush INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1735 of 1995 BETWEEN: Gianna BAGNARA Applicant AND: Casino Canberra Respondent BEFORE: PATCH JR PLACE: SYDNEY DATE: 6 JULY 1995 MINUTES OF ORDER The Court orders that: 1 The hearing date of 12 July is vacated. 2. The respondent 's solicitors, Allen, Allen and Hemsley, pay the costs of the applicant in the sum of $380.00.