CATCHWORDS COSTS - review of order of Industrial Registrar to order costs and whether application was instituted vexatiously or without reasonable cause. APPEAL - nature of review by Judge of exercise of discretionary power by Judicial Registrar. Industrial Relations Act 1988, ss 347 and 377 No. NI 1347 of 1994 NATIONAL UNION OF WORKERS v DOWNTOWN DUTY FREE MOORE J SYDNEY 8 August 1995 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1347 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: NATIONAL UNION OF WORKERS Applicant AND: DOWNTOWN DUTY FREE Respondent JUDGE: Moore J PLACE: Sydney DATE: 8 August 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The order of the Judicial Registrar of 21 March 1995 ordering National Union of Workers to pay the costs of Downtown Duty Free is revoked. 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 ) No. NI 1347 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: NATIONAL UNION OF WORKERS Applicant AND: DOWNTOWN DUTY FREE Respondent JUDGE: Moore J PLACE: Sydney DATE: 8 August 1995 REASONS FOR JUDGMENT On 2 May 1995 a Judicial Registrar published reasons for judgment concerning orders that had been made at a hearing on 21 March 1995. One of the orders was to dismiss an application made under s170EA of the Industrial Relations Act 1988 ("the Act"). That application had been filed on 20 December 1994 by the National Union of Workers ("NUW") on behalf of a Mr John Jennings alleging that his termination by his employer, Downtown Duty Free, had been in contravention of the Act. The employer was a company. The Judicial Registrar also ordered NUW to pay the respondent's costs. NUW has sought a review under s377 of the Act of the exercise of the Judicial Registrar's power to order the payment of costs. No review is sought of the exercise of the power to dismiss the application. The jurisdiction conferred by s377 requires a Judge to exercise afresh the power exercised by the Judicial Registrar. I repeat what I said in Hitchcock v Warner Bros Movie World, 19 June 1995, unreported: "Moreover, and notwithstanding observations of the Chief Justice in Foxcroft, if the review is a hearing de novo, then the power that is being exercised upon review is exercised afresh. It is not a question of the judge undertaking the review to ask whether the power exercised by the Registrar was exercised other than in accord with principle. The Judge must again exercise the power and if it is a discretionary one, exercise afresh the discretion: see Harris v Caladine (1991) 172 CLR 84 at 125 per Dawson J." See also the judgment of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 247-249. While the Court has power to award costs: see Canceri v Taylor, 123 ALR 667, s 347 limits the circumstances in which a party to proceedings may be ordered to pay the costs of another party. Costs may be ordered only if the party against whom the order is sought, instituted the proceedings vexatiously or without reasonable cause. It is thus necessary to determine whether the application of NUW can be characterised this way. A submission was made by NUW that it did not institute the proceedings. This submission is plainly wrong. The application was filed by NUW. It did so as a statutory agent of Mr Jennings: see AWU-FIME Amalgamated Union v Queensland Alumina Ltd, unreported 14 July 1995 Moore J, but by operation of s170EA(4), NUW became a party to the application in the absence of an order to the contrary. Had NUW not taken the step of lodging the application, then these proceedings would not have arisen. It is beside the point that other proceedings may have been instituted by Mr Jennings. There is no doubt, in my opinion, that NUW should be viewed as having instituted the proceedings. This leads to the question of whether those proceedings were instituted vexatiously or without reasonable cause. I set out some of the background before addressing the provisions of s347. Downtown Duty Free, as the name suggests, operated a business of selling goods duty free to travellers from and to Australia. Mr Jennings was employed as a storeman in the store areas of the respondent's operation at Sydney airport. On 21 November 1994 an altercation occurred between Mr Jennings and a Mr Mansour who was a supervisor. A further confrontation occurred later that day. The version of events recounted by Mr Jennings when giving evidence in chief was that he clocked on for work at 7:33 am. His evidence was that prior to that he was approached by Mr Mansour and they had a heated discussion concerning union business. Mr Mansour was a union representative and shareholder in Downtown Duty Free. Mr Jennings account was that he said Mr Mansour had a conflict of interest. Mr Mansour became upset. Mr Jennings then told Mr Mansour to "get fucked" and walked away and bundied on. After doing so, Mr Jennings returned to speak to Mr Mansour further. There was a brief discussion in which Mr Jennings said to Mansour that an election that had occurred in the union had been unfairly conducted. Mr Mansour responded by saying he was running the show. Shortly after this second exchange, Mr Jennings was approached by two managers and suspended. His suspension continued for ten days till he was asked to attend at offices of the employer. He did so. He denied having then been asked to give his side of the story before being dismissed though he said he was able to volunteer it. At the time of his dismissal he was 58 years old. Mr Jennings was cross examined about what was acceptable behaviour in his employment and why he was in the shop at the time the first discussion took place with Mr Mansour and the language he used. His version of events that he was accosted by Mr Mansour was tested. He accepted that he could not justify his swearing in front of customers. He denied having pushed Mr Mansour in the stomach. He was asked about the second exchange which occurred shortly after the first. He was also asked about the meeting ten days after the incident when he was dismissed. Mr Mansour gave evidence. His version differed from that of Mr Jennings. His account was that he was approached by Mr Jennings. He said "Good morning John" to Mr Jennings who then swore at him after which Mr Mansour asked Mr Jennings to leave the shop. Mr Jennings left in due course, returned and laid hands on Mr Mansour. The confrontation caused Mr Mansour to cry. A witness to the incident, Ms Cossins gave evidence also. It is clear from the evidence given by Mr Jennings that he conceded he swore at Mr Mansour and that he should not have done so in the shop. He maintained, however, that he was accosted by Mr Mansour and that precipitated the whole incident. If Mr Jenning's account was accepted then his swearing would have been in the context of having been accosted or, putting it slightly differently, having been confronted aggressively, by another employee. His account was not inherently implausible. The question that immediately arises in considering the operation of s347, is whether the application brought by NUW was of a character that denied it, as applicant, the immunity afforded by that section. In my opinion it was not. Mr Jenning's account, as I have just said, was not inherently implausible. If accepted it may have justified a conclusion that the behaviour of Mr Mansour had provoked the conduct of Mr Jennings. That may have justified the conclusion that Mr Jenning's dismissal was harsh, unjust or unreasonable particularly having regard to his age. That view might have been taken on the basis that it was harsh and unjust to dismiss an employee who swore in circumstances when he should not have but was provoked into doing so. It was by no means obvious that the application made under s170EA would not succeed at the time it was made: see Construction Forestry, Mining and Energy Union v BHP Refractories Pty Ltd, 17 March 1995, unreported, Wilcox CJ. I am satisfied that s347 precludes an order for costs being made against NUW. I revoke the order for cost made by the Judicial Registrar. I make no order as to costs. Associate: Dated: APPEARANCES Counsel for the Applicant: S Crawshaw Solicitor for the Applicant: Jones Staff & Co Counsel for the Respondent: M Christie Solicitor for the Respondent: Carrs Chambers Westgarth Dates of Hearing: 3 May 1995 Written Submissions Complete: 14 June 1995