DECISION NO:30/97 CATCHWORDS INDUSTRIAL LAW -TERMINATION OF EMPLOYMENT - COSTS ordered against a barrister who filed a Notice of Ceasing to Act in the Court Registry, without informing his client, three days before the listed trial date, thereby causing the adjournment of the trial - Section 347 of the Workplace Relations Act, 1996 does not affect the power of the Court to order costs against persons who are not parties to the proceedings. STATUTORY INTERPRETATION - The words "authorised representative" in Order 45 of the Rules of the Industrial Relations Court of Australia refer to all persons, other than solicitors, who are authorised by section 469 of the Workplace Relations Act, 1996 to appear and represent parties before the Court. This included Counsel. Workplace Relations Act, 1996: s469, s347 Order 45 of the Rules of the Industrial Relations Court of Australia LINDSAY -v- ASSOCIATED FURNISHERS LIMITED NI 1864 of 1996 Before: PATCH JR Place: SYDNEY Date/s of hearing: 17 JANUARY 1997 Date of judgment: 17 JANUARY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1864 of 1996 BETWEEN: DAVID ELLIS LINDSAY Applicant AND ASSOCIATED FURNISHERS LIMITED Respondent MINUTES OF ORDERS 17 January 1997 PATCH JR THE COURT ORDERS THAT: 1. Keith M. Chamberlain pay the costs of the respondent of and incidental to the hearing of this matter which was fixed for 5 December 1996 that were thrown away in consequence of the adjournment of the hearing and the respondent's costs of and incidental to this motion, in the total sum of $6,620.75, within 21 days of today. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1864 of 1996 BETWEEN: DAVID ELLIS LINDSAY Applicant AND ASSOCIATED FURNISHERS LIMITED Respondent REASONS FOR DECISION Delivered ex tempore - revised from the transcript 17 January 1997 PATCH JR On 5 December 1996 this matter was listed for hearing. On the application of the applicant the hearing was vacated. The matter is now listed for hearing in April. The reason that the application to vacate the hearing date was granted was due to the prejudice that the applicant would suffer in appearing unrepresented, in circumstances where his counsel had withdrawn from the matter a mere three days previously, without notifying him of that fact. I find as a fact that that is what occurred. I find as follows: On 2 December 1996 the applicant's counsel, Mr Keith Chamberlain, filed a Notice of Ceasing to Act in the court registry. He did not tell his client that that notice had been filed nor did he tell his client that he was ceasing to act for him. His client, the applicant, only found out that Mr Chamberlain had filed that notice of ceasing to act when a member of the registry staff telephoned the applicant on 3 December 1996. In a short judgment delivered earlier this morning I found that Mr Chamberlain knew of today's proceedings and that he had been properly served with the Notice of Motion and supporting affidavit. I also found as a fact that he had received the Notice of Motion and the supporting affidavit via the DX service but had returned them to the respondent's solicitors. His conduct in not appearing today remains unexplained. Having chosen to absent himself from today's proceedings, without any explanation, Mr Chamberlain, a barrister who frequently appears in this Court, has laid himself open to the orders which the Court is about to make against him. Order 45 Rule 7 of the Rules of the Court governs the withdrawal of a solicitor or an authorised representative from proceedings before the Court. Order 45 Rule 7(1) reads as follows: Where a solicitor or authorised representative acts for a party to any proceeding and afterwards ceases to act, the solicitor or authorised representative may subject to subrule (2) file notice of the change and serve the notice on the parties. Order 45 Rule 7(2) reads as follows: A solicitor or authorised representative must not file or serve notice of a change under subrule (1) without leave of the court unless he or she has not less than seven days before doing so served on the former client notice of his or her intention to file and serve the notice of change. Mr Chamberlain did not serve such a notice on his client, the applicant, at all, let alone within the required seven day period. Nor did Mr Chamberlain have the leave of the Court for short service. Section 469(2) of the Workplace Relations Act 1996 ("the Act") reads as follows: Subject to this and any other act a party to a proceeding before the court in a matter arising under this act may be represented only as provided by this section. Section 469(3) of the Act reads as follows: A party (including an employing authority) may be represented by counsel or solicitor. The Act then goes on to, inter alia, list various other classes of persons, apart from counsel or solicitor, who may appear before the Court. In my opinion, the phrase "authorised representative" as used in Order 45 of the Rules of the Court refers to all persons, other than solicitors, who are authorised by section 469 of the Act, to appear and represent parties before the Court. It therefore includes counsel, such as Mr Chamberlain. As Mr Chamberlain did not tell his client that he was ceasing to act he breached Order 45 of the Rules of the Court. In any event I am satisfied that, quite apart from the Rules of the Court, proper professional conduct required Mr Chamberlain to tell his client that he was ceasing to act. Barristers cannot simply abandon their clients without warning, as Mr Chamberlain did. The direct consequence of Mr Chamberlain's actions was the vacation of the trial date on 5 December 1996 and the consequential incurring of costs by the respondent. Section 347 of the Act has no application in these circumstances, as Mr Chamberlain is not a party to the proceedings. In my opinion, the Court has the power to order costs against persons who are not parties to the proceedings. That power remains unfettered by section 347 of the Act. QUANTUM Solicitors costs and disbursements The respondent claims solicitors costs and disbursements based essentially on a rate of $225 per hour. The disbursements, of course, are not based on an hourly rate but the vast bulk of what the respondent claims for the solicitor's costs and disbursements is actually costs. Costs and disbursements, as claimed, come to a total of $4,778.47. "Disbursements", as I use that word in this judgment, does not include counsel's fees, with which I will deal separately. Nor does it include a claim for the costs of an expert witness, with which I will also deal separately. The areas of work covered by the solicitor's costs are as follows: 1. Preparation for the hearing of 5 December 1996, from 3 December 1996 only. 2. Instructing counsel on 5 December 1996. 3. Matters consequential to the vacation of the hearing date of 5 December 1996. 4. Preparation for today's proceedings. 5. Instructing counsel today. 6. Appearing today, after counsel, with the leave of the Court, left. 7. Matters consequential to today's proceedings (as estimated). I have carefully perused exhibit 5 in these proceedings, which is an affidavit of Ms Wendy Kain, solicitor. In my opinion each item listed in that affidavit as work done was work appropriately carried out. No claim is made other than for costs and disbursements covered by the above list of areas that I have just read out. $225 per hour is not, in comparison with rates charged by commercial firms in the central business district of Sydney, excessive. However, it does not follow from that that the Court will allow costs at a commercial scale. I have already noted that the solicitor's costs date only from and include 3 December 1996. On that date Ms Kain, a partner in the firm representing the respondents, took carriage of the matter. This was in view of Mr Chamberlain's conduct and the possible serious consequences to him. Partners are more expensive than employed solicitors. This is a reflection of their seniority and their experience. At first, I had originally intended to allow only $150 an hour. However, in view of the fact that Ms Kain, a partner, quite appropriately took over the conduct of the matter from 3 December, I intend to allow $175 an hour for solicitor's costs. In my opinion that would be a fair and reasonable rate for these proceedings. It is appropriate to order solicitor's costs at that rate. Rounding off the figures, I propose to allow solicitor's costs and disbursements in the total sum of $3,700. Counsel's fees Counsel's fees are comprised as follows: (1) In connection with the hearing on 5 December 1996, $1,875; (2) As a result of today's proceedings, $500. The preparation for the hearing on 5 December 1996 was no doubt extensive. Much of that has been thrown away. I propose to allow $1,500 for counsel's appearance and preparation on that day. $500 for experienced counsel, as counsel in this case is, to appear in a superior court of record for a contested notice of motion is, in my opinion, reasonable and moderate. I therefore will allow a total sum of $2,000 for counsel's fees. Expert witness's fees A claim is also made for witness's expenses for Mr Michael Samuel, an accountant. I accept that Mr Samuel is an experienced accountant and entitled to charge a proper professional fee for his time spent and thrown away in connection with the vacation of the hearing date on 5 December 1996. A claim is made for 5.25 hours at $240 an hour. In my opinion an appropriate rate would be $175 an hour. Mr Samuel also claims his bridge toll of $2 which, as it was nothing more and nothing less than a direct expense incurred by him in connection with his attendance at court he is entitled to. 5.25 hours at $175 an hour comes to $918.75. I therefore allow witness's expenses in the sum of $920.75. The total, therefore, of costs which I propose to order is reached as follows: Solicitors costs and disbursements $3700.00 Counsel's fees $2000.00 Witness's expenses $920.75 TOTAL: $6620.75 The order the Court makes therefore is as follows: (1) That Keith M. Chamberlain pay the costs of the respondent of and incidental to the hearing of this matter which was fixed for 5 December 1996 that were thrown away in consequence of the adjournment of the hearing and the respondent's costs of and incidental to this motion, in the total sum of $6,620.75, within 21 days of today. I certify that this and the preceding 7 pages are a true copy of the reasons for decision of Judicial Registrar Patch as recorded in the transcript and revised by the Judicial Registrar. Associate: Renee Cauchi Dated: 19 February 1997 APPEARANCES Applicant in person Counsel appearing for the respondent: Mr I Neil