SHACKLEY v THE AUSTRALIAN CROATION CLUB LTD [1997] IRCA 134

DECISION NO:134/97 CATCHWORDS INDUSTRIAL LAW - Costs in application for review - Matter remitted by Full Court to single Judge - Whether review instituted vexatiously or without reasonable cause Workplace Relations Act 1996 Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wyndham Lodge Nursing Home Inc v Reader (no 2) (1996) 65 IR 253 Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (1995) 58 IR 275 Imogen Pty Ltd v Anthony Sangwin (unreported, Full Court, Industrial Relations Court of Australia, 20 December 1996) NO. AI 1012 of 1996 SHACKLEY v THE AUSTRALIAN CROATIAN CLUB LTD MOORE J CANBERRA 24 APRIL 1997

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. AI 1012 of 1996 ) ACT DISTRICT REGISTRY ) BETWEEN: JANICE SHACKLEY Applicant AND: THE AUSTRALIAN CROATIAN CLUB LTD Respondent JUDGE: Moore J PLACE: Canberra DATE: 24 April 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application for costs is 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 ) No. AI 1012 of 1996 ) ACT DISTRICT REGISTRY ) BETWEEN: JANICE SHACKLEY Applicant AND: THE AUSTRALIAN CROATIAN CLUB LTD Respondent JUDGE: Moore J PLACE: Canberra DATE: 24 April 1997 REASONS FOR JUDGMENT This judgment deals with costs in an application for review brought by the Australian Croatian Club Ltd ("the Club") under s 377 of what is now entitled the Workplace Relations Act 1996 (Cth) ("the Act"). The matter has been remitted by an order of 17 December 1996 of a Full Court which decided the application for review was a proceeding in a matter: see (1996) 141 ALR 736. Wilcox CJ, with whose reasons von Doussa J agreed, made it plain that in determining whether costs might be awarded, I should determine whether the application for review was instituted vexatiously or without reasonable cause. The application for review arose from a judgment of a Judicial Registrar of 27 February 1995. In order to deal with the threshold question of whether, for the purposes of s 347 of the Act, the application for review was brought vexatiously or without reasonable cause, it is necessary to recount something of the matter's history. Ms Janice Shackley was engaged as a secretary-manager of the Club in January 1994. Her employment was terminated in May 1994 giving rise to an application under s 170EA of the Act. The Judicial Registrar heard that application and determined that the termination of Ms Shackley's employment by the Club has been in contravention of the Act though, in the orders she made, the Judicial Registrar did not specify which provisions had been contravened. However in the Judicial Registrar's reasons, contravention of two sections only were discussed, namely ss 170DF(1)(f) and 170DC. No mention was made of s 170DE(1) in her reasons and nothing was said that suggested a finding had been made that this section had been contravened. The finding that s 170DF(1)(f) had been contravened was based on the acceptance by the Judicial Registrar of evidence of Ms Shackley that she was told by the President of the Club, Mr Bajic, that the real reason for her dismissal was that she was not a person of Croatian descent. Mr Bajic denied the conversation. The Judicial Registrar said: "There is a direct clash between the two main witnesses as to the terms of the conversation". The Judicial Registrar explained in her reasons why she preferred the evidence of Ms Shackley. She said it was based on a weighing of the evidence in relation to the particular conversation, the overall demeanour of both the witnesses, the details with which they gave their evidence and the surrounding circumstances of the employment. The last mentioned matter appears to have been a reference to Ms Shackley's probationary employment, the terms of a reference she was given, a request that she return to employment with the Club after the termination of her employment and the replacement of Ms Shackley by another employee of Croatian descent the following day. The Judicial Registrar's conclusion was expressed in the following terms: "The respondent faces breaches of two sections of the act on the evidence, as I find it. The first of those sections is section 170DC, which requires the employer not to terminate any employee's employment for reasons related to conduct or performance, unless the employee has been given the opportunity to defend herself against the allegations made. There was some attempt in the evidence put for the respondent, to show that that section had been complied. The comments made by Wilcox CJ of this Court in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 126 ALR 233 leave no doubt, in my view, that the evidence in this case falls short of the standard required by Section 170DC, and I find the respondent in breach of that Section. I also find that the respondent is in breach of 170DF(f)(sic), in that I find that the employer terminated the employment for a reason relating to race. I make that finding with some hesitation as I appreciate the consequences which will flow in that finding for the respondent. Nevertheless, having found that I accept the applicant's evidence as to the termination conversation, and being met with a denial of her version of the conversation by the witness for the respondent, it flows from those findings that there is a breach of 170DF(f)(sic)."