DECISION NO:139/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - APPLICANT NOT PRESENT ON DATE FIXED FOR HEARING - COSTS Workplace Relations Act, 1996, ss 347 170EA EHA ROD PINTOS-LOPEZ -V- A C T SOCIETY FOR THE PHYSICALLY HANDICAPPED No. AI 1141 of 1996 CORAM: LINKENBAGH JR PLACE: CANBERRA DATE: 18 APRIL 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1141 of 1996 ROD PINTOS-LOPEZ Applicant A C T SOCIETY FOR THE PHYSICALLY HANDICAPPED Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra Date: 18 April 1997 MINUTES OF ORDERS THE COURT ORDERS: (1) that the application is dismissed (2) that the applicant pay the respondent's costs pursuant to section 170EHA of the Act in a total sum of $2875. Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1141 of 1996 ROD PINTOS-LOPEZ Applicant A C T SOCIETY FOR THE PHYSICALLY HANDICAPPED Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra Date: 18 April 1997 REASONS FOR JUDGMENT Delivered ex tempore and revised from the transcript This application under section 170EA of the Workplace Relations Act, 1996 is listed for hearing today and the applicant is not present to prosecute his application. Today's hearing date was fixed at a directions hearing on 16 January 1997. On that day Mr Gabbedy appeared for the applicant and Mr Gath for the respondent. On 11 April Mr Gabbedy's firm, Gary Robb and Associates, withdrew their appearance. I am informed today by Mr Nicol that the applicant did not appear at the conciliation conference although he was represented by a solicitor, and that this week Mr Nicol contacted Mr Gabbedy and was informed that Mr Gabbedy had withdrawn because he could obtain no instructions from the applicant. Mr Nicol contacted the applicant directly by telephone this week at a number provided by Mr Gabbedy and confirmed today's hearing date with him and was informed by the applicant that he intended to proceed. On that basis the respondent has gone to some considerable and detailed lengths to have the matter prepared for hearing and to bring along its witnesses today. Mr Nicol informed the Court that two of the witnesses are handicapped people whose preparation for attendance today has required, in one case, the involvement of an advocate and certainly has involved the efforts of persons employed by the respondent in assisting those witnesses in their preparation for attendance at Court today. I am also informed that there are other witnesses for the respondent whose time has been taken up in being prepared for the hearing and in attending Court today. Further there has been a subpoena issued which has involved, of necessity, expense to the respondent. The respondent has instructed Mr Nicol to appear and he has prepared the matter for hearing. No evidence has been taken, however from what the Court has been told it would appear that the costs and expenses sought by the respondent are, in all the circumstances, reasonable. It is not appropriate for section 347 of the Act to be applied as there is no evidence on which the Court could be satisfied that the requirements of section 347 have been fulfilled. However, under section 170EHA, if the Court is satisfied that a party to the proceeding has caused any other party in the proceeding to incur costs because of an unreasonable act or omission of the first mentioned party in connection with the conduct of the proceeding following the referral of the matter to the Court by the commission, the Court may order the first mentioned party to pay all or part of the costs incurred by that other party. Quite clearly the applicant's failure to attend today, following on a conversation which he had on the telephone with Mr Nicol this week, has caused the respondent to incur expense, and the Court is satisfied that the applicant is guilty of an unreasonable act in that regard. The costs sought by the respondent total $2875. $820 is claimed for witness expenses relating to a support worker, residential director, executive director, a witness who is a disabled person, and an advocate employed to assist that person. In addition to that there is $55 for the costs of issuing the subpoena, and Mr Nicol seeks $2000 for professional costs. It may be that that amount sought for professional costs is perhaps at the higher end of the scale, but given the nature of the proceedings and the unusual difficulties which no doubt the preparation of the matter has involved because of the nature of the constitution of the respondent and because of the particular needs of the witnesses, I think that it is reasonable that the Court be satisfied that Mr Nicol has well earned $2000 by way of professional costs. The Court therefore orders: (1) that the application is dismissed (2) that the applicant pay the respondent's costs pursuant to section 170EHA of the Act in a total sum of $2875. I certify that this and the preceding page are a true copy of my Reasons for Judgment Judicial Registrar Linkenbagh Date: 30 April 1997 The Applicant did not appear and was not represented Solicitor for the Respondent: Mr I J Nicol Blake Dawson Waldron