D'ANTUONO v MINISTER FOR HEALTH [1997] IRCA 143

DECISION NO:143/97 CATCHWORDS INDUSTRIAL LAW - determination of COSTS prior to review of a decision of a Judicial Registrar Reed v Blueline Cruises Ltd unreported, IRCA Library No. 960571, Moore J, 26 November 1996 Soto v Cecil Bros & Suburban Pty Ltd. unreported, IRCA 38/97, R.D. Farrell JR, 18 February 1997 Wilkinson and Wilkinson v Cleo's Unitisation, unreported, IRCA 82/97, Moore J, 27 February 1997 ANTONIO D'ANTUONO -v- MINISTER FOR HEALTH WI95/2574 Before : RITTER JR Place : PERTH Date of Judgment : 23 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 2574 of 1995 B E T W E E N: ANTONio D'ANTUONO

Applicant

A N D:

MINISTER FOR HEALTH

Respondent

MINUTE OF ORDERS 23 APRIL 1997 PERTH RITTER JR THE COURT ORDERS THAT: 1. The respondent's application for costs is to be determined, pending the review of the decision made on 17 September 1996. 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 ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WI 2574 of 1995 B E T W E E N: ANTONIO D'ANTUONO Applicant A N D: MINISTER FOR HEALTH Respondent REASONS FOR DECISION 23 APRIL 1997 RITTER JR The applicant to these proceedings filed an application pursuant to section 170EA of the Workplace Relations Act 1996 (the "Act") seeking a remedy in respect of the termination of his employment. The application was dismissed by me on 17 September 1996. On that date the respondent foreshadowed the making of an application for costs. Programming orders were made for the filing of affidavits and submissions with respect to the application. On 10 October 1996, the respondent filed an affidavit of Mr Lundberg, the solicitor who had represented the respondent, and written submissions in support of the application for costs. A bill of costs in support of the respondent's application was filed on 24 October 1996. The applicant filed submissions against the application for costs on 24 October 1996. In the meantime, the applicant filed an application under section 377 of the Act for a review of my dismissal of the application. As I understand it, the review is to be heard by a Judge of the Court in August 1997. On 21 January 1997 there was a telephone directions hearing before Richardson DR in relation to the review proceedings. The court record contains the note that the parties were advised that the "hearing (sic) of application for costs at first instance would be delayed until after the review was heard". Following this, the respondent's solicitor wrote a letter to Richardson DR dated 6 February 1997. The letter said in part:- "I confirm that, during the course of the telephone directions hearing held on 21 January 1997, you advised the parties that Judicial Registrar Ritter was not in a position at that stage to provide a final decision in relation to the costs application filed by the respondent. I also confirm that you referred both parties to the recent decision of the Court in Reed v Blueline Cruises Ltd. (unreported, IRCA Library No. 960571, Moore J, 26 November 1996). In light of the comments of His Honour Justice Moore in that decision, I understand that the Judicial Registrar has foreshadowed that no decision will be made in relation to the respondent's costs application until the final resolution of the review proceedings." This narrative does not accurately record my position at or prior to 21 January 1997; however, this is immaterial to the present issue. The letter sought a decision from the Court on whether the respondent's costs application could be determined notwithstanding the decision in Reed and the pending review. The letter made some submissions in support of the request. After I became aware of this letter, I requested that the Court write to the applicant's solicitor requesting within 14 days, any submissions on whether the costs application should be determined before the review. The applicant's written submissions were filed on 19 March 1997. The applicant submitted that I ought not determine the costs application pending the review. The submissions were to the effect that Reed had enunciated a "rule" that costs applications ought not be determined by a Judicial Registrar pending a review of their decision on the substantive application. The applicant relied on the Reed decision and also the decision of Soto v Cecil Bros & Suburban Pty Ltd, unreported, IRCA 38/97, RD Farrell JR, 18 February 1997. The purpose of this judgment is to decide whether I ought determine the costs application despite the fact that the review application has been filed and is pending. Reed was a case in which a Judicial Registrar dismissed an application under section 170EA of the Act on the basis that the provisions of Division 3 of Part VIA of the Act had no application to Reed's employment. The Judicial Registrar also ordered that Reed pay the respondent's costs. The issue of whether the provisions of Division 3 applied to the employment of Reed turned on the question of whether he was a casual employee in the terms of Regulation 30B of the Industrial Relations Regulations. Reed applied for a review of the decision of the Judicial Registrar. The review was heard by Moore J. Moore J made a declaration that the employment of the applicant was not as a casual employee for the purposes of Regulation 30B. His Honour otherwise remitted the application to a Judicial Registrar for determination. For present purposes, the relevant paragraph of His Honour's judgment was at page 16, as follows:- "In my opinion, Reed's employment was not as a casual. Accordingly, he is not excluded from the operations of the relevant parts of Division 3 of Part VIA of the Act. An order requiring Reed to pay the costs of the company should not, in my view, have been made at least at the time it was. The application does not, to this point, have the characteristics of an application to which the provisions of section 347 would apply." Section 347 of the Act provides that generally, a party to a proceeding in a matter under the Act shall not be ordered to pay costs unless the proceeding was instituted vexatiously or without reasonable cause. The submission of the applicant is that the contents of the above-quoted paragraph have the effect that a Judicial Registrar ought not to make an order for costs pending a review. Presumably, in support of this submission the applicant relies on the comment by His Honour that costs should not have been ordered at the time that they were. The applicant also cites the decision of Soto. In this decision, R.D. Farrell JR apparently took the view, relying on Reed, that a costs application should not be decided by a Judicial Registrar pending a review by a Judge. In my opinion, Reed is not authority for this proposition. If Soto is in conflict with my opinion, then I respectfully differ from the view of R.D. Farrell JR. In my opinion, the effect of what Moore J said in Reed, in the paragraph quoted above, is that the Judicial Registrar ought not to have made an order for costs at the time that s/he did, because the order was based on an erroneous decision, that Reed was not a casual employee under the Regulations. As the finding which the Judicial Registrar ought to have made was that Reed was not an employee excluded from the operation of the relevant parts of the Act, it could not be said that his application, at that time, was without reasonable cause. In my opinion, the reference to time in the second sentence of the paragraph quoted above, is simply a reference to the time up to and including the decision on the question of whether the relevant parts of the Act had application to Reed's employment. As at that stage of the proceedings, the application could not be characterised as vexatious or without reasonable cause. This was because the Judicial Registrar ought to have found that Reed was not an excluded employee for the purposes of the Act. The reference by His Honour to the application not having the characteristics of a section 347 application "to this point" indicates in my opinion that His Honour thought it was at least possible that, for reasons which may later emerge, the application may be proved to be without reasonable cause or vexatious. In my opinion, His Honour was doing no more than indicating that this was a possibility. His Honour did not determine, in my opinion, that it was inappropriate per se for a Judicial Registrar to determine a costs application, either at all or when a review is pending. Indeed, His Honour did not specifically discuss the situation of whether a Judicial Registrar should determine a costs application when a review is filed and awaiting hearing. There is nothing in the Act which would justify an absolute circumscription of the powers of a Judicial Registrar to order costs when a review is pending. Also, such a "rule" would have difficulties in application. Ordinarily, an application for costs is made and determined upon the handing down of a decision. The "rule" suggested by the applicant's submission would generally mean that no costs application could be determined pending a decision by an unsuccessful applicant on whether to apply for a review of the decision of the Judicial Registrar. This would mean that determining an application for costs would have to await at least the 21-day time period permitted for filing an application for review. The matter is complicated further by the fact that the Court may allow an extension of the 21-day time period. A rule of the type submitted would mean a respondent may make an application for costs by notice of motion filed on the 22nd day after the dismissal of an application, only to have the costs application effectively stayed by a later order for an extension of time within which to file an application for a review. These factors all suggest that there should be no "rule" of the type submitted by the applicant. This is not to say that there may not be cases where it would be appropriate to defer consideration of a costs application pending a review. It is merely to record that in my opinion, there are cogent reasons which support the view that there is no general rule of the type submitted. My opinion on this issue is fortified by the more recent decision of His Honour in Wilkinson and Wilkinson v Cleo's Unitisation, unreported, IRCA 82/97, 27 February 1997. That decision involved an application for a review of a decision by a Judicial Registrar to award costs against Mr and Mrs Wilkinson in proceedings brought by them under section 170EA of the Act. The Judicial Registrar determined that the proceedings were instituted without reasonable cause. At page 2, His Honour said that the review was a hearing de novo and it was necessary for him to determine whether costs should be ordered because the application was brought without reasonable cause. Nowhere in His Honour's decision does he indicate that a Judicial Registrar ought not to determine costs applications, if and when they are made, at the time of a dismissal of an application under section 170EA, or wait to see if a review is filed before making such a determination. In my opinion, if an application for costs is made and pending when an application for a review of the decision of the Judicial Registrar is filed, the Judicial Registrar must determine, with the assistance of the parties, whether it is appropriate to determine the application for costs. Often it may be that there is no reason why the Judicial Registrar ought not do so. If a costs application is successful, it will be a separate question as to whether it is appropriate to order a stay of execution of the costs order. In this case, there is nothing on the information before me which provides any valid reason why I ought not determine the costs application pending the review. Accordingly, this is what I propose to do in a later judgment.