IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NO. QI 1330/95 QI 1331/95 QI 1332/95 QI 1333/95 QI 1334/95 QI 1364/95 BETWEEN: COSCO HOLDINGS PTY LTD Applicant AND THU THI VAN DO LAN NGOC THI QUAN HAHN HUU NGUYEN THAO NGOC HOANG LOAN ANH NGUYEN THANH DUC HUA Respondents Madgwick J Sydney 9 July 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applicant pay to the respondent Mr Hanh Huu Nguyen the sum of eleven thousand two hundred and thirty three dollars and ninety seven cents ($11,233.97), being ten thousand dollars ($10,000) plus interest thereon up to judgment calculated at 8 per cent per annum for the period 15 December 1995 to 30 June 1997. 2. The applicant pay to the respondent Mr Thao Ngoc Hoang the sum of seven thousand eight hundred and sixty three dollars ($7,863), being seven thousand dollars ($7,000) plus interest thereon up to judgment calculated at 8 per cent per annum for the period 15 December 1995 to 30 June 1997. 3. The applicant pay to the respondent Ms Lan Ngoc Thi Quan the sum of ten thousand six hundred and seventy two dollars ($10,672) being nine thousand five hundred dollars ($9,500) plus interest thereon up to judgment calculated at 8 per cent per annum for the period from 15 December 1995 to 30 June 1997. 4. The applicant pay to the respondent Ms Loan Ahn Nguyen the sum of eleven thousand four hundred and fifty dollars and forty cents ($11,450.40). 5. The applicant pay to the respondent Ms Thu Thi Van Do the sum of eleven thousand four hundred and fifty dollars and forty cents ($11,450.40). 6. (a) The applicant reinstate the respondent Mr Thanh Duc Hua by appointing him to a position on terms and conditions no less favourable than those on which he was employed immediately prior to the termination of his employment; (b) The applicant pay to Mr Hua the sum of forty three thousand five hundred and thirty four dollars and forty cents ($43,534.40) representing the remuneration lost because of the said termination. 7. (a) Upon payment within 14 days to the Commissioner of Taxation of any amounts bona fide believed by the applicant to be so payable on account of tax in respect of the said awards of compensation, and the filing and service of evidence thereof; and (b) payment within that period of the balance of the said awards into Court (for payment out to the relevant respondent), the applicant shall have credit against the respective amounts awarded for such taxation deductions. 8. The compensation awarded to the respondents is to be paid within 14 days of this Order. 9. The appellant pay the respondents in each action their costs of and incidental to this review to be agreed or taxed. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NO. QI 1330/95 QI 1331/95 QI 1332/95 QI 1333/95 QI 1334/95 QI 1364/95 BETWEEN: COSCO HOLDINGS PTY LTD Applicant AND THU THI VAN DO LAN NGOC THI QUAN HAHN HUU NGUYEN THAO NGOC HOANG LOAN ANH NGUYEN THANH DUC HUA Respondents Madgwick J Sydney 9 July 1997 SUPPLEMENTARY REASONS FOR JUDGMENT HIS HONOUR: Payment of interest up to judgment on award of compensation In other Australian courts, the payment of interest up to judgment is now a common feature of those kinds of damages awards which may be regarded as comparable to compensation under s 170EE(2) of the Workplace Relations Act 1996 (Cth). In my view, where the payment of interest is sought as part of such compensation, on a sum assessed on the same principles as an award of damages, it should generally (subject to the "cap" provided by s 170EE(3)) be allowed. The justice of a prima facie award of interest was recognised by the enactment of s 482 of the Act (the terms of which reflect s 51A of the Federal Court of Australia Act 1976 (Cth), added in 1984; see also Nella v Kingia Pty Ltd (1985) 11 FCR 281). There is nothing in subs (3) of s 482 which is germane. To have been kept out of the money one would have earned before trial, or which is otherwise due for past loss and damage occasioned by the unlawful termination of one's employment, is in my opinion a situation naturally and reasonably calling for recompense. I will award interest. Costs The respondents seek an order for the costs of the review, despite the restrictions imposed by s 347 of the Act. Where a legal principle has recently been decided by the court, even by a Full Court, as in Kenefick v Australian Submarine Corporation (No 2) (1996) 65 IR 366, a party who seeks to have the point reconsidered where there is a reasonably arguable case for doing so does not, in my view, unreasonably institute proceedings in which that party's success necessarily involves such a reconsideration. However, it is otherwise where such a party does not have a reasonably arguable case that the decision in question is wrong. Such, in my opinion, is the case here. As I said in my principal judgment, Kenefick is clear authority that a valid reason to terminate the services of a given number of employees is not necessarily a valid reason to terminate the services of that number of particular employees. Cosco had no reasonable argument for distinguishing Kenefick from the present case. Nor, in my view, is it reasonably arguable that Kenefick is wrong. Doubtless, this is why no reasoned argument was presented before me by senior counsel for the applicant as to why Kenefick, or my exegesis of it in Westen, was wrong. On the facts in this case, the applicant for review could not have succeeded if the law is as stated in Kenefick. There was a substantial challenge to the credit of its principal and essential witness, Mr Coco. On the applicant's own approach to a review "on the papers" in such a case (which approach is explained in my principal judgment), the applicant would be bound to fail, because Kenefick held that an employer bears the onus of justifying as "valid" the selection of particular employees for termination, as well as selection of the number of employees to be terminated. Accordingly, I think that the review application was instituted unreasonably and that I should award each of the respondents his/her costs of the review. I certify that this and the preceding page is a true copy of the Reasons for Judgment of the Honourable Justice Madgwick. Associate: Date: 9 July 1997 Counsel for the Applicant: Mr Cooke, QC Solicitors for the Applicant: Minter Ellison Counsel for the Respondents: Mr Amerena Solicitors for the Respondents: Quinlan Miller & Treston