POPE -v- MONTEDEEN PTY LTD [1997] IRCA 262

DECISION NO:262/97 INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - termination of employment - COSTS - proceedings instituted without reasonable cause - order against Applicant - requests for discovery causing unnecessary costs - costs ordered against solicitor Workplace Relations Act 1996 s.347 CASES:

Saddington v Oliver (1994) 121 ALR 601

Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62

Kanan and Australian Postal & Telecommunications Union (1992) 43 IR 257

Canceri v Taylor (1994) 1 IRCR 120

Foxcroft v The Ink Group Pty Limited (1994) 1 IRCR 215

Gasso v Foldway Industries Pty Ltd (unreported, IRCA, Parkinson JR, 29 March 1996)

Geneff v Peterson & Others (1996) 19 IR 40

General Steel Industries v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257

Imogen Pty Ltd v Sangwin (1997) 70 IR 254.

D'Antuano v Minister for Health, (unreported, IRCA, Ritter JR, 12 May 1997).

Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199

Geros v Professional Steering & Suspension Centre (unreported, IRCA, Murphy JR, 12 December 1995)

Bengtsson and AMU-FIME Amalgamated Union v Spikles Pty Ltd (unreported, IRCA, Tomlinson JR, 11 December 1995)

Syme v Communitique Pty Ltd (unreported, IRCA, Murphy JR, 29 September 1995)

Bagnara v Casino Canberra (unreported, IRCA, Patch JR, 6 July 1995)

Sandhu and Ors v Pacific Dunlop Tyres Pty Ltd and Goodyear Tyres Pty Ltd, (unreported, IRCA, Parkinson JR, 2 June 1995) POPE -v- MONTEDEEN PTY LTD No. VI-1610 of 1996 Ryan JR Melbourne 20 August 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1610 of 1996 B E T W E E N : DAVID JOHN POPE Applicant AND MONTEDEEN PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 20 August 1997 THE COURT ORDERS: 1. In respect of the claim of unlawful termination of employment heard on 15 and 16 August 1996, 9 September 1996 and 28 November 1996 and determined 4 August 1997 the Applicant is within 28 days to pay the Respondent costs in the sum of $9,433.50. 2. In respect of requests for discovery made by the solicitors for the Applicant on 19 November 1996 and 21 November 1996 and 28 November 1996 in circumstances outlined in the affidavit of Debra Foulkes sworn 1 August 1997 and in Exhibits DF1 to DF6 of that affidavit and in respect of non-attendance of the Applicant or the Applicant's solicitors at judgment on 4 August 1997, the Applicant's solicitor is within 28 days to pay costs to the Respondent in the sum of $906.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Court Rules FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1610 of 1996 B E T W E E N : DAVID JOHN POPE Applicant AND MONTEDEEN PTY LTD Respondent Ryan JR Melbourne 20 August 1997 REASONS FOR JUDGMENT On 4 August 1997 the Applicant's claim for a remedy in relation to alleged termination of employment by the Respondent was dismissed. The application had been heard over four days in August, September and November 1996. Mr Devries appeared as counsel for the Respondent and Mr Martin appeared as counsel for the Applicant on the first three days of the trial. Mr McDonald of McDonald Murholme, the Applicant's solicitors, appeared for the Applicant on the last day of the trial. At the commencement of the trial and at the commencement of the last day of the trial Mr Devries gave notice that the Respondent intended to apply for costs if the application was dismissed. On the final day of the trial he also gave notice of an intention to apply for costs against the solicitors for the Applicant in respect of certain additional demands for discovery made by the Applicant's solicitors on 19th, 21st, and 28 November 1996, that is after the third day of the trial and 1, 8 and 10 days before the last day of the trial. Mr Devries made his applications for costs on 4 August 1997 in the presence of Ms Capasso of McDonald Murholme. At the conclusion of the hearing I indicated that an initial assessment of the evidence suggested that the employment relationship was not that of employer/employee and that the employer did not initiate the ending of the relationship, whatever that relationship might have been. The final judgment stated that it was not necessary to make a finding on whether the Applicant acted as an employee or a consultant because of a finding that the Applicant had failed to demonstrate that the relationship with the Respondent, if it were a relationship of employer/employee, was ended by the Respondent at the initiative of the Respondent as employer. At that time I stated "the overwhelming weight of the evidence is that the Applicant brought the relationship to an end. In the circumstances, the Applicant's claim lacks jurisdiction and must be dismissed". Despite statements to that effect, that is statements that it was not necessary to make a finding for or against a relationship of employer and employee, and indeed it was not necessary, the Court did in effect find that the relationship lacked jurisdiction, not only because any purported employment was not terminated at the initiative of the employer but also because the Applicant was not an employee. In Saddington v Oliver (1994) 121 ALR 601 at 603, Gray J stated: