FEDERAL COURT OF AUSTRALIA

Electrolux v Australian Workers’ Union [2001] FCA 1882

COSTS – where application for interlocutory relief granted – whether proceeding vexatious or without reasonable cause

Workplace Relations Act 1996 (Cth) ss 170NF; 170NC; 347

Conciliation and Arbitration Act 1904 (Cth) s 197A

Federal Court of Australia Act 1976 (Cth) s 43

Howard v Cummins (1988) 27 IR 109 distinguished

Thompson v Hodder (1990) 21 FCR 467 applied

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 referred to

Crozier, in the matter of an application for Writs of Certiorari & Mandamus against the Australian Industrial Relations Commission [2001] FCA 1665 referred to

Construction, Forestry, Mining & Energy Union v Employment Advocate [2001] FCA 1767 referred to

ELECTROLUX HOME PRODUCTS PTY LTD (ACN 004 762 341) v AUSTRALIAN WORKERS' UNION & ORS

S 182 OF 2001

MARSHALL J

MELBOURNE

24 DECEMBER 2001

THE COURT ORDERS THAT:

1. The application of the second respondent for costs be refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 19 October 2001, the applicant, Electrolux Home Products Pty Ltd (“Electrolux”), filed an application in the South Australia registry of the Court. The application sought relief which included the imposition of penalties upon the respondents pursuant to s170NF of the Workplace Relations Act 1996 (Cth) (“the Act”) in relation to an allegation that the respondents had breached s170NC of the Act.

2                     The application was supported by affidavits sworn by Ms Carmen Baker, the Human Resources Manager of the Cooking Plant division of Electrolux at Dudley Park in South Australia and Mr Colin Thomas the Manufacturing/Engineering Manager at Dudley Park. Those affidavits referred to industrial action being undertaken by members of the first and second respondents on 17 October 2001.

3                     An application for an interlocutory injunction was heard by O’Loughlin J on 19 October 2001. His Honour made an interlocutory order prohibiting the respondents from engaging in industrial action at Dudley Park. O’Loughlin J also ordered that the hearing of the substantive proceeding be expedited.

4                     On 7 November 2001, the matter was listed for hearing at 10.15 am on 13 November 2001 in Adelaide. On 8 November 2001, the second respondent filed its notice of objection to certain evidence given in the affidavits of Ms Baker and Mr Thomas. Also on 8 November 2001 Electrolux filed a notice of discontinuance. The matter was listed for mention on 12 November 2001, at which time the Court made orders for the receipt of written submissions on the application by the second respondent for costs against Electrolux. The second respondent filed its written submissions on 3 December 2001. Electrolux filed its written submissions on 17 December 2001.

5                     The second respondent submitted that costs should be awarded against Electrolux because it instituted the proceeding vexatiously or without reasonable cause; see s347(1) of the Act. The second respondent acknowledged that “mere discontinuance of a proceeding will not necessarily result in an inference being drawn that proceedings were commenced vexatiously or without reasonable cause”. However, the second respondent submitted that:

“… where there has been:

(a)               a failure to call any evidence in support of relief sought; and

(b)               a failure to call evidence or otherwise explained [sic] the reasons for discontinuance

the Court will readily draw an inference that the proceedings were initiated without reasonable cause.”

6                     In support of this submission reliance was placed on the judgment of Keely J in Howard v Cummins (1988) 27 IR 109 (“Howard”) at 111-112.

7                     In Howard costs were sought against a prosecutor who decided not to call evidence in support of information which he had laid against the defendant. At 111, Keely J said that:

“The court is faced with simply these facts: charges were laid in June last year; the prosecutor has decided that no evidence is to be called in support of any of those charges; no reason has been put forward for that decision and no evidence has been called before the court as to why the prosecutor has so decided; no adjournment has been sought to enable any such evidence to be called.

Now, in those circumstances I infer, applying the civil onus of proof, that the proceedings were instituted without reasonable cause within the meaning of s197A of the Act. In each of the three matters the prosecutor will be ordered to pay the costs of the defendants.”

8                     Keely J’s reference to s197A was a reference to s197A of the Conciliation and Arbitration Act 1904 (Cth) (“the C & A Act”), a predecessor provision to s347 of the Act.

9                     At 112 His Honour said that:

“Under s197A a party who has instituted proceedings without reasonable cause may be ordered to pay costs; in my opinion the section shows that the intention of the legislature – notwithstanding the limitation it placed upon the court’s power to make an order for costs – was that such a party may be – and, subject to the court’s discretion, normally shall be – ordered to pay costs if he has instituted “the proceeding, vexatiously or without reasonable cause”. If Parliament so intended it is unlikely that it intended that a prosecutor who called no evidence in support of his charges in a criminal case might avoid that result by refraining from giving any explanation to the court as to why he had decided not to call any evidence in support of the allegations.”

10                  In my opinion the circumstances of this case differ markedly from those in Howard. Howard involved a criminal proceeding where no evidence had been tendered to the Court. In the instant circumstances, O’Loughlin J heard an application for interlocutory relief from 4.54 pm on 19 October 2001 until 7.17 pm that evening. The application for interlocutory relief was opposed. O’Loughlin J’s reasons for judgment have not been published, but I have no reason not to infer that his Honour applied the usual tests for the grant of interlocutory relief. The first test that must be overcome before interlocutory relief will be granted is to establish that there is a serious issue to be tried. It is difficult to envisage how an application can be said to have been instituted vexatiously or without reasonable cause if a judge of this Court has determined that the application discloses a serious issue to be tried. It is also incorrect to say, as the second respondent submits, that Electrolux has presented no evidence to the Court. The affidavits of Ms Baker and Mr Thomas did contain evidence that was before the Court at the interlocutory stage, remained before the Court for the programmed trial and were the subject of evidentiary objections in preparation for the trial.

11                  As was made clear in Thompson v Hodder (1990) 21 FCR 467 at 470 by a Full Court of this court:

“…an applicant who has the benefit of the protection of s347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances.”

12                  In Thompson, reference was made to Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 (“Heidt”) at 272 where Northrop J said of s197A of the C & A Act that:

“The policy of s197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.”

It should be noted that the above passage from Heidt was recently cited with approval by a Full Court in Crozier, in the matter of an application for Writs of Certiorari & Mandamus against the Australian Industrial Relations Commission [2001] FCA 1665 at [10] and [12], per Gray, Branson and Kenny JJ. See also Construction, Forestry, Mining & Energy Union v Employment Advocate [2001] FCA 1767 at [4] per Lee, Finn and Merkel JJ.

13                  I do not consider that the application made by Electrolux was an abuse of the process of the Court. That is so notwithstanding that the second respondent contends that the third respondents were not served with the application. That fact, which I assume to be true, does not undermine the validity of the proceeding before the Court on 19 October 2001 where Electrolux sought injunctive relief against the first and second respondents. Further, a letter sent by Ms Baker to the third respondents urging them to return to work in compliance with the Court’s orders cannot affect the question whether the proceeding was instituted without reasonable cause, given the involvement of two other parties (i.e. the first and second respondents).

14                  Section 347(1) of the Act limits the power of the Court under s 43 of the Federal Court of Australia Act 1976 (Cth) to order costs against a party in circumstances where the applicant instituted the proceeding vexatiously or without reasonable cause. Having regard to the foregoing I do not consider the second respondent has established on the balance of probabilities that Electrolux instituted the application in this proceeding vexatiously or without reasonable cause. The costs application is refused and the file in this matter will now be closed.

15                  The order of the Court is:

1. The application of the second respondent for costs be refused.

Associate:

Dated: 24 December 2001