100315476

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CLAIMANT

 -v-

 CARL ANTHONY PERROT & SANDRA LEE PERROTT TRADING AS C & S PERROTT

RESPONDENT

CORAM  MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 15 JANUARY 2003

FILE NO/S M 18 OF 2002

CITATION NO. 2003 WAIRC 07655

_______________________________________________________________________________

Representation

Claimant Mr T Kucera of counsel

Respondent Mr O Moon as agent

_______________________________________________________________________________

Further Supplementary Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         On 7 August, 2002 I handed down supplementary reasons for decision which inter alia addressed the issue of costs.  Having considered the matter I made a decision that costs ought not to be awarded to the Claimant.  An appeal was lodged in relation to that decision and the Full Bench determined that issue. The Full Bench, in its determination made on 12 December 2002, found that I should have exercised my discretion in favour of the Claimant and should have awarded costs to the Claimant as against the Respondents (see CFMEU v Carl and Sandra Perrott T/A C and S Perrott 83 WAIG 17).

2         The matter was remitted back to me and, accordingly, I am now required to consider the issue of costs and, more particularly, the quantum of costs to be awarded in relation to this matter.  In that regard I adopt my earlier reasons and find that it is appropriate for the Claimant to recover profit costs for an employed solicitor.  The authorities previously referred to in my supplementary reasons support that particular approach.  It follows that the only question here, therefore, becomes one of quantum.  In that regard, Mr Moon says that there is nothing to justify an award of costs in excess of $5,200.00 which was the sum initially sought by Ms Peak immediately following my handing down of my decision on the substantive issues in this matter.

3         The case was such that following my handing down of my decision on the substantive issues and following argument in relation to the question of costs and in written submissions to me, the Claimant made a claim for costs which increased the costs claim from that of $5,200.00 to that of $6,800.00.  The basis of the claim for costs of $6,800.00 is set out within the submissions.  Mr Moon, for the Respondents, queries how on one hand the Claimant can seek $5,200.00 and then simply increase it later to $6,800.00, there being no apparent justification for doing so.

4         It is quite apparent from the way in which the issue of quantum of costs was addressed upon my handing down of my decision on the substantive issues that the sum of $5,200.00 was claimed as an approximate amount thought to be appropriate.  Had the Respondent at that time accepted that amount sought by way of costs, clearly that is what the Claimant would have received, however, that claim for costs was not accepted and the Claimant was entitled to fully consider the question of costs, and did so.  In doing so it calculated its costs incurred to be a greater amount of $6,800.00.  As I said earlier, such is set out in the submission filed on 24 July 2002.

5         It is obvious, given the nature of these proceedings and the conduct of these proceedings that the amount claimed, given that the matter has proceeded over a 2 day hearing, is not inordinate.  Indeed, in my view, the amount claimed of $6,800.00 is entirely reasonable.  If one were to compare the costs recovered in the Local Court, for example, for a matter of this type going over 2 days, given the nature of the matter and the number of witnesses called, it could be confidently said that a successful party would recover a greater amount than $6,800.00.  In my view, it is appropriate to make a comparison with the Local Court because of the nature of the provisions as found in section 81CA of the Industrial Relations Act 1979 and the regulations which apply to this particular Court.

6         Accordingly, the only question to be determined before me today is whether the amount which is now claimed in the sum of $6,800.00 is reasonable.  It is obvious that the answer is that it is reasonable, having regard to what I have just said.  Had the Respondents accepted the earlier proposal then it would have exposed itself to that lesser amount of costs, but once the issue of costs became live and continued to remain live the question of the amount sought is simply one of what is reasonable.  As I said earlier, what is reasonable is that which is claimed in the amount of $6,800.00 for the reasons that I have stated and, accordingly, it follows that I should make an order in favour of the Claimant as against the Respondents in that sum.

7         I therefore order the Respondents to pay to the Claimant costs fixed in the sum of $6,800.00.

G Cicchini

Industrial Magistrate

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