100421739

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES PHIL WILKES

CLAIMANT

 -v-

 AIR AUSTRALIA INTERNATIONAL PTY LTD

RESPONDENT

CORAM MAGISTRATE IG BROWN IM

DATE  TUESDAY, 27 JANUARY 2004

CLAIM NO M 252 OF 2002

CITATION NO. 2004 WAIRC 10863

_______________________________________________________________________________ 

Representation

Claimant The Claimant appeared in person.

Respondent Mr D Clarke of Senate Pty Ltd appeared as agent for the Respondent.

_______________________________________________________________________________

Reasons for Decision

(Reasons for decision as to costs)

1         In this matter my reasons for decision were published on 31 October 2003 and the claim in regard to breaches of the Pilots (General Aviation) Awards 1984 was dismissed.  Liberty to apply in regard to costs was granted in the event that costs could not be agreed by the parties within 28 days.

2         On 5 December 2003 I was informed that the parties could not agree costs.  I then made the following orders:

1. That the submissions in relation to the question of costs be made by means of written submissions.

2. That the respondent file and serve such written submissions and a list of authorities relied upon within 14 days hereof.

3. That the claimant file and serve his written submissions and a list of authorities relied upon within 14 days thereafter.

3         I have now received and read the written submissions as to costs from both parties.  The claim by the Respondent, as the successful party, is for $5,940 .71 which is composed of three components:

1. Legal work done by T Darge and Company, Solicitors        - $ 741 .86

2. Legal work done by Alteruthemeyer & Co, Solicitors         -$1,598 .85

3. Services provided by Senate Pty Ltd                                    -$3,600 .00

4         There is a threshold question as to whether an order as to costs should be made in a matter which is brought before this Court by way of the small claims procedure established by section 179D of the Commonwealth Workplace Relations Act 1996.  That section provides:

“179D Small claims procedure

(1) If an action is to be dealt with under this section, subsections (2), (3) and (4) apply in relation to the action.

(2) The procedure is governed by the following conditions:

(a)  the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;

(b)  the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;

(c)  at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;

(d)  a person is not entitled to be represented by counsel or solicitor unless the court permits;

(e)  if the court permits a party to be represented by counsel or solicitor, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

(3) In a case heard in a court of a Territory:

(a)  despite paragraphs (2)(d) and (e), the regulations made under this Act may prohibit or restrict legal representation of the parties; and

(b)  the regulations made under this Act may provide for the representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.

(4) In a case heard in a court of a State:

(a)  despite paragraphs (2)(d) and (e), if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State prohibits or restricts legal representation of the parties-the regulations made under this Act may prohibit or restrict legal representation of the parties to the same extent as that law; and

(b)  if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State allows representation of a party in that court in some circumstances by officials of bodies representing interests related to the matters in dispute-the regulations made under this Act may provide for representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.”

5         Given the express prohibition in paragraph 179D(2)(d) it is my view that the claim for legal fees incurred by the Respondent with Mr Darge and Mr Alteruthemeyer must fail.  It has not been made known when the work done by these solicitors was actually done i.e. before the current proceedings were commenced or after that time but in any event I am satisfied that in the present case the Respondent is prohibited from claiming those costs from the Claimant.  To my knowledge there are no relevant regulations made pursuant to subsections 3 or 4 of section 179D.  No permission was granted by this Court pursuant to paragraph 179D(2)(e).

6         The balance of the claim for costs is in respect of work done by Mr Clarke who, as an employee of Senate Pty Ltd, represented the Respondent company during the two days of hearing.  The amount claimed appears reasonable in view of the length, complexity and variety of issues raised in the context of this claim.

7         However the Claimant opposes the Respondent's request for costs on the basis that the decision of Industrial Magistrate Cicchini in Lopdell v Kulin Industries Ltd  80 WAIG 3287 at 3289-90 should be followed i.e. that the cost of services provided by a registered industrial agent cannot be recovered in this Court.  I accept that proposition and adopt what was said by Mr Cicchini in his detailed reasons.  Given that this Court was exercising Federal jurisdiction when hearing this claim, there is no basis to suggest that costs should be granted to the Respondent.

8         To the extent that the Respondent says these proceedings were vexatious or frivolous I consider there were significant legal and factual issues raised for determination and my published reasons clearly illustrate that there was an arguable case.  The authorities make it clear that it must be a case where, on its face, it is one which no reasonable person could treat as bona fide - see Norman v Matthews (1916) 85 KB 857, and Roden J. in A.G. (Vic) v Wentworth (1988) 14 NSWLR 481 at 491.

9         For all of the above reasons I am satisfied there should be no order as to costs.  I order accordingly.

10     These reasons will again be published by mail.

IG Brown

Industrial Magistrate