100421779

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CAROL PENN

APPLICANT

 -v-

 PATRICIA EDWARD; VERSCHUER EDWARD, BARRISTERS & SOLICITORS

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE MONDAY, 8 MARCH 2004

FILE NO/S APPLICATION 1194 OF 2003

CITATION NO. 2004 WAIRC 10887

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Catchwords Industrial law (WA) - Termination of employment – Alleged contractual entitlements – Application for costs brought by respondent upon notice of discontinuance being filed by the applicant – Costs by way of disbursements ordered – Industrial Relations Act 1979 (WA) s 27(1)(c).

Result Order issued.

Representation

Applicant Mr D Clarke as agent

Respondent Ms P Edward of counsel

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Reasons for Decision

(Ex Tempore)

1          The applicant, by notice in these proceedings, seeks leave to discontinue the substantive application.  It is common ground that the application to discontinue the proceedings was filed on 4 March 2004, with the substantive application due to be heard by the Commission today, on 8 March 2004. 

2          In response, the respondent brings an application for costs, on the basis that it submits that the applicant's claim is, in effect, frivolous and vexatious and had no reasonable prospect of success. 

3          Having considered the matter, in particular in light of the prior conduct of the applicant in failing to comply with directions of the Commission for at least a period of some three months plus, the lateness of the applicant in seeking leave to discontinue the application, and also in light of the fact that the Commission has by order removed the applicant's witness statement from the Commission file on the grounds that it contains scandalous material, considers that in the circumstances there ought be some recompense to the respondent. 

4          However, given the limits on the Commission's powers as to costs in s 27(1)(c) of the Industrial Relations Act 1979 (WA), which, regrettably in the present circumstances, precludes the Commission making orders for costs and expenses for legal practitioners and paid agents, which in my opinion is a matter which ought be reviewed by the parliament in this State, costs claimed by the respondent, save for disbursements in the sum of $48.40, are not in any event, able to be recovered. 

5          Whilst Ms Edward is appearing as the principal of the respondent, she does so, in my opinion, as a legal practitioner, and therefore any costs in respect of her time as a practitioner, albeit as the principal of the respondent, are not amenable to an order for costs in this jurisdiction, which, as I say, is in the circumstances, a matter of some regret, and which ought in my opinion, as I have already said, be brought to the attention of the parliament. 

6          Nonetheless, in the circumstances what the Commission proposes to do is order that the applicant pay to the respondent costs by way of disbursements pursuant to the schedule of respondent's costs handed to the Commission this morning, in the sum of $48.40, within seven days.

7          In other respects the application be and is hereby discontinued by leave.