WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00363

DELIVERED : FRIDAY, 2 MAY 2014

FILE NO. : B 189 OF 2013

Applicant

AND

Michael Moloney OF Wildflower Electrical and Refrigeration Services Pty Ltd

Respondent

Catchwords : Industrial law (WA) – Contractual benefits claim – Applicant failed to appear at the hearing – Application that the matter be dismissed – Application for costs and expenses – Principles applied – Exercise of discretion – Equity, good conscience and the substantial merits of the case – Costs  and expenses awarded – Orders issued

Legislation : Industrial Relations Act 1979 (WA) ss 26(1)(a), 27(1)(a),
 27(1)(c), 32

   Fair Work Act 2009 (Cth)

   Industrial Relations Commission Regulations 2005 (WA) regs 24, 26, 37

Result : Orders issued

Representation:

Counsel:

Applicant : No appearance

Respondent : Ms S De Silva

Solicitors:

Respondent : DLA Piper Australia

Case(s) referred to in reasons:

Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26

Hazart Pty Ltd t/a Southern Cross Koala and St Croix Pty Ltd t/a Southern Cross Koala v Mullan (1992) 73 WAIG 51

Reasons for Decision

1          This application for contractual benefits brought by the applicant, Mr Martin, was listed for hearing before the Commission on 26 and 27 March 2014.  On the first day listed to hear the matter, Mr Martin failed to appear.  As a consequence of Mr Martin’s failure to appear, Wildflower Electrical has made two applications. The first application is that the substantive claim be dismissed under s 27(1)(a) of the Act. The second application is for costs and expenses under s 27(1)(c) of the Act, caused by the adjournment. At the hearing on 26 March the Commission made orders for Mr Martin to file and serve an affidavit as to the reason for his failure to appear. Orders were also made requiring Wildflower Electrical to file and serve an affidavit as to costs and expenses incurred in attending the proceedings.

Application to dismiss

2          Wildflower Electrical submitted that there was no good reason for Mr Martin’s failure to appear.  It was submitted that Mr Martin should have been well aware of the dates of the hearing from the notice of hearing sent to both parties.  Also, reference was made to a recent s 32 conference where the dates of the hearing were referred to by both parties. Additionally, in the days leading up to the hearing of the matter, email correspondence passed between the parties, regarding it.

3          In accordance with the Commission’s order, Mr Martin filed an affidavit.  In the affidavit Mr Martin apologises “to all concerned” for his failure to appear on the days listed for hearing. Mr Martin referred to being under acute stress at this time, and that he has been receiving medical treatment accordingly.  Mr Martin has been on medication for this reason.  Additionally, he has been referred to a psychologist. Mr Martin said that the combined effect of his present condition and medication led him to missing the date of the hearing. This is despite Mr Martin saying that he has been working towards the hearing of his claim for some one and a half years.

4          Attached to Mr Martin’s affidavit is a letter from his treating general practitioner Dr McDonnell dated 26 March 2014. Dr McDonnell said that Mr Martin first attended on him on 15 January 2014 with symptoms of extreme stress and insomnia, as a result of a number of issues.  Dr McDonnell saw Mr Martin again on 18 April 2013 and prescribed medication and referred him to a psychologist, as his condition had not improved.  It seems the date of “18 April 2013” referred to in Dr McDonnell’s letter must be in error, as it predates the attendance by Mr Martin on 15 January 2014. Dr McDonnell referred to the combination of extreme stress and medication, leading to Mr Martin forgetting a number of major events such as a child’s recent birthday and him making regular calls to his children, which he has never failed to do in the past year. Dr McDonnell described the failure to attend the hearing as keeping with this same pattern of conduct.

5          I should also note that at about 10.45am on the day of the hearing, my Associate made telephone contact with Mr Martin, as to his whereabouts.  The file note of the conversation refers to Mr Martin telling my Associate that he thought the matter listed was for a telephone conference instead, and not a hearing. Mr Martin was apparently in Dunsborough, in the Southwest of the State at the time.  A file note of a further telephone conversation between my Associate and Mr Martin later on 26 March refers to Mr Martin attending his doctor and being on medication for depression. Additionally, a file note of an earlier telephone conversation between my Associate and Mr Martin on 11 March reveals that Mr Martin was making arrangements to summons witnesses and he was directed to the Commission’s website for this purpose.

6          Based on the affidavit of Mr Martin, the conversations between my Associate and Mr Martin and in the absence of other compelling reasons raised by Wildflower Electrical, I am not persuaded to dismiss the application under s 27(1)(a) of the Act.  Whilst Wildflower Electrical has provided written submissions to the effect that as Mr Martin was an apprentice, he was not, at common law, an employee, that is not of itself, in the absence of submissions from Mr Martin in a hearing of the issues, a basis to support the dismissal of the application.

Application for costs

7         Unlike in the federal jurisdiction under the Fair Work Act 2009 (Cth), where there is a greater capacity to award costs, in this jurisdiction, at least presently, the capacity to obtain costs orders is limited. Section 27(1)(c) of the Act provides:

27. Powers of Commission

 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent;

8         The approach of the Commission to the exercise of discretion under s 27(1)(c) of the Act is well settled. The principle being, it is only in special or extreme circumstances that cost orders will be made: Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26; Hazart Pty Ltd t/a Southern Cross Koala and St Croix Pty Ltd t/a Southern Cross Koala v Mullan (1992) 73 WAIG 51. These cases reflect the general policy of industrial jurisdictions in the past that each party generally bears their own costs and they do not follow the event, as in the civil courts.

9         Wildflower Electrical has set out its costs and expenses incurred in attending the proceedings. Mr Moloney, the principal of Wildflower Electrical is presently based in Karratha.  He had to fly to Perth and arrange hotel accommodation for 25, 26 and 27 March. Also as a sub-contractor, Wildflower Electrical lost income for both dates of the hearing. The loss of income claimed is $1,485. The cost of a flight to Perth from Karratha on 25 March and a return flight on 26 March are claimed in the sum of $714.63.  Accommodation costs for three nights in the sum of $357 are claimed. The evidence of Mr Moloney was that the hotel would not waive the further two nights booked for 26 and 27 March. Claimed also are taxi and meal expenses in the sum of $200. The total costs claimed by Wildflower Electrical are in the sum of $2,756.63.

10      In this case, the merits of Mr Martin’s claim are yet to be heard.  They will be heard on a date to be fixed by the Commission.  As a consequence of Mr Martin’s failure to appear, Wildflower Electrical has incurred substantial costs in travelling to Perth from the Northwest of the State.  Fortunately it seems, Mr Moloney was able to return to Karratha on 26 March and therefore avoided incurring additional costs, by way of further lost income.  Whilst Mr Martin has sought to explain his failure to appear on the dates listed for the hearing of the matter, this has imposed a financial penalty on Wildflower Electrical, without any fault on it.  Also, given that the dates of hearing were only referred to by the parties a short time prior to the dates listed, in a recent s 32 conference and were the subject of exchanges between the parties, it is all the more perplexing as to Mr Martin’s failure to appear, despite the content of the letter from his medical practitioner. There is also some inconsistency between Mr Martin’s affidavit and his conversations with my Associate on 26 March.

11      Mr Martin was given an opportunity to respond to Wildflower Electrical’s application for costs.  He initially submitted on 23 April 2014 that he did not believe that Mr Moloney had lost income as Mr Moloney had stated in the past that he was an employee of Rio Tinto, and could have scheduled a break in his roster around the hearing dates. Mr Martin also submitted that Mr Moloney’s choice of accommodation was his decision and he could have stayed with a friend. Mr Martin also said that he wanted copies of Mr Moloney’s work roster and receipts for expenses.  This is so despite the affidavit of Mr Moloney, with its annexures, being sent by email at the email address used by Mr Martin for communication.  For the purposes reg 26 of the Industrial Relations Commission Regulations 2005, Mr Martin has not nominated an email address for formal service. Accordingly, it was not appropriate for the solicitors for Wildflower Electrical to serve the affidavit by email. Service should have been effected in accordance with reg 24 of the Regulations, that being by hand or pre-paid post.  However from correspondence on the Commission’s file it is clear that Mr Martin has received a copy of the affidavit and annexures.  In accordance with reg 37, the Commission will waive compliance with reg 24 in this instance.

12      Subsequently, on 1 May 2014, Mr Martin, by an email to my Associate, advised that he now considered that Wildflower Electrical should be compensated fully for its costs arising from the adjournment, save for those relating to meals and taxi fares in the sum of $200.  Accordingly, Mr Martin now consents to an order that Wildflower Electrical be awarded costs and expenses in the sum of $2,556.63.   

13      Section 27(1)(c) of the Act is to be applied, as in all aspects of the Commission’s jurisdiction, consistent with s 26(1)(a) which requires the Commission to discharge its jurisdiction and powers in accordance with equity, good conscience and the substantial merits of the case.  In dealing with matters, the Commission is obliged to have regard to the interests of both parties in this matter. This requires the Commission to have regard to interests of not just the employee, but also the employer.  In this case, I consider it would, in all of the circumstances, be unjust to not provide compensation to Wildflower Electrical for the substantial costs incurred by it in attending the proceedings.  Having to travel to Perth for the dates of the hearing also no doubt caused some disruption to Wildflower Electrical’s business. Considering all of the circumstances, and the now consent of Mr Martin, the Commission will order Mr Martin to pay Wildflower Electrical’s costs and expenses in the sum of $2,556.63.