100315823

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM  MAGISTRATE G CICCHINI IM

DATE THURSDAY, 12 DECEMBER 2002

CLAIM NO/S M 175 OF 2001

CITATION NO. 2003 WAIRC 07860

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Representation

Claimant   Ms S Northcott of counsel

Respondent   Mr J Brits of counsel

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Supplementary Reasons for Decision

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

1         Application is made by the Claimant for the imposition of a penalty and, further, the payment of costs by the Respondent.  The Claimant seeks that the penalty be paid to it.

2         In determining this matter, I make the following observations.  Firstly, I take the view that there has been a wilful disobedience of Commissioner Wood's order.  The acts of the Respondent were designed to circumvent the order.  It was a deliberate act, in my view.  It is not surprising, therefore, that the Claimant has taken the action that it has in pursuing this matter to the end.  In my view, it is important that the integrity of orders of the Commission be protected, and the orders of the Commission be upheld.  By its actions the Respondent, in my view, simply disregarded the order of Commissioner Wood.  The breach is flagrant and wilful and deserving of punishment to the extent that a deterrent penalty is required.  Accordingly, a caution would be inappropriate.

3         Having said that, the Claimant calls for the imposition of the maximum penalty available to me in the sum of $1000.  In my view that would be inappropriate.  The maximum penalty is to be reserved for the worst of the cases, particularly in circumstances where there have been prior breaches.  There is no evidence of prior breach in this case.

4         Accordingly, this matter is no different to other matters in which sentencing takes place, and that generally occurs, of course, within the criminal sphere.  Those considerations are equally applicable here and ought to be taken into account.

5         Taking those matters into account, I take the view that a penalty of $500.00 is the appropriate penalty here, particularly having regard to the lack of record of the Respondent.  The $500.00 penalty is more than would normally be imposed for a first offender, but in my view is warranted having regard to the wilful disobedience of the Commissioner's order and the lack of remorse displayed by the Respondent.  The penalty should act as a deterrent not only to the Respondent, but others who might be like-minded to act in this way.

6         The Claimant also seeks costs in the sum of $800.00.  Those costs have not been quantified, but are said to be nominal costs.  Having regard to the hearing that took place in this matter before me and the matter generally, in my view, the amount sought is not inordinate.  It is just a question of whether or not those costs ought to be awarded.  For costs to be awarded, the Court must be of the view that the proceedings were either frivolously or vexatiously defended.  Clearly the Respondent's action could not be said to be frivolous in this matter.  However, the question becomes whether its conduct was vexatious, particularly following the Full Bench's determination of this matter.  In my view, it was.  It defended the matter when, in my view, in reality it had no defence or realistic prospect of success, particularly given the factual matrix of this case.

7         To my recollection I have never ordered costs or made a finding that proceedings have been defended vexatiously.  However, the circumstances of this case, in my view, call out for the making of such an order.  The costs are appropriate in this particular case in view of the Respondent's conduct and, therefore, I accede to the application made by the Claimant in this matter and, accordingly, I make a finding that the proceedings were vexatiously defended, and order that the Respondent pay to the Claimant costs in the sum of $800.00.  The Respondent should also pay to the Claimant the penalty that I have imposed in the sum of $500.00.

G Cicchini

Industrial Magistrate