City of Mandurah v Hull — Benchmark — WA Industrial Relations Case Database

Ratio

The appellant's failure to serve constitutional notices required under s78B(1) of the Judiciary Act 1903 (Cth) resulted in adjournment and an order that the appellant pay the respondent's costs of the day. The respondent's late application for a certificate for second counsel is granted, the Court finding the matter raised significant constitutional issues affecting the rights of employees and that the engagement of two counsel was entirely reasonable and proper.

Outcome

Resolved other

Authority signal

Not yet cited by other cases Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 8

Appellant sought to argue that the definition of 'employee' in the Industrial Relations Act 1979 (WA) should be read down to exclude employees covered by federal awards.
Appellant argued that unfair dismissal provisions in the IR Act 1979 (WA) were invalid by virtue of s109 of the Commonwealth Constitution due to inconsistency with the Workplace Relations Act 1996 (Cth) and an AIRC award.
Appellant failed to serve notices required under s78B(1) of the Judiciary Act 1903 (Cth) for constitutional issues.
The proceedings were adjourned on the first day of hearing due to this failure.
The respondent incurred costs for counsel's attendance at the aborted hearing.
Two counsel appeared for the respondent.
The Attorney General for Western Australia and WA Minister for Labour Relations intervened.
The respondent's application for a certificate for second counsel was made late, after the costs order.

Factors

For

The matter raised significant and wide-ranging constitutional issues affecting the rights of a significant number of employees in WA.
Had the appellant's argument succeeded, employees covered by federal awards but not employed by constitutional corporations would have had no recourse to either State or Federal Industrial Relations Commission.
The importance of the case was confirmed by intervention of the Attorney General for WA and WA Minister for Labour Relations.
The respondent was entirely reasonable and proper in engaging senior counsel and second counsel given the significance of the constitutional issues.
The court would have granted a certificate for second counsel if the application had been made at the time of the costs order.

Against

The appellant's failure to serve the required s78B notices was not a mere oversight; the appellant had been advised previously of the necessity for service.
The respondent's application for the certificate for second counsel was made late, after the costs order.
The appellant's failure to serve notices resulted in unnecessary costs being incurred.

Concept tags · 6

[P]Unfair dismissal (WA) [P]Costs order [P]Federal/state inconsistency (s109) [S]Employee v independent contractor [S]Jurisdictional objection [S]Constitutional corporation test

Principles · 3

articulates para 2

Where a party fails to serve notices required under s78B(1) of the Judiciary Act 1903 (Cth) in relation to constitutional issues raised in legal proceedings, and this failure results in adjournment and unnecessary costs, the court may order the defaulting party to pay those costs under s78B(2)(a).

articulates para 5

A certificate for second counsel may be granted, notwithstanding late application after the substantive costs order, where the matter raises significant constitutional or legal issues affecting a substantial class of persons, and the engagement of two counsel was reasonable and proper in the circumstances.

cites para 5

Senior counsel and additional counsel should be engaged in matters involving significant legal issues affecting important questions of law.

Cases cited in this decision · 2

Cited

[1946] HCA 19 (not in corpus)

"…nreported; FCt SCt of WA; Library No 4501; 14 May 1982. It was, in our opinion, entirely reasonable and proper for the respondent to engage senior counsel and second counsel in this matter, which gave rise to...…"

Cited

(1946) 73 CLR 129 (not in corpus)

"…Ct of WA; Library No 4501; 14 May 1982. It was, in our opinion, entirely reasonable and proper for the respondent to engage senior counsel and second counsel in this matter, which gave rise to significant issues -...…"

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
(2000) 80 WAIG ANDERSON J McKECHNIE J HEARD 16 NOVEMBER 2000 DELIVERED 16 NOVEMBER 2000	Industrial Appeal Court	2000-11-16	Resolved	3	0
[2000] WASCA 216 City of Mandurah v Hull	WA Court of Appeal	1999-12-01	Against applicant	2	2
[2005] FCA 908 BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of...	Federal Court	2005-07-01	Resolved	2	2
[2005] WAIRC 1309 FBA 1 of 2005	WAIRC — Full Bench	2005-01-01	For applicant	2	1
[2021] WAIRC 659 Hsiao-Hua (Xanthe) Hsu v Fraser Suites Perth	WAIRC — Full Bench	2021-12-23	Against applicant	2	0
[2016] FWC 2790 Green v Toll Holdings Ltd	FWC	2016-01-01	For applicant	2	2
[2012] WAIRC 1087 Jillaine Jones v Eco Abrolhos Accomodation Pty Ltd	WAIRC — Single Commissioner	2012-12-05	Against applicant	2	1
[2017] FWC 52 Application by R.A.v	FWC	2017-01-01	For applicant	2	1
[2021] WAIRC 510 Hsiao-Hua (Xanthe) Hsu v Fraser Suites Perth	WAIRC — Single Commissioner	2021-09-17	Against applicant	2	0
[2015] WAIRC 1057 Kelly Louise Fragomeni v Ngunytju Tjitji Pirni (ABN: 89 716 158 382)	WAIRC — Single Commissioner	2015-11-30	Resolved	2	0

Archived text (749 words)

City of Mandurah v Hull [2000] WASCA 353 (16 November 2000) Last Updated: 31 May 2001 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : CITY OF MANDURAH -v- HULL [2000] WASCA 353 CORAM : KENNEDY J (Presiding Judge) ANDERSON J McKECHNIE J HEARD : 16 NOVEMBER 2000 DELIVERED : 16 NOVEMBER 2000 FILE NO/S : IAC 5 of 1999 BETWEEN : CITY OF MANDURAH Appellant AND WILLIAM HULL Respondent Catchwords: Costs - Matter arising under Commonwealth Constitution - Order for costs thrown away by reason of appellant having failed to serve requisite notices under s 78B(1) of the Judiciary Act 1903 (Cth) - Application for certificate for second counsel - Failure to apply for certificate when order made for costs - Court would have granted certificate if sought at time of making order for costs Legislation: Judiciary Act 1903 (Cth) , s 78 Result: Certificate for second counsel granted Representation: Counsel: Appellant : Mr A Randles Respondent : Mr R C Kenzie & Mr A L Drake-Brockman Solicitors: Appellant : Mr A Randles Respondent : Dwyer Durack Case(s) referred to in judgment(s): Case(s) also cited: Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Cappucio v Chrysler Aust (Sales) Pty Ltd [1980] FCA 63 ; (1980) 30 ALR 176 Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996 Oldaker v Currington [1987] VicRp 61 ; [1987] VR 712 Stanley v Phillips [1966] HCA 24 ; (1966) 115 CLR 470 1 JUDGMENT OF THE COURT : In this appeal, the appellant sought to argue that the definition of "employee" in the Industrial Relations Act 1979 should be read down to exclude employees covered by federal awards. It was further argued by the appellant that, by virtue of s 109 of the Commonwealth Constitution , the unfair dismissal provisions in the Industrial Relations Act 1979 were invalid as a result of their direct or indirect inconsistency with the provisions of both the Workplace Relations Act 1996 (Cth) and an award of the Australian Industrial Relations Commission. 2 On the first day fixed for the hearing of the appeal, the proceedings had to be adjourned by reason of the appellant having failed to serve the notices which, having regard to the Constitutional issues raised in the appeal, were required to be served under s 78B(1) of the Judiciary Act 1903 (Cth) . This was not a mere oversight, the appellant having been advised some time previously of the necessity for service of the notices. 3 In these circumstances, the respondent unnecessarily incurred the cost of counsels' attendance at the hearing. The Court therefore ordered, pursuant to s 78B(2)(a) of the Judiciary Act , that the appellant should pay the costs of the day. No application was, however, made at that time for a certificate for second counsel, two counsel having appeared at the hearing on behalf of the respondent. Such an application has now been made. 4 We accept the respondent's submission that the appellant's claim had wide-ranging ramifications as it potentially affected the rights of a significant number of employees in this State to bring actions for unfair dismissal. Had the appellant's argument been successful, an employee covered by a federal award, but not employed by a constitutional corporation, would not have had recourse either to the State or to the Federal Industrial Relations Commission in a claim for unfair dismissal. The importance of the case was confirmed by the intervention of the Attorney General for Western Australia and the Western Australian Minister for Labour Relations. 5 We have no doubt that, had an application for a certificate for second counsel been made on the first day set down for the hearing, it would have been granted - see Snowtop Mushrooms Pty Ltd v Powley , unreported; FCt SCt of WA; Library No 4501; 14 May 1982. It was, in our opinion, entirely reasonable and proper for the respondent to engage senior counsel and second counsel in this matter, which gave rise to significant issues - see Smith v Madden [1946] HCA 19 ; (1946) 73 CLR 129 , per Dixon J at 132. Notwithstanding the respondent's delay in making the application, we are satisfied that this Court should exercise its discretion in favour of the respondent. The time for making the application should be extended as may be necessary, and the certificate should be granted. The costs should be taxed on the Supreme Court scale by a taxing officer of the Court.