Bedran v Gold Coast City Council [2013] ICQ 19

CITATION: Natalia Bedran AND Gold Coast City Council (C/2013/5) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Natalia Bedran AND Gold Coast City Council (C/2013/5) PRESIDENT HALL 16 April 2013 DECISION [1] Natalia Bedran commenced employment with the Gold Coast City Council on 7 July 2008. She was dismissed on 30 September 2011. She sought reinstatement/and other remedies pursuant to s. 74 of the Industrial Relations Act 1999 (the Act). By a decision of 11 January 2013 released the same day, the Queensland Industrial Relations Commission (the Commission) dismissed Ms Bedran's application, see TD/2011/61 1. This is an Appeal against the decision of the Commission. [2] I quite accept that an appeal such as this is by way of rehearing on the record, see s. 348(1) of the Act. However, an appellant is restricted to the grounds of error of law and excess, or want of jurisdiction, see 341(1) of the Act. Here, save as to one matter, no alleged error of law or jurisdiction is identified in the Application to Appeal and the attachment containing Grounds of Appeal. The defect is not cured (if curable) by the Appellant's submissions. [3] At a conceptual level, I can understand a submission that the chasm between the admissible evidence and a conclusion is so great that an unarticulated error of law should be presumed. No such submission is developed here. The Appellant's submissions fall short of establishing that, on the admissible evidence, the Commission's conclusion was not reasonably open (which is the test under the Workers' Compensation and Rehabilitation Act 2003). [4] The gravamen of the Respondent's complaint about the Appellant is that, whilst in the Respondent's employ she used her computer to access emails between the Respondent and the Respondent's solicitors. The emails concerned claims which the Appellant was seeking to pursue against the Respondent. It is idle for the Appellant to assert that, because of a system failure the information was not secured and in the alternative, that she was entitled to view information about her work and herself. It was the Respondent's evidence that she was not dismissed when discovered. She was counselled and directed to desist for the future. It was open to the Commission to accept that evidence and the further evidence that she was dismissed for repetition. In any event, to show error of law the Appellant must show that there was not any evidence to support the Commission's decision. Such a case cannot be maintained. Indeed no such case is developed. [5] The Appellant's grounds and submissions are directed to re-agitation of the factual matters raised at first instance, in the hope of securing a more favourable outcome. The Industrial Court has no authority to hear such a case. Were the Court to enter upon such an exercise, the Court (not the Commission) would be acting in excess of jurisdiction. [6] The "one matter" referred to at [2] above is the assertion that the Commission's decision did not deal with all of the evidence. The assertion is correct. It is entirely understandable that the Commission did not deal with all of the evidence. There was a three day hearing. The Appellant's affidavit exhibited 213 documents. A trolley was used to shift the file from the Industrial Registry to the court room. The Commission is not required to deal in writing, with every sentence of evidence. The Commission is required to expose the Commission's reasoning sufficiently fully to enable a disappointed litigant to appreciate why the case failed and to consider whether to appeal. The Commission attained that standard. [7] I dismiss the Appeal. [8] The Respondent seeks costs. The Appeal had no objective prospect of success. The power to award costs at s. 335(1)(a) of the Act is triggered. I am always reluctant to award costs against a self-represented litigant. However, I have no authority to be generous with the Respondent's funds. Costs must be awarded. The quantum of costs is another matter. Failing agreement, the Respondent is to file an itemised claim and deliver a copy to the Appellant. Subject to allowing the Appellant a reasonable opportunity to respond in writing, the Court will assess the costs to be awarded. 1 Natalia Bedran AND Gold Coast City Council (TD/2011/61) - Decision <http://www.qirc.qld.gov.au> -- 1 of 2 -- 2 Dated 16 April 2013. D.R. HALL, President. Released: 16 April 2013. Appearances: Ms N. Bedran, the Appellant conducting her own case. Mr C.J. Murdoch, instructed by Clayton Utz Lawyers, for the Respondent. -- 2 of 2 --