Curtin v Queensland Police Service [2009] QIRC 16

CITATION: Christopher Morris Curtin AND Queensland Police Service (B/2009/55) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. Christopher Morris Curtin AND Queensland Police Service (B/2009/55) COMMISSIONER FISHER 17 December 2009 Unpaid wages - Superannuation - Annual leave - Long service leave - Costs - Reimbursement of witness expenses - s. 335 - General powers - Application for costs not entertained. DECISION [1] On 19 November 2009 the Commission as constituted released a decision Curtin v Queensland Police Service1 that Mr Curtin was entitled to unpaid wages, superannuation, annual leave and long service leave. The Commission gave the Queensland Police Service (QPS) fourteen days from the date of release of the decision to check Mr Curtin's calculations as contained in his application and to advise whether those calculations were disputed. It was only after the time frame had expired that the Commission received advice from the QPS that the amounts claimed were disputed. Mr Curtin advised the Commission that he did not accept the calculations made by the Shared Services Agency on behalf of QPS. As it appeared unlikely the parties would agree on the matter the Commission relisted the matter for hearing on 15 December 2009. [2] The Commission decided to take the step of relisting the matter to ascertain the nature of the dispute while allowing the parties to make submissions on the appropriate response to the non-compliance with the Commission's direction. [3] On 15 December 2009 it became apparent after briefly hearing from the parties that the matter of the calculations was more complicated than originally envisaged. In order to try to narrow the issues between the parties or to see whether a resolution could be achieved the Commission asked Asbury C to chair a conference of the parties. Fortunately, with her assistance the parties were able to reach an agreement. That agreement was recorded on the transcript of the proceedings. [4] On 16 December 2009 QPS confirmed that a further amount of $4,421.19 net was to be paid to Mr Curtin that day. Mr Curtin advised my Associate by telephone on that day of his acceptance of the amount. [5] After the parties had signified their agreement on the money claim Mr Curtin made an application for costs in light of the successful prosecution of his claim. The costs included expenditure on legal fees, reimbursement of witness expenses, travel allowance and witness expenses for himself. The reimbursement of witness expenses was claimed on the basis that the Commission had issued Attendance Notices for two witnesses Mr Curtin wished to call. The QPS called these witnesses instead leading the Commission to then set aside the Attendance Notices. [6] At the hearing the Commission advised Mr Curtin of the provisions of s. 335 of the Industrial Relations Act 1999 (the Act) which places statutory limitations on the capacity of the Commission to order costs. After advising Mr Curtin of the provisions of s. 335(1)(a) and, putting aside the question of whether QPS had an application before the Commission, Mr Curtin agreed that QPS had not acted vexatiously or without reasonable cause. He then asked the Commission to consider his claim under its general powers. [7] As the QPS had not come prepared to respond to an application for costs the QPS asked for time to be allowed to submit written submissions on Wednesday 16 December 2009. The Commission accepted this submission and also advised Mr Curtin he would have the opportunity to respond. [8] In its written submissions the QPS said the application for costs made by Mr Curtin did not satisfy s. 335(1)(a) of the Act. There was no evidence to support, and Mr Curtin himself had agreed, that the QPS had not acted vexatiously or without reasonable cause. The QPS had simply exercised its right to defend the claim. The QPS acknowledged, however, that in the circumstances it would be reasonable for the QPS to reimburse Mr Curtin the money expended in relation to witness expenses, that is, an amount of $143.50. [9] No submissions in response were made by Mr Curtin. 1 Curtin v Queensland Police Service (TD/2009/55) - Decision <http//www.qirc.qld.gov.au>. -- 1 of 2 -- 2 [10] In the particular circumstances of this case and given the position of the QPS I consider it is reasonable for the QPS to reimburse Mr Curtin an amount of $143.50 for witness and associated expenses. The Commission understands that the QPS intends to action the reimbursement as quickly as possible. [11] In respect of the claim for costs generally the Commission records that it only has limited powers to award costs and these are set out in s. 335 of the Act. The Commission does not have a general power to award costs even in circumstances where the claim is meritorious and/or where the applicant has been successful. In the circumstances the Commission finds that it has no power to entertain the claim for costs. That claim is dismissed. [12] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 15 December 16 December (written submissions - Respondent) Released: 17 December 2009 Appearances: Mr C.M. Curtin on his own behalf. Ms A. Venning and with her Inspector I. Wightman on behalf of the Respondent. -- 2 of 2 --