Blackheath and Thornburgh College v Worsfold (No. 2) [2008] ICQ 16 (2008) 188 QGIG 21

[Extract from Queensland Government Industrial Gazette, Dated 16 May 2008, Vol. 188, No. 3, pages 21-22] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 335 - application for costs Blackheath and Thornburgh College AND Jonathon Worsfold (No. 2) (C/2007/64) PRESIDENT HALL 6 May 2008 DECISION By a decision of 18 February 2008, now reported 187 QGIG 97, the Court dismissed an appeal by Blackheath and Thornburgh College against a decision of an Acting Industrial Magistrate permitting Jonathon Worsfold to be legally represented in proceedings in the Industrial Magistrates Court to recover severance pay and payment in lieu of notice, where the entitlement was said to arise pursuant to a certified agreement under the Industrial Relations Act 1999 (the Act). On a literal construction of s. 319(2)(c) of the Act, the Acting Industrial Magistrate was plainly right and the Appellant did not contend otherwise. The contention was that because (read literally) s. 319 based the right of an employer to legal representation in defending a claim upon the identity of the claimant and/or the court or tribunal chosen by that claimant to adjudicate upon the claim, the literal construction should be departed from to achieve consistency. The great obstacle to success of that argument was that the Second Reading Speech to the Industrial Relations Bill 1999 (Hansard 25.5.1999 at p. 1836) by the Honourable Minister for Employment, Training and Industrial Relations, made plain that the Minister was aware of what was said by the Appellant to the idiosyncratic provisions. The purpose of s. 319 is plainly to accommodate divergent interests. It could not be appropriate to strain language to achieve consistency. In dismissing the Appeal, all questions of costs were reserved. It was directed that, if there were issues about costs, submissions would be taken in writing. The Respondent has claimed costs and made written submissions in support of the claim. The Respondent abides the decision of the Court. The claim must succeed. The Appeal was always recognisable as an appeal with no objective prospect of success. It was, indeed, a peculiarity of the proceedings that the Second Reading Speech was raised and relied upon by the Appellant. In the absence of agreement about costs, I order that the Respondent have its costs of and incidental to the Appeal. In the event that the parties are unable to agree upon the quantum of costs, costs are to be assessed by the Industrial Registrar as they would be assessed if the matter had been a matter in the Supreme Court of Queensland. Dated 6 May 2008. D.R. HALL, President. Released: 6 May 2008 Appearances: Mr H. Walters, directly instructed, for the Appellant. Mr J. Merrell, instructed by Wilson Ryan Grose Solicitors, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 1 of 1 --