Browne v Communications Electrical Plumbing Union - Plumbing Division (Queensland Branch) [2007] QIRC 4 (2007) 184 QGIG 39

[Extract from Queensland Government Industrial Gazette, dated 25 January, 2007, Vol. 184, No. 4, pages 39-40] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 335 - general power to award costs Deane Leigh Browne AND Communications Electrical Plumbing Union - Plumbing Division (Queensland Branch) (TD/2006/446) VICE PRESIDENT LINNANE 17 January 2007 DECISION [1] This is an application by Deane Leigh Browne (Applicant) seeking an order for costs from the Communications Electrical Plumbing Union, Plumbing Division (Queensland Branch) (Respondent). The substantive application is one brought by the Applicant seeking reinstatement to her former position as Office Manager with the Respondent. [2] The reinstatement application failed to settle at the s. 75 of the Industrial Relations Act 1999 (Act) Conference and was listed for Callover on 22 November 2006. At that Callover the Respondent indicated that it believed the Applicant was required to seek an extension of time before proceeding with her application and thus sought to have the matter of an extension of time dealt with as a preliminary matter. It is to be noted that the Applicant did not seek, as part of her reinstatement application, an extension of time. [3] The Applicant was not represented at the Callover although her Solicitors had forwarded the necessary material to enable the substantive matter to be listed. As a result of the Respondent's submission at Callover, directions were issued for a hearing to determine whether an extension of time was required and if so, whether an extension of time would be granted. That matter was scheduled to be heard on 19 December 2006. [4] In correspondence dated 5 December 2006 the Respondent's Solicitors notified the Commission as follows: "We have today, upon return of client's secretary from holidays, been instructed by our client to withdraw its request for the application for reinstatement to be dismissed on the basis that it is filed out of time. We seek your confirmation that it is in order for our client to withdraw its request. The first Direction made in the extension of time application was to be complied with by our client this Friday 8 December. In anticipation of the requested confirmation, our client will not now file any statements of evidence on the extension of time application. In the circumstances we ask that the Application for reinstatement be relisted to enable a further Directions Order to be made regarding the conduct of the application.". [5] The Applicant's Solicitors were similarly advised on 5 December, 2006. By correspondence dated 7 December 2006 the Respondent's Solicitors further notified the Commission that they formally admitted that the Applicant's employment was terminated on 22 September 2006 and that, therefore, the Applicant's application for reinstatement had been made within time. [6] The directions made on 22 November 2006 had the Respondent filing material and an outline of submissions by 8 December 2006 with the Applicant doing likewise by 15 December 2006. The admission made by the Respondent was advised ten days prior to the Applicant having to provide any material and fourteen days prior to any hearing on the matter. [7] Upon notification to the Applicant's Solicitors of the Respondent's admission, the Applicant's Solicitors notified the Registrar that they would seek costs "thrown away" in responding to the Respondent's application made on 22 November 2006. The Applicant has provided an assessment of costs incurred in preparation for the hearing on 19 December 2006 based on Scale G of the Magistrates Court Scale of Costs. The amount sought is $5,170.00 together with a sum of $131.50 in witness expenses. [8] Mr Martin SC for the Respondent submitted that this application should either be dismissed or reserved until the determination of the substantive application. Mr Martin SC argues that it is more appropriate that this matter be heard at a time when issues of privilege or without prejudice documentation can be addressed. As the substantive application has not yet been heard and determined it is submitted that the Respondent is unable to put that material before the Commission. [9] In the circumstances I reserve my decision on the Applicant's cost application until after the substantive matter is heard and determined so as to provide the Respondent with an opportunity to place before me all relevant material. -- 1 of 2 -- 2 [10] In so doing, however, I make the following comments:  the Respondent's application made on 22 November 2006, which was listed for hearing on 19 December 2006, appears prima facie to have been an unreasonable act or omission connected with the conduct of the application. I am however prepared to be persuaded by the Respondent to the contrary; and  the costs claimed by the Applicant appear to be excessive given the nature of the application to be defended. The Commission is vested with discretion in the awarding of costs in this jurisdiction. Rule 66 of the Industrial Relations (Tribunals) Rules 2000 provides that the Commission may have regard to the costs payable on the Scale of Costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999 Schedule 3. In this jurisdiction, it is the usual practice in awarding costs for a global figure to be awarded after resolving all relevant matters, including the relevant Scale of Costs. D.M. LINNANE, Vice President. Hearing Details: 2006 18 December Appearances: Mr J. Crowley QC and Mr K. Watson, instructed by Swanston & Associates, Lawyers for the Applicant. Mr G. Martin SC, instructed by Murphy-Schmidt Solicitors for the Respondent. Released: 17 January 2007 Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --