Bullock v Australian Security Company Pty Ltd; Australian Security Company Pty Ltd v Bullock [2006] ICQ 43 (2006) 182 QGIG 563

[Extract from Queensland Government Industrial Gazette, dated 11 August, 2006, Vol. 182, No 16, pages 563-564] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Gary John Bullock AND Australian Security Company Pty Ltd (C/2005/43) and Gary John Bullock AND Australian Security Company Pty Ltd (C/2005/44) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/45) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/46) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/47) PRESIDENT HALL 27 July 2006 DECISION This is the fourth released decision dealing with this set of appeals. The earlier decisions are now reported at 181 QGIG 138, 181 QGIG 626 and 182 QGIG 153. The appeals arise out of proceedings on complaints by Gary John Bullock that the Australian Security Company Pty Ltd (ASC) had failed to pay wages due and payable to certain employees under the Security Industry (Contractors) Award - State, contrary to s. 666 of the Industrial Relations Act 1999. In the beginning there were five complaints. A complaint about wages said to have been owing to Mr David Hart wholly failed. The ancillary claim pursuant to s. 666(6)(b) also failed. A complaint about wages said to have been owing to Mr Hohepa Pene was also entirely unsuccessful. The ancillary claim pursuant to s. 666(6)(b) also failed. The Industrial Magistrate dismissed the complaint about wages said to have been owing to Mr Hart and the complaint about wages said to have been owing to Mr Hohepa Pene. ASC made no application for costs. It is now too late to approach the Industrial Magistrate for an order about costs, see s. 159 of the Justices Act 1886. Neither of the two complaints which were dismissed was the subject of an appeal to this Court. This Court has no power to deal in a direct way with the matter of costs of and incidental to either of the complaints. Two complaints, one about wages said to have been owing to Mr Robert Evans and one about wages said to be have been owing to a Mr Kidd were partially successful at first instance. The complaint about wages said to have been owing to a Mr Easton was wholly successful. ASC was successful on appeal in relation to each of the three complaints, see 181 QGIG 138. The convictions were set aside. On a subsequent rehearing on the record, see 182 QGIG 153, ASC was successful on the ancillary issues pursuant to s. 666(6)(b) in relation to each complaint. The matter of costs, including costs at first instance, was reserved in the case of each complaint. ASC now seeks costs of the proceedings at first instance. The case developed is a simple one. All five complaints were heard together and on the basis that the evidence was cross-admissible. ASC contends it is now entitled to have costs assessed on the basis that there was but one case. It is put that the attempt to separate out the costs attributable to the proceedings against Mr Hart and Mr Hohepa Pene is to ignore the circumstance that the evidence was cross-admissible, is to ignore the circumstance that much of the cross-examination about quantum arose because monies which ASC had not paid to an alleged employee had in fact been paid by ASC to another security contractor as principal contractor, and to fail to recognise that if five cases been fought the cumulative length of the proceedings relating Messrs Evans, Kidd and Easton was likely to have exceeded the nine days actually taken. The case developed on behalf of Mr Bullock emphasises the discretion at s. 158 of the Justices Act 1886. I accept that s. 158 does vest a discretion. I do not however accept that the position of a union official pursuing alleged employers for supposed offences committed in relation to the payment of wages is so analogous to the role of a police officer or public officer as to require the discretion at s. 158 to be exercised in accordance with the principles at s. 158A. The true significance of the discretion is, I think, to enable one to adopt a broad brush approach, accept that in truth there was one proceeding, accept that trawling through the transcript to tease out costs attributable to the proceedings about Mr -- 1 of 2 -- 2 Hart and the proceedings about Mr Hohepa Pene would be a time consuming, expensive and unrewarding exercise, and accept that in seeking costs in respect of "one" case rather that "three" cases ASC has made a concession. It is common ground that if costs are assessed on the basis contended for by ASC the correct amount is $8,500. ASC accepts that Mr Bullock should be allowed 28 days to pay. It is common ground that because of the peculiarities associated with s. 159 of the Justices Act 1886, the order should be made in the proceedings on a particular complaint. I randomly select the complaint relating to Mr Easton. I formally dismiss the complaint relating to Mr Easton. I order that Mr Bullock pay to ASC the sum of $8,500 within 28 days of the date of this decision. I formally dismiss each of the complaints relating to Messrs Evans and Kidd. Each of Messrs Hart, Hohepa Pene, Evans, Kidd and Easton have issued attachment notices against ASC. By decision of 14 April 2004, now reported at 175 QGIG 1371, this Court accepted that the orders contemplated by ss. 382(3)(a) and 383(2)(a) might be made in or consequentially upon proceedings under s. 666. It seems to me inevitably to follow that the orders contemplated by s. 382(3)(a) may also be made by an Industrial Magistrate in the proceedings under s. 666. Indeed, as Counsel for ASC submits, were it otherwise an attachment notice would enure indefinitely though the claim was unsuccessful. In circumstances in which there is no evidence that Messrs Evans, Kidd and Easton are aware that the matter of the attachment notices is before this Court, and in circumstances in which the appeals do not expressly raise the matter of attachment notices, there may be some doubt about whether s. 341(3)(b) authorises this Court to exercise the powers available to an Industrial Magistrate under s. 382(3)(a). The doubts arise in the context in which this Court has plainly no jurisdiction over the attachment notices issued by Messrs Hart and Hohepa Pene. It seems to me that the appropriate course is to order that the question of whether the attachment notices issued by Messrs Evans, Kidd and Easton should be set aside should be remitted to the Industrial Magistrate at Southport. I so order. Dated 27 July 2006. D. R. HALL, President. Released: 27 July 2006 Appearances: Mr A. Horneman-Wren, instructed by Livingstones (Australia) for Australia Security Company Pty Ltd in all matters. Ms T. Butler of Hall Payne, Solicitors, for Gary John Bullock in all matters. Government Printer, Queensland The State of Queensland 2004. -- 2 of 2 --