Australia Meat Holdings Pty Ltd v Saunders & Anor [2006] ICQ 31 (2006) 182 QGIG 158

[Extract from Queensland Government Industrial Gazette, dated 2 June, 2006, Vol. 182, No .5, pages 158-159] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561 - appeal against decision of industrial magistrate Australia Meat Holdings Pty Limited AND Janice Margaret Saunders and Review Unit Q-COMP (C/2006/12) PRESIDENT HALL 24 May 2006 DECISION Ms Janice Margaret Saunders has claimed benefits under the Workers' Compensation and Rehabilitation Act 2003 (the Act). She is currently the appellant in proceedings in the Industrial Magistrates Court under Chapter 13, Part 3 of the Act. Q-COMP is the Respondent. Australia Meat Holdings Pty Limited (AMH), the employer of Ms Saunders at all material times, has sought and has been granted leave to be heard. No complaint is made about the Industrial Magistrate's decision to grant AMH leave to be heard. The complaint is about one of the conditions attached to the grant of leave. The condition complained of is a condition which precludes AMH from seeking costs in the appeal against Ms Saunders even if AMH is successful. Counsel for the Appellant does not contend that the Industrial Magistrates Court lacks power to attach conditions to the right to be heard. What is contended is that questions about costs should be deferred until the disposition of the appeal in the Industrial Magistrates Court. Some reliance is placed on a decision of this Court in Australia Meat Holdings Pty Limited v Angela Merilyn Kennedy and Q-COMP Review Unit (2006) 181 QGIG 474. But in that case, the order about costs failed because it was consequential upon other restrictions upon the right to be heard which were set aside. It seems to me that in the ordinary case the issue of whether, in granting a right to be heard, the Industrial Magistrates Court should limit the applicant's right to seek costs from an appellant worker will be dealt with at the outset. It is at that point that the Industrial Magistrate will be required to develop conditions which will ensure that the applicant's contribution to the case is geared to assisting the Industrial Magistrates Court and to protecting the applicant's legitimate interests, and does not lead to delay, repetition or unnecessary costs. It will be at that point that the Industrial Magistrate will also have to consider whether conditions need to be attached to the grant of leave to be heard in order to ensure that indulgence of the applicant does not become a burden to the appellant or deter an appellant from proceeding. The point of concern is obvious. A claimant worker launching an appeal to the Industrial Magistrates Court faces the prospect of bearing her own costs on a solicitor and client basis, and bearing the costs of Q-COMP on a party and party basis. If the employer is granted leave to be heard and no limitation on the right to seek costs is imposed as a condition of the grant of leave, the workers faces the prospect that if unsuccessful she will be required to pay yet a further set of costs on a party and party basis. The use of restrictions about costs to ensure that the grant of leave to be heard is not unduly burdensome to the parties derives support from the decision of the High Court in Ledy v State of Victoria and Others (1997) 146 ALR 248 at 258-259 per Brennan CJ and at 296 per Kirby J. One may readily imagine cases in which an appellant so misconducts herself that issues will arise about the authority of an Industrial Magistrate to revisit conditions previously imposed and any limitations on that authority. But that is not this case and those matters may be left to another day. AMH complains also that it was not given the right to be heard before the condition about costs was imposed. The company has now been heard in full. I should have imposed the same condition as was imposed by the Industrial Magistrate. The appeal against the imposition of the condition is dismissed. At first instance AMH, being successful on its application for leave to appear, sought the costs of that application on a costs follow the event basis. The application was unsuccessful. AMH now appeals against the rejection of its application for costs. It seems to be that the power at s. 558(3) is sufficiently wide to authorise an award of costs in favour of or against a person granted leave to be heard. The reference at s. 560 to "the party" seems to me to be a reference to a party to the costs order. But the power at s. 558(3) is discretionary. Here, AMH incurred costs in seeking an indulgence. Additional cost was incurred because the materials which AMH took to the callover did not enable the Industrial Magistrate sufficiently to inform himself about what it was that AMH would say if granted leave. The need for such information was made clear as long ago as E.A .& S. Plaster Co Pty Ltd v Lynton and Charles Jones and WorkCover Queensland (2002) 171 QGIG 650 at 651. An adjournment (for the benefit of Australia Meat Holdings Pty Ltd) to another day was necessary. (AMH does not on the appeal seek the costs of the first day.) The discretion about costs of the application for the leave to appear is vested in the Industrial Magistrate. This Court could properly interfere only if the decision was clearly wrong. In my view the decision was clearly correct. I dismiss the appeal. It is agreed by counsel that in all the circumstances of the case the appeal to this Court is to be an appeal in which costs are not sought. -- 1 of 2 -- 2 Dated 24 May 2006. D. R. HALL, President. Released: 24 May 2006 Appearances: Mr T. Entriken, instructed by Ms M. Flynn of Abbott Tout Lawyers for the appellant. Mr J. Merrell, instructed by Hall Payne Lawyers for Ms Saunders. Mr S. Sapsford, directly instructed for Q-COMP. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --