Blackheath and Thornburgh College v Mr AA (No.2) [2006] ICQ 6 (2006) 181 QGIG 227

[Extract from Queensland Government Industrial Gazette, dated 17 February, 2006, Vol. 181, No. 7, page 227] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 335(1) - application for costs Blackheath and Thornburgh College AND Mr AA (No.2)(C/2005/77) PRESIDENT HALL 7 February 2006 DECISION By a Decision of 13 September 2005 now reported at 180 QGIG 232 the Queensland Industrial Relations Commission ordered the reinstatement to his former position of a person identified as Mr AA. The Order of the Commission required that Mr AA be reinstated on conditions at least as favourable as the conditions upon which he had been employed by Blackheath and Thornburgh College immediately prior to his dismissal and also required the payment to him by the College of a rather large sum of money (subject to taxation). The Orders were to be complied with within 21 days. They were not complied with within 21 days. In fact there was an appeal and an Application for a Stay. It is hardly necessary to add that neither the filing of an appeal nor the filing of Application for a Stay authorises an Appellant to ignore an existing Order of the Commission. The Application for a Stay was heard on 10 October 2005. The application was shown not to be sustainable and was dismissed instanter for reasons given from the bench. The Appeal itself has not been heard. The Appeal will not be heard because on 9 December 2005, which was the date fixed for the hearing of the Appeal, the Appeal was dismissed because the Appellant had entirely failed to observe the Directions Orders which had been issued by this Court to ensure a just and expeditious disposition of the Appeal. Mr AA now seeks costs. The Application is entirely understandable. Indeed, in dismissing the Appeal on 9 December 2005, this Court expressed a concern that "from Mr AA's perspective the appellate process has been used for the purposes of vexation." Regrettably, the case for the award of costs has not been made out. The source of the power to award costs is s. 335 of the Industrial Relations Act 1999. Counsel for Mr AA seeks to invoke s. 335 (1)(a) which (materially) requires a respondent to establish that the unsuccessful appeal was made "vexatiously or without reasonable cause". Here, the Respondent does not seek to contend that the Appeal was made without reasonable cause in that the Appeal had no objective prospect of success. Rather, the Respondent points to the conduct previously identified, submits that in the language of Gersten v Cape York Land Council Aboriginal Corporation (2) (2004) 176 QGIG 513 that the Appeal was instituted with the intention of annoying or embarrassing the Respondent for some collateral purpose" and relies on the power to award costs where an appeal is instituted vexatiously. The difficulty with the submission is that it requires an inference that the Appeal was instituted vexatiously, to be drawn from the circumstance that after its institution the Appeal was conducted vexatiously. On what I have been told of the Appellant's circumstances by Mr Walters of Counsel - and Counsel for the Respondent to the appeal makes no suggestion that I should not rely on which I have been told - the more likely explanation is to be found in a mixture of impecuniosity, ignorance and inefficiency. Certainly, the Respondent has failed to make out the strong case which is necessary before a court would be justified in making a damning finding that an appeal had been instituted "vexatiously". The issue whether s. 335 (1)(b) may be relied upon where there is unreasonable conduct on an appeal from the decision of the Commission dealing with Application for Reinstatement has not been argued. I refrain from expressing an opinion upon the point. I dismiss the application for costs. Dated 7 February 2006. D.R. HALL, President. Released: 7 February 2006 Appearances: Mr H. Walters directly instructed for the Appellant. Mr J. Merrell instructed by Wilson, Ryan and Grose, Solicitors for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 1 of 1 --