AhKee v Cairns and District Regional Housing Corporation Limited [2005] QIRC 53 (2005) 179 QGIG 18

[Extract from Queensland Government Industrial Gazette, dated 13 May, 2005, Vol.179, No.2, pages 18-19] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 335 – application for costs Gavin AhKee AND Cairns and District Regional Housing Corporation Limited (No. B990 of 2004) VICE PRESIDENT LINNANE 27 April 2005 Unfair dismissal – Application for costs – Applicant failed to comply with Directions Orders – Attended no evidence – Held unreasonable act or omission – Costs awarded – Industrial Relations Act 1999 s. 335(1)(b); Industrial Relations (Tribunals) Rules 2000 r. 66. DECISION [1] This is an application by the Cairns and District Regional Housing Corporation Ltd (Respondent) for costs against Gavin Michael AhKee (Applicant). The substantive application is one by the Applicant seeking reinstatement alleging an unfair dismissal. That application was dismissed by me on 23 March 2005 for failure on the part of the Applicant to comply with various directions issued by the Commission for the further conduct of this matter. This application is made pursuant to s. 335(1)(b) of the Industrial Relations Act 1999 (Act) on the basis that the Applicant has caused costs to be incurred because of unreasonable acts or omissions connected with the conduct of his application. [2] The history of the Applicant’s continuous non-compliance with directions issued by this Commission is outlined in the reasons for dismissing this application: see B423 of 2005 released 21 April 2005. I rely upon that history of non-compliance in this application. [3] Directions for the filing of written submissions on the Respondent’s application for costs were issued on 23 March 2005. The Respondent was to serve on the Applicant and file in the Industrial Registry its written submissions by 30 March 2005. The Respondent complied with this direction. The Applicant was to serve on the Respondent and file in the Industrial Registry his written submissions in reply by 6 April 2005. The Respondent corresponded with the Industrial Registry on 15 April 2005 advising that it had not received any written submission in reply from the Applicant. The Applicant was then contacted at work by telephone on 18 April 2005. The Applicant advised that “he had documents at home and would fax them tomorrow to both the Registry and Bottoms English”. No written submissions in reply have been received by the Applicant. [4] I am satisfied that the Applicant has had a reasonable opportunity to file and serve written submissions on the issue of costs. In those circumstances I intend to deal with the matter in the absence of the Applicant’s written submissions. [5] The first application for costs in this matter came on 3 March 2005. At this time the Applicant was legally represented. I indicated at the conclusion of that hearing that I would reserve my decision on the Respondent’s costs’ application although I did indicate that I was “leaning towards … awarding costs because of the unreasonable act of the Applicant”. [6] At the hearing of the matter on 16 March 2005 the Respondent reserved its right to apply for the costs of the hearing on that date. On this occasion the Applicant represented himself. At the hearing on 18 March 2005 the Applicant did not attend the telephone hearing. Nor did the Applicant attend the hearing on 23 March 2005 which was a hearing of the Respondent’s strike out application: see B423 of 2005. [7] In this application the Respondent seeks costs of $6,366.00 pursuant to Schedule 3 of the scale of costs for Magistrates Court under the Uniform Civil Procedure Rules 1999. Among the costs sought are instructions to defend, preparation for hearing, advice on evidence, attendance on witnesses and appearance on the strike out application. [8] This application was one by the Applicant for reinstatement. The Respondent relies upon the power in the Commission to order costs found in s. 335(1)(b) of the Act i.e. the Commission can only order costs if satisfied that the “party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application”. [9] In this matter the Applicant did not:  comply with directions 2, 4 and 5 of the Further Directions Order dated 21 January 2005;  comply with directions 2, 4 and 5 of the Further Directions Order dated 24 February 2005 and outlined to the Applicant in the hearing before Commissioner Blades on the same date; -- 1 of 2 -- 2  comply with directions outlined to the Applicant in the hearing on 3 March 2005 before myself and which were confirmed in a Further Directions Order dated 3 March 2005;  comply with the directions outlined to the Applicant in the hearing on 16 March 2005;  attend the telephone hearing of the matter on 18 March 2005 although aware of the hearing date and time; and  attend the strike out telephone hearing of the matter on 23 March 2005 although he was aware of the hearing date, time and reason for the hearing. [10] In Vernon Reddick v. Ocean Spirit Cruises Pty Ltd trading as Ocean Spirit Cruises (1999) 161 QGIG 163 at p. 164 Chief Industrial Commissioner Hall (as he then was) when dealing with a matter under the 1997 legislation said: “In my view, the adjective ‘unreasonable’ at s. 225(1)(b) takes its colour from s. 225(1)(a). It is insufficient to show inadvertence or even neglect. What must be shown is an abuse of process attracting opprobrium of the same magnitude as is attracted by launching an application frivolously or vexatiously or without reasonable cause.”. [11] The application for costs is made under s. 335(1)(b). I have not been asked to determine whether the Applicant’s application for reinstatement was made vexatiously or without reasonable cause therefore I am not required to consider s. 335(1)(a). In that regard matters such as instructions to defend, preparation for hearing, advice on evidence and attendance on witnesses do not fall for consideration as it would only be in circumstances where the application was considered to have been made vexatiously or without reasonable cause would such costs be considered. [12] At the hearing on 3 March 2005 the Applicant’s legal representative did make submissions on the question of costs alleging that the Applicant was impecunious and that the Respondent was a substantial organisation. It is noted that the Applicant is currently in employment. The telephone hearings were generally conducted with him at the premises of his current employer. There is no evidence before me to suggest that the Applicant is impecunious. [13] In all the circumstances I am satisfied that the Applicant caused costs to be incurred by the Respondent because of unreasonable acts or omissions connected with the conduct of this application. [14] The discretion to award costs when it arises, is full and unfettered, but it is still a discretion: see Chris Barsha v Motor Finance Wizard (Sales) Pty Ltd (2003) 174 QGIG 2. I intend to exercise that discretion in this matter. In my view the Respondent is entitled to its costs for the telephone hearings of 3 March 2005, 16 March 2005 and 18 March 2005. I have not included any costs for the first hearing before Commissioner Blades as I have given the Applicant that further opportunity to comply with directions. At two of the abovementioned hearings the Respondent was represented by both Counsel and Solicitor and by Solicitor in the third. [17] Rule 66 of the Industrial Relations (Tribunals) Rules 2000 gives a wide discretion with respect to determining the quantum of costs. Rule 66 provides that the Commission may have regard to the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, Schedule 3 or any other relevant factor. In the circumstances I find that an amount of $350.00 per application where Counsel was in attendance and $200.00 for the third application to be appropriate. I understand that the cost to the Respondent of the Applicant’s unreasonable acts or omissions has been far greater than this amount. [18] Accordingly I order that the Applicant, Gavin AhKee, pay to the Respondent, Cairns and District Regional Housing Corporation Limited, an amount of $900.00 in costs within twenty-two days of release of this decision. D.M. LINNANE, Vice President. Hearing Details: 2005 3March 16March 18March 30March (Respondent’s Written Submissions) Appearances: Mr G. AhKee on his own behalf. Mr C. Ryall of Counsel, instructed by Bottoms English for the Respondent. Released: 27 April 2005 Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --