Carmichael v J. S. G. Holdings Pty Ltd (No. 2) [2004] ICQ 59 (2004) 177 QGIG 387

15 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 387 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 335 – application for costs Ian Charles Carmichael AND J. S. G. Holdings Pty Ltd (No. 2) (No. C19 of 2004) PRESIDENT HALL 5 October 2004 DECISION Be decision of 13 July 2004 I dismissed the appeal and reserved all questions as to costs. I unreservedly accept the submission of the Respondent that the appeal had no objective prospect of success. So much is manifest on any reading of the decision now reported at 176 QGIG 542. It follows that the power to award costs at s. 335 of the Industrial Relations Act 1999 has been triggered. I have to accept also that it is a primary purpose of s. 335 to provide parties who have been successful in the Commission financial protection against entirely unmeritorious appeals. The difficulty is that the power which is triggered is a discretionary power. A finding that an appeal had no objective prospect of success, is relevant to the exercise of the discretion as well as the issue whether the discretion arises. But such a finding cannot be treated as determinative at the exercise of the discretion. All of the circumstances must be assessed. From first to last Mr Carmichael’s problem was that he acted for himself. The Industrial Relations Act 1999 permits ex-employees to act for themselves. Indeed, the procedures within the Commission have been much modified to assist those who seek to help themselves. But it is no easy task for a laymen to represent himself. Particularly is that so in the case of appeals. Here, I quite accept that Mr Carmichael had not the least idea that the appeal was doomed and indeed sought to raise grounds which it had failed in the earlier appeals. And, of course, there was no way of pointing out to Mr Carmichael the difficulties with which he was confronted prior to hearing the argument on the appeal. By his written submission Mr Carmichael points to impecuniosity. Given the nature of his earlier employment and the (now substantial) period of unemployment which flowed from his resignation, it would be churlish to treat the claims as other than true. -- 1 of 2 -- 388 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 October, 2004 In all the circumstances, notwithstanding that it is a purpose of s. 335 to protect parties success from the Commission against the financial burden of entirely unmeritorious appeals, it seems to me that it would be oppressive to burden Mr Carmichael with responsibility for the respondent’s costs. I dismiss the application for costs. Dated 5 October 2004 D. R. HALL, President Appearances: Released: 5 October 2004 Mr A. Walker of Redchip Lawyers for the Respondent. The Appellant in person. -- 2 of 2 --