Central Scaffolding & Rigging Services Pty Ltd v Verrall (No. 2) [2004] ICQ 73 (2004) 176 QGIG 573

573 Vol. 176 FRIDAY, 30 JULY, 2004 No. 14 ######################################################################################################################## INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Central Scaffolding & Rigging Services Pty Ltd AND Glenn Shane Verrall (No. 2) (No. C106 of 2003) PRESIDENT HALL 15 July 2004 DECISION -- 1 of 2 -- 574 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 July, 2004 By decision of 2 February 2004 now reported at 175 QGIG 578, I dismissed an appeal against the decision of an Industrial Magistrate on a prosecution under the Workplace Health and Safety Act 1995. All questions as to costs were reserved. The respondent subsequently sought costs. With a view to expedition and frugality, directions were issued for submissions in writing. The respondent complied with the directions. The appellant did not comply with the directions. Notwithstanding that the appellant was subsequently served with a letter over the signature of the Acting Industrial Registrar reminding the appellant of it’s obligation to file submissions and notifying the appellant that, if need be, the matter would be determined in the absence of submissions from the appellant – no submissions from the appellant have been received. The power to award costs against an unsuccessful party on a prosecution under the Workplace Health and Safety Act 1995 does not arise under that Act but under s. 335 of the Industrial Relations Act 1999, compare Golden Video Pty Ltd v. Chief Executive, Department of Employment and Training Industrial Relations (2000) 164 QGIG 298 and Marfleet v. The Brisbane City Council (2000) 164 QGIG 362. Materially, it is necessary for the appellant to show that the appeal was launched “vexatiously” or “without reasonable cause” relevantly. An appeal will be held to be launched without reasonable cause if it is launched in circumstances in which it has no reasonable prospect of success, compare Marfleet v. The Brisbane City Council (2000) 164 QGIG 362. This is such a case. The appeal was based on argument about s. 165 of the Workplace Health and Safety Act 1995 which was abandoned at the hearing, and on a submission about the Industrial Magistrate’s rejection of an application for further and better particulars which, to succeed, would have required this Court to reverse each of three recent decisions upon the same point. The submission about failure to order further and better particulars was not based on an argument that the earlier decisions were given per incuriam but, on the very argument previously rejected. The decisions are all reported: see Parr v. NQEA Australia Pty Ltd (2001) 167 QGIG 913, Newman v. Holyoak Industries (Qld) Pty Ltd (2002) 171 QGIG 390 and Bowpark Pty Ltd v. Williams (2003) 174 QGIG 531. I can think of no reason to decline to exercise the discretion at s. 335 of the Industrial Relations Act 1999. An appellant is entitled to challenge a line of authority, but a respondent should not be exposed to the costs of an audacious challenge which fails. I order that the appellant pay the respondents’ costs of and incidental to the appeal. In the absence of argument between the parties the costs are to be assessed by the Industrial Registrar in the same way as if this had been a Supreme Court matter. Dated 15 July 2004. D.R. HALL, President. Released: 15 July 2004 Appearances: Ms J. Cameron of the Division of Workplace Health and Safety for the Respondent. No appearance for the Appellant. -- 2 of 2 --