Bradford v Collison Finance & Investments Pty Ltd (ACN 079 188 524) (No. 2) [2003] QIRC 14 (2003) 172 QGIG 1042

1042 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 February, 2003 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 335 – costs Dean Bradford AND Collison Finance & Investments Pty Ltd (ACN 079 188 524) (No. 2) (No. B1463 of 2002) VICE PRESIDENT LINNANE 4 February 2003 Unfair contract application – Issue of whether Commission doing complete justice in proceedings – Applicant unable to avail himself of costs under s. 335 of the Act – Section 334(1)(a)(i) application essentially an application for costs – Specific costs jurisdiction of Commission found in s. 335 – Application dismissed – Industrial Relations Act 1999 – ss. 134(1)(a)(i) and 335. DECISION [1] This is an application by Dean Bradford (Applicant) pursuant to s. 334(1)(a)(i) of the Industrial Relations Act 1999 (Act). On 27 November 2002 I released a decision wherein I awarded, inter alia, the Applicant an amount of $33,800.00 in respect of a contract of employment which I varied pursuant to s. 276 of the Act: see Dean Bradford v Collison Finance & Investments Pty Ltd (2002) 171 QGIG 760. [2] The Applicant now seeks a further amount of $9,929.00 which is itemised as costs relevant to a scale under the Uniform Civil Procedure Rules. Section 335(1) of the Act empowers the Commission to grant costs and provides as follows: “The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied – (a) party made the application vexatiously or without reasonable cause; or (b) an application for reinstatement – 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.”. [3] The Applicant is unable to recover under s. 335(1)(a) of the Act as he is the party that made the original application, and further, as he was successful in that application it was not one made “vexatiously or without reasonable cause”. As the original application was made under s. 276 of the Act, and was not an application for reinstatement, s. 335(1)(b) of the Act is also not available to the Applicant. [4] I must state that, had s. 335(1)(b) of the Act been available to unfair contract applications, there were reasonable grounds for awarding the Applicant the costs sought on the basis of unreasonable acts or omissions on the part of the Respondent connected with the conduct of the application. In this regard, the following material may have been relevant: (i) the Respondent made an offer of $4,000.00 on or about 8 November 2002. A further offer of $13,500.00 was made on 19 November 2002 approximately one hour prior to commencement of the hearing. On the issue of the offers, I do note the objection taken by Mr Logan SC that the offers were made by the Respondent and privilege attaches to such offers – a privilege that was not waived at any time. If I were in a position to grant costs under s. 335(1)(b) of the Act (e.g. in a reinstatement application) then I may not have considered the offers made by the Respondent. Had the Applicant made offers to settle on terms similar to or less than the actual amount awarded, and the Applicant had reserved its right to use the correspondence on the question of costs, then the Applicant would have been in a far better position. If I had to determine the admissibility of the offers to settle then I am inclined to the view that they were inadmissible. (ii) the manner in which the Respondent defended the application caused the Applicant to incur substantial additional costs. [5] This is a case where, in my opinion, the Applicant has been denied justice. The Applicant’s claim for $9,929.00 in costs is a claim at the Magistrates Court Scale only. I have no doubt that the Applicant has incurred substantially more costs than that amount in prosecuting his claim. The Applicant has thus received only a portion of what he was entitled to, given that his costs have had to be borne by him. Even if the Applicant had been able to pursue an application under s. 335(1)(b) of the Act, the limited nature of that costs jurisdiction would, in my opinion, not compensate the Applicant appropriately. [6] I don’t know whether the fact that s. 335(1)(b) is limited to applications for reinstatement is purposive or otherwise on the part of the legislature. It does appear to me to be unfair to deny persons pursuing applications under s. 276 costs, where persons pursuing unfair dismissal applications in similar circumstances are not denied costs, albeit the circumstances in which they can seek costs are limited. Perhaps it could be that persons pursuing a remedy of reinstatement under Part 4 of Chapter 4 of the Act may be entitled to seek costs under s. 335(1)(b), whereas a person pursuing any of the other remedies outlined in s. 120 of the Act (e.g. re-engagement or compensation) could not access s. 335(1)(b) of the Act. [7] The fact that the Applicant is unable to avail himself of s. 335 of the Act and there is no power conferred by s. 276 of the Act to make an order for costs, has caused those representing the Applicant to be somewhat innovative. The application is under s. 334(1)(a)(i) of the Act i.e. the Applicant is seeking the Commission to make a decision “it considers necessary for … doing complete justice in proceedings before it…”. [8] The Commission has been granted a specific, although limited, power to award costs which is found in s. 335 of the Act. Whilst I am of the view that “complete justice” has not been done to the Applicant in that, he has had to forgo much of his award of compensation in outlays associated with the preparation for, and the hearing of, his successful unfair contract application, I am further of the view that in the awarding of costs I am limited to the power found in s. 335 of the Act. [9] In those circumstances I dismiss the application. [10] Mr Logan SC has foreshadowed that, if the Applicant’s application for costs is dismissed, that his client reserves its right to pursue an application under s. 335(1)(a) i.e. that the Applicant’s application was made vexatiously or without reasonable cause. In those circumstances, I do indicate that the Respondent will have some difficulty convincing me that the application was pursued vexatiously or without reasonable cause, particularly where: -- 1 of 2 -- 21 February, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1043 (i) I have formed the view that “complete justice” has not been done to the Applicant because he has had to outlay costs which, under s. 335 of the Act, cannot be recovered; and (ii) s. 334(1)(a)(i) does not appear to have been argued in support of the granting of costs on any previous occasion. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details: Appearances: Mr J. Shepley, instructed by Primrose, Couper, Cronin, Rudkin Solicitors, for the Applicant. Mr J. Logan SC, instructed by Nicol, Robinson, Halletts Lawyers, for the Respondent. -- 2 of 2 --