Doyles Construction Lawyers v Serratore (No. 2) [2002] QIRC 76 (2002) 170 QGIG 103

31 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 103 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 342(2) – application for leave to appeal Doyles Construction Lawyers AND Carmela Serratore (No. 2) (No. B1652 of 2001) PRESIDENT HALL COMMISSINER BROWN COMMINSSIONER ASBURY 20 May 2002 DECISION By a decision of 27 February 2002, now reported 169 QGIG 196, we dismissed the application for leave to appeal. We reserved the question of costs. As a result of a directions hearing on 25 March 2002, the issues relating to costs were dealt with by way of written submissions. We are not satisfied that the respondent should be allowed her costs of and incidental to the application for leave to appeal. The application was not made vexatiously or without reasonable cause. It was the second application for leave to appeal under the Industrial Relations Act 1999 to be determined. The provision dealing with appeals by leave to a Full Bench of the Queensland Industrial Relations Commission, viz s. 342(2), poses considerable difficulties in construction, particularly about the grounds upon which such an application may be pressed. The case presented by the applicant was plainly arguable. The circumstance that the application failed does not lead to the conclusion that, at the time it was made and pursued, it had no objective prospect of success. -- 1 of 2 -- 104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 May, 2002 Reliance is placed also upon s. 335(1)(b). We consider that the decision of McKenzie, President in Goldman v Data General Australia Pty Ltd 144 QGIG 379, albeit based upon the provisions of the Industrial Relations Act 1990, is descriptive of the correct approach to be adopted in assessing whether there have been unreasonable acts or omissions in connection with the conduct of an application. We are quite unable to isolate any conduct of the applicant deserving of such a description. Some complaint is made that additional costs were incurred because both the application for leave to appeal and all that would be argued upon the appeal were put at the same hearing. The short answer is that at the directions hearing of 14 November 2001 the parties were asked directly whether the matter should be severed or dealt with on the one day. Mr Martin, SC for the applicant submitted that the case was one in which severance was not practicable. Ms Stilgoe, Solicitor, for the respondent, said:– “Mr President, this is one of those rare instances in this case where we agree and it is probably going to be the last occasion on which we agree. The matters are inextricably linked. The questions in both the applications for leave and the appeal itself.”. In those circumstances, submissions that the applicant’s conduct in pressing both arguments was in some way abusive cannot be sustained. We dismiss the respondent’s application for the costs of the application for leave to appeal. Argument has been addressed to us about the costs of the trial before Commissioner Blades and an earlier, (interlocutory) application before Commissioner Bechly. Given that the application for leave to appeal has been dismissed, we are not satisfied that those matters are properly before us. In any event, Commissioner Blades who heard the trial is in the best position to exercise the discretion which will arise if the elements of s. 335 are satisfied. There is a further consideration that there are issues of fact between the parties as to their dealings before the Commission. Those matters should be resolved by a Commissioner sitting alone. As to the costs of the adjournment of the application for leave to appeal, our understanding was that it was granted on an undertaking by the applicant for leave to appeal to pay the costs thrown away by the respondent. There is now disputation as to the content of that undertaking. The Queensland Industrial Relations Commission has no role in the discipline of the profession. The differences between the parties must be resolved elsewhere. Dated 20 May 2002. D.R. HALL, President. D.K. BROWN, Commissioner. Appearances:– Stubbs Barbeler Grant, Solicitors, for the respondent. Hopgood Ganim, Lawyers, for the applicant. I.C. ASBURY, Commissioner. Released: 22 May 2002 # -- 2 of 2 --