Department of Justice and Attorney-General v Carey (No. 2) [2002] ICQ 37 (2002) 170 QGIG 375

26 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 375 ########################################################################################################################## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 335 – application for costs Department of Justice and Attorney-General AND David Carey (No. 2) (No. C42 of 2002) PRESIDENT HALL 15 July 2002 DECISION By a decision of 25 June 2002, 170 QGIG 306, I dismissed an appeal against the decision of the Queensland Industrial Relations Commission about a preliminary jurisdictional point. The respondent to that appeal now seeks costs. The first submission is that there is power to award costs pursuant to s. 335(1)(a) of the Industrial Relations Act 1999. The argument is that the appellant appealed “vexatiously or without reasonable cause” in that the appeal had no objective prospect of success. Such a submission is always an awkward one. The Industrial Tribunal hearing the application for costs must comment upon the prospects of success of an application (here an appeal) which has been rejected. However, in this case, I entertain a clear view that the appellant’s case was arguable. One issue was whether the matter fell within the decision in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 196-203 or within the decision in Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202. In the event, this Court took the view that the latter decision imposed a gloss upon the decision in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 196-203, that the Commission had appreciated the gloss and that it was open to the Commission to find that the matter fell within the propositions advanced in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 196-203. Critical to that decision was the view adopted by the Court of the following passage in the Commission’s decision: “Although Mr Williams might have informed Mr Carey his contract was not being renewed and that he would not be required to come into the office for the balance of the period of his contract the manner of the communication of Mr Carey’s termination leads me to conclude that the employment relationship came to an end on that day (see Siagian v Sanel Pty Ltd [1994] 54 IR 185 at 196-203; compare Construction Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd [1998] 88 IR 202).”. This Court took the view that the passage indicated that the Commission was aware that a gloss had been placed upon the decision in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 196-203. However, it was always arguable that it followed from the word “compare” that the Commission was of the view that Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202 was inconsistent with the decision in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 196-203 and for that reason might be put to one side. If that submission had been accepted the Commission would have been held to have asked the wrong question. The Commission’s decision upon the preliminary jurisdictional point might well have been set aside. I am not satisfied that the appeal had no objective prospect of success. The second submission is that when one looks at the whole course of the appellant’s conduct since the application for reinstatement was filed, it is apparent that the appellant has sought to delay and frustrate the prosecution of the respondent’s application. Alternatively, it is put that the power at s. 335(1)(b) has been triggered by that same conduct. I adhere to the view which I expressed in Julia Ross Personnel v Rebecca Wain (2001) 166 QGIG 350 at 351, that s. 335(1)(b) is available where an appeal arises out of an application for reinstatement. However, I am quite unable to accept the submission that a review of the appellant’s conduct indicates that it has sought to delay or frustrate the prosecution of the respondent’s application for -- 1 of 2 -- 376 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 July, 2002 reinstatement. There have certainly been numerous applications. The purpose of the application has been to narrow the issues and to ensure that time and expense is not put into the resolution of significant factual matters unless it is necessary to do so. Doubtless the appellant has acted out of self interest. But the appellant has not acted vexatiously, has not acted without reasonable cause and has not engaged in any unreasonable act. The application for costs is dismissed. Dated 15 July 2002. D.R. HALL, President. Released: 15 July 2002 Appearances: Mr A.A.J. Horneman-Wren, instructed by McCullough Robertson, for the appellant. Mr T. Bradley, instructed by Agnew Consulting Pty Ltd, for the respondent. -- 2 of 2 --