Earner v Queensland Investment Corporation and QIC Properties Pty Ltd (No. 2) [2002] ICQ 1 (2002) 169 QGIG 132

132 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 February, 2002 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Colin Earner AND Queensland Investment Corporation and QIC Properties Pty Ltd (No. 2) (No. C43 of 2001) PRESIDENT HALL 7 February 2002 DECISION The appeal by Colin Earner against the decision of the Commission reported at 167 QGIG 267 was dismissed on 8 November 2001. The matter of costs was reserved. With a view to minimizing further expenditure submissions on costs were taken in writing. It is (inevitably) common ground that the power to award costs is vested by s. 335(1)(a) of the Industrial Relations Act 1999 which provides as follows:– “The Court or Commission may order a party to an application to pay costs incurred by another party only if satisfied: (a) the party made the application vexatiously or without reasonable cause;”. The application was also conducted on the basis that “vexatiously or without reasonable cause” was not a composite expression, and on the basis that an award of costs might be made if an application was shown to have been made “vexatiously” or alternatively shown to have been made “without reasonable cause”. Consistently with the observations of Wilcox CJ in Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 257 both parties accepted that “without reasonable cause” set the lower standard for the award of costs. In my view even the lower standard was not reached. On the appeal the appellant advanced two contentions. One, he was not denied access to s. 276 of the Industrial Relations Act 1999 because he did not have an annual wage in excess of $71,200 when he made the application under s. 276(1). Two, he was not denied access to s. 276 because access was denied only to public service officers employed on tenure under the Public Service Act 1996. There is a passage in the decision of the Commission in Braunack v Couriers Please (2000) 165 QGIG 225 which supports the second contention. On the appeal, I accepted the respondent’s submission that the passage was infelicitous. But in circumstances in which the Commissions decision in Braunack v Couriers Please, ibid, had been affirmed on appeal, see 166 QGIG 141, it was plainly reasonable to test the second contention. On any view of the matter, the second contention was an arguable point of law, compare Kanan v The Australian Post and Telecommunications Union (1992) 43 IR 257 at 264 per Wilcox CJ. It was not unreasonable to reagitate the first contention in the same appeal. The point had not previously been argued in the Court. That is sufficient to dispose of the matter. It is unnecessary to consider whether, as the appellant contends, it is the effect Thompson v Hodder (1989) 21 FCR 464 at 470 and Re: Crozier [2001] FCA 1665 (27 November 2001) require that additionally to establishing that the point raised on the appeal was not reasonably arguable, an applicant for costs must show that the case is an exceptional one perhaps verging on an abuse of process. I dismiss the application for costs. Dated this seventh day of February, 2002. D.R. HALL, President. Released: 7 February 2002 Appearances:– Ms A. Milner of Blake Dawson Waldron, Solicitors on behalf of the appellant. Mr A.K. Herbert instructed by McCullough Robertson, Solicitors, for the respondent. -- 1 of 1 --