D.J. Richardson Pty Ltd v Bryden [2001] ICQ 22 (2001) 167 QGIG 113

113 Vol. 167 FRIDAY, 8 JUNE, 2001 No. 6 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Training and Employment Act 2000 – s. 244 – appeal against decision of industrial magistrate D.J. Richardson Pty Ltd AND Malana Tamara Bryden (No. C19 of 2001) PRESIDENT HALL 29 May 2001 DECISION -- 1 of 2 -- 114 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 June, 2001 On 1 May 2001 Mr I.D. Jessup of Jessup and Partners Chartered Accountants was appointed as administrator of the appellant pursuant to s. 436A of the Corporations Law. The administrator seeks to withdraw the appeal. The respondent to the appeal seeks costs. The appeal was brought pursuant to s. 244 of the Training and Employment Act 2000. Neither that section or any other section of that Act empowers the Court to award costs on such an appeal. I accept that s. 335 of the Industrial Relations Act 1999 fills the lacunae. To establish a case for costs the respondent must establish that the appellant “made the application [for the appeal] vexatiously without reasonable cause”. Assuming that if a respondent establishes that an appellant instituted proceedings knowing that s/he did not have the funds to bring the matter to a conclusion nor in circumstances where s/he knew or ought to have known that an administrator or liquidator was likely to be appointed, the respondent establishes enough to trigger the exercise of the power at s. 335(1)(a), there is no material before the Court on the basis of which any such findings might be made. The respondent’s case is that the appeal was untenable. Save as to one of the grounds I accept that submission. Indeed, the awful truth is that the bulk of the grounds are contentions of fact rather than (alleged) errors of law. The one exception is the submission that s. 233 did not vest the Commission with power to rescind the contract ab initio. That ground does raise a question of law and is plainly arguable. If the argument succeeded it would be arguable that the Commissioner’s order for the payment of compensation for a period between the inception of the contract and the date of the order rescinding the contract ab initio should also be set aside. It seems to me that insofaras one mathematically can, the proper course is to award the respondent costs of those grounds of appeal which were (objectively) both vexatious and unreasonably pressed (because they could not succeed) but to reject the claim for the whole of the respondent’s costs. I order the appellant, D.J. Richardson Pty Ltd, pay 80% of the respondent’s costs of and incidental to the application for an appeal (including the application for a stay) assessed as those costs would be assessed if this had been a matter in the Supreme Court of Queensland. Dated this twenty-ninth day of May, 2001. D.R. HALL, President. Released: 29 May 2001 Appearances:– Mr R. Armstrong of Roberts Nehmer McKee (Solicitors) for the respondent. Mr T. Miskiewicz of Jessup and Partners, Chartered Accountants, for the appellant. -- 2 of 2 --