Beaverson Pty Ltd v Black [2001] ICQ 3 (2001) 166 QGIG 201

16 February, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 201 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate Beaverson Pty Ltd AND Veronica Judy Black (No. C2 of 2001) PRESIDENT HALL 6 February 2001 DECISION On 9 January 2001 Beaverson Pty Ltd filed an appeal against a decision of the Queensland Industrial Relations Commission given 19 December 2000 ordering Beaverson Pty Ltd to pay compensation in the sum of $10,200 to Veronica Judy Black within 21 days of delivery of the decision to the parties. The Notice of Appeal also sought a stay. In those circumstances, the matter was listed as a matter of urgency for 2.30 pm on 1 February 2001. On the afternoon of 31 January 2001 the appellant’s then solicitors – the solicitor’s instructions have since been withdrawn – sought to withdraw the appeal. The respondent on the appeal having indicated an intention to seek costs, the Industrial Registrar caused the parties to be informed that the hearing would go ahead at 2.30 pm on 1 February 2001 on the issue of costs. It must have been apparent from the outset that the appeal was almost unarguable. Although the appellant was fully aware of the proceedings in the Queensland Industrial Relations Commission, at no time did the appellant take the opportunity to appear, to cross-examine, to call evidence or to make submissions. One can understand a case in which a party who has so conducted himself in the Commission comes to this Court claiming not to have understood the documentation which he had received, asserting a good defence and seeking to have the matter re-heard (on terms as to costs). This is not such a case. The basis of the appeal (as amended) is that the Commission erred in failing to take certain matters into account on the question of quantum. The matters relied upon are all matters upon which, if the Commission accepted that they should be taken into account, the respondent to the appeal might well have called evidence. It is unnecessary to go to the cases in any detail. It is apparent that the appeal was instituted vexatiously and without reasonable cause. (I phrase the matter that way because this is not a case in which it is desirable to determine whether “or” at s. 335(1) should be taken to mean that it is sufficient to establish either that the application was “made vexatiously” or alternatively “made without reasonable cause”.) Consistently with Golden Video Pty Ltd v. Chief Executive, Department of Employment, Training and Industrial Relations (2000) 164 QGIG 298 and Marfleet v Brisbane City Council (2000) 164 QGIG 234, I hold that the noun “application” at s. 335 is sufficiently wide to include an appeal to this Court. The difficulty is that the costs sought to be recovered are the “professional” costs of a lay advocate with no legal qualification whatever. In Marfleet v Brisbane City Council (2000) 164 QGIG 362 at 362-364, I traced the history of the power to award costs through each of the statutes bearing upon the matters of conciliation and arbitration, industrial relations and workplace relations since 1916. At 364 I noted that it was arguable that neither s. 225 of the Workplace Relations Act 1997 nor s. 335 of the Industrial Relations Act 1999 conferred a power to award a litigant the costs charged by a lay advocate. That which has been put in this case has caused me to conclude that the argument is correct. Reliance has been placed upon the definition of “costs” to “include legal and professional costs and disbursements and witness expenses”. It is put that the respondent to the appeal will make a -- 1 of 2 -- 202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 February, 2001 disbursement in the sense that she will pay the lay advocate. One may put aside the obvious point that if “disbursement” has that wide meaning it covers everything included within the other forms of costs particularised by the definition, viz “legal and professional costs” and “witness expenses”. The submission ignores the meaning long since given to “disbursement” when juxtaposed with the words “legal and professional costs”. In that context “disbursement” is taken to mean “those payments only, which are made in pursuance of the professional duty undertaken by the solicitor and which he is bound to perform, or which are sanctioned as professional payments, by the general and established custom and practice of the profession . . .”, Re: Remnant (1849) 11 Beav 603 at 613 per Lord Langdale, MR., “. . . [W]here the payment is made by the solicitor purely as an agent, it is in no sense a disbursement by the solicitor in his professional character”, Re: Lamb (1889) 23 QBD 5 at 6 per Pollock B. See also Re: Kingdon and Wilson [1902] 2 Chancery 242 at 256-257, Sadd v Griffin [1908] 2 KB 510 at 512-513, Re: Taxation of Costs, Re: Solicitor [1936] 1 KB 523 at 530 and Re: Rowbotham, ex parte Skinner (1896) 22 VLR 135 at 139 per Madden CJ. In my view fees paid to a lay advocate are not recoverable pursuant to s. 335 of the Industrial Relations Act 1999. In fairness to the respondent to the appeal I should add this. The application for costs was conducted on the assumption that the respondent had an obligation to pay fees to the lay advocate. The assumption, at least in so far as it relates to the time-based fee for preparation said to have taken 19 hours, may be misplaced. That issue must now be resolved in another place. It has not been resolved in these proceedings. I dismiss the application for costs. Dated this sixth day of February, 2001. D.R. HALL, President. Appearances:– Ms K. Bow of Workplace Equity Consultants for the respondent. -- 2 of 2 --