Butler v Docklea Combined Services [2000] QIRC 99 (2000) 165 QGIG 161

20 October, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 161 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331(c) and s. 335 – application for costs Shane Victor Butler AND Docklea Combined Services (Nos. B873 and B1404 of 2000) COMMISSIONER BLOOMFIELD 11 October 2000 Reinstatement – Extension of time application refused – Application by Respondent for Costs – Arbitrated Matter – Costs application falls squarely within the Commission’s discretion pursuant to s. 335 of Act – Costs of $800 awarded to respondent. DECISION On 5 September 2000 I issued a decision in which I refused an extension of time application by Mr Shane Victor Butler (case B873 of 2000). In doing so I found that Mr Butler had voluntarily resigned his employment and, as such, was not entitled to seek relief under Chapter 3 – Dismissals of the Industrial Relations Act 1999. I also indicated that had I not found that Mr Butler resigned I would have declined to exercise my discretion to extend time within which to lodge the application because the delay had not been satisfactorily explained. In dismissing the application I indicated that I would consider an application for costs by the employer on the basis that the applicant should never have caused it to expend money to defend the application. I asked the employer to file a statement of costs for my consideration. A statement of costs (filed as application B1404 of 2000) was subsequently received from Queensland Chamber of Commerce and Industry, Industrial Organisation of Employers (QCCI) for and on behalf of Docklea Combined Services. The application sought costs of $3,956.00 comprised as follows:– $ 1) Instructions to defend 704.00 2) Preparation for trial 2,120.00 3) Advocate 778.00 4) Other applications to Court 314.00 _______ 3,916.00 Travel for Mr Dutton Gold Coast to Brisbane (x2) 40.00 _______ 3,956.00 The amount claimed is grossly excessive. Although the respondent employer, and its advocate, were inconvenienced because of the failure of the applicant’s representative to attend a conciliation conference and by his failure to provide material for the extension of time hearing within two successive timeframes set out in Directions Orders the matter was not complex. Similarly, the actual extension of time hearing was relatively short. It was also not necessary to file the application for costs. It is clear from the facts of the case spelt out in my earlier decision (165 QGIG 50) that Mr Butler’s application never had a chance of success. In my view the application was one made either vexatiously or without reasonable cause (or both) and/or was one which caused costs to be unreasonably incurred by the respondent. Accordingly, the matter is one which falls squarely within the Commission’s discretion pursuant to s. 335 of the Industrial Relations Act 1999. In all of the circumstances I am prepared to allow costs of $800.00 in connection with defence of the application. That amount is not based upon any particular scale but takes account of the fact that the respondent employer was required to brief QCCI to appear in respect of the initial conciliation conference ($300.00) and the extension of time hearing ($300.00). I have also made an allowance for time spent by QCCI in chasing material from the applicant’s representative which was supposed to have been filed in accordance with the Commission’s Directions Orders ($160.00). Costs of travel from the Gold Coast to Brisbane by Mr Dutton have also been allowed ($40.00). The Commission orders that the amount of $800.00 be paid by Mr Shane Victor Butler to Docklea Combined Services within twenty-two days of the date of release of this decision. The Commission determines and orders accordingly. -- 1 of 2 -- 162 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 October, 2000 A.L. BLOOMFIELD, Commissioner. Appearances:– Mr M. Heffernan, of Employment Advisers (Aust), for Mr S. Butler the Applicant. Ms C. Doyle, with Mr M. Smith of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, with Mr S. Dutton for Docklea Combined Services. Released: 11 October 2000 ########################################################################################################################## -- 2 of 2 --