Bruce Low (Medical) Pty Ltd v Dowling [2000] QIRC 89 (2000) 165 QGIG 77

22 September, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 77 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 335 – application for costs Bruce Low (Medical) Pty Ltd AND Renae Gai Dowling (No. B1763/99) COMMISSIONER SWAN 6 September 2000 Application for costs by Respondent – Respondent warned about costs – Original application had merit – Applicant not warned about costs – Application for costs dismissed. DECISION On 5 July, 2000 the Commission dismissed an application for reinstatement made by Ms Dowling against Bruce Low Medical Pty Ltd. The respondent now asks that the applicant in that matter, Ms Dowling, pay the costs it incurred in defending the claim made by her. Section 335 of the Industrial Relations Act 1999 relevantly states:– “(1) 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; or (b) for an application for reinstatement – the party caused costs to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application. (2) In this section – ‘costs’ include legal and professional costs and disbursements and witness expenses.” I note that at the initial conference held before the Commission prior to the formal hearing, the Commissioner warned the respondent that costs may be awarded against it were the matter to proceed. As is occasionally the case in these matters, evidence adduced during the course of a hearing can place a different perspective on issues than might have first been held by a Commissioner when the matter was at the conference stage. That apparently occurred in this matter. -- 1 of 2 -- 78 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 September, 2000 In making my decision, I accepted evidence that Ms Dowling had always intended leaving the employment of Dr Low, whilst acknowledging that Mrs Low was a contributor to her state of ill-ease in her employment. With that and other issues in mind, however, I have exercised caution in addressing the question of whether to award costs in favour of the respondent. Ms Dowling is a relatively young woman who, whilst represented, clearly had a strong argument in her favour in terms of her interactions with her aunt, Mrs Low. I deemed the work environment to be unpleasant for Ms Dowling largely as a consequence of Mrs Low’s behaviour. While that point ultimately was not the determinant in the case, I am unable to form the view that Ms Dowling inappropriately pursued her claim against her former employer sufficient to enliven the relevant costs section of the Industrial Relations Act 1999. Certainly, Ms Dowling was not on warning from the Commission at the conference stage to desist from pursuing her claim. Many issues raised in the formal hearing were not mentioned in the final reinstatement decision, however, Ms Dowling was herself the subject of many highly disturbing allegations made by the respondent. If anything, it appeared that some witnesses were content, had they been so permitted, to enter into a “boots and all” fight to the death to discredit each other. Regrettably, family feuds can occasionally follow this course. The matter is best left where it now stands. The parties should bear their own costs. As such, I dismiss the application for costs against Ms Dowling. Dated this sixth day of September, 2000. D.A. SWAN, Commissioner. Released: 7 September 2000 Appearances:– Mr C. A. White, instructed by Roberts Nehmer McKee Lawyers, for the Applicant. Mr M. Pope, instructed by Wilson Ryan & Grose Lawyers, for the Respondent. -- 2 of 2 --