Constance v CSR Sugar [1999] QIRC 222 (1999) 162 QGIG 183

182 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 October, 1999 22 October, I 999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 183 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER BLADES l11dustrial Relations Act 1999 - s. 335 - applica1ion for cost� Christopher Michael Constance AND CSR Sugar (No. B1954 of 1998) DECISION 12 Oc1ober I999 On 18 June. 1999 I released the decision in Constance v. CSR Su!iar and by virtue of that dec ision, I ordere d that the resp ondent pay compensa1ion assessed a1 $4.000 lO 1hc applicam. The applicam ha s now made an application for cos1s. on an indemnity basis. toialling $ I3,558.50. The responcleni sugges1e d that the law governing the award of c osts was now s. 335 of the lndusrnal Relations Act /999 because the application for costs was not lodged until 8 July 1999. However, I do not agree and conside r that s. 720 of 1ha1 Act applies chapter 5, pan 2 of the Workplace Relmio11s Ao 1997 10 1hi, dismissal which occurred on 23 November 1998. Sec tion 225 of the laner Act deals with an application fo r costs and that section is located wi1hin chapter 5 pan 2. Section 225(1)(b) of the Workplace Relations Act 1997 then re levantly provides tha1 costs may be ordered if the Commission is satisfied 1hat 1he other party caused costs to be incurred because of an unreasonable act or omissi on connecte d with the conducl of the appl ication. Th1.s application may be shonly deah with. The applicant applied fo r rein statement. At the confe rence befor e Commissioner Bloomfield on 2 February 1999, 1he applican t sought reinstatemen1. The respondent was immoveable. whe1her as 10 r einstatemenl or compensation. No compensation was ever sough! by the applicant. During his or al evidence at lhe hearing, he expressed the desire for reinstaternem and fo r pu rsuing his career pa1h within the company. During final submission s, Mr O'Donnel l made n o mention of r emedy until prompte d by the Commission. The applicant did not adduce any evidence during the hearing on which an amount of compensation could be calculated. That evidence was elicited by the respondent during cross examination. To all intents and purpo ses, the only remedy sought was reinslatemcm. There was an occasion after the hearing had c ommenced when Mr Lawson offe red to negotiate compensati on but before that offer was resp onded 10 by Mr O'Donnell the next morning, ii was withdr awn . That was the only occasion when monetary compe.nsation was mentioned by either parry. QGIG22/I0/99 -- 1 of 2 -- 184 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 October, 1999 It was only upon my prompting during final submissions, Mr O'Donnell conceded 1ha1 reinstatement was inappropriate and then sought compensation. At that time. the ca�e was already concluded. The costs had been expended. The applicant failed in his application for reinstatement. Reinstatement was inappropriate. He was unsuccessful. Why then should he be e ntitled to an award of costs? What was the unreasonable act or omission of the respondent, connected with the conduct of the application, which caused these costs 10 be incurred? The respondent was entitled to resist the application for reinstatement and was successful in that regard and accordingly could not be said to have been guilly of some unreasonable act. The respondent's conduct was reasonable because the respondent was successful. There we re no demands made for compensation at all. At the stage that compensation was mentioned the money had been spent. An award of costs is a discretionary exercise. In the exercise of that discretion. taking these matters into account, I see no reason why costs should be awarded against the respondent. Whilst it is not necessary for further comments because of the decision I have made, I think I would be remiss i f I did not say something about the application for "indemnity" costs. Commissioner Bougoure in Goldman v. Data General Australia Pty Lid (1993) 143 QGIG 197 thought that the quantum of costs should be just and reasonable and should compensa1.e for costs reasonably incurred. Chief Commissioner Hall (as he then was) in Pater.w11 v. Medical Bene.fits Fund <if Australia Ltd (1999) 160 QGIG 330. whilst conceding that indemnity costs could be ordered as part of the general discretion, refused 10 award indemnity cos ts. Indee d, there could be many cases where indemnity costs arc entirely appro priate but I would suggest thar an award should generally be for "reasonable>' costs. However. the Workplace Relations Act 1997 in s. 334 prohibited legal representation unless the other party consented. There was no conse nt in this case. The respondent objected to legal representation in a lener dated 15 January, 1999. The only notation of any relevance on the Certificate issued by Commissioner Bloomfield on 2 February. 1999. was that there was a strong objection by the respondent to future legal representation. How then can it be fair. jus1 or reasonable for a party who has refused 10 consent to legal repre sentation 10 be ordered to pay costs which include $8,590 for 1he Solicitors firm and $2,825 for a Barrister? Why have the provision in the legislation restricting the appearance of lawyers if not 10 avoid a bill of costs of s,gni ficant quantum? The application for costs is dismissed. I order accordingly BJ. BLADES. Commissioner. Released: 12 October 1999 Appearances:- Mr j_ O'Donnell, instructed by Mr J. Wald on of Spina Kyle Roati Solicitors. for the applicant. Mr J. Lawson, ofJ.F. Lawson and Associates, for 1he respondent. ############################41############################################################################################## 22 October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 185 -- 2 of 2 --