Dilena v Queensland Ambulance Service [1999] ICQ 68 (1999) 162 QGIG 269

268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 November, 1999 5 November, 1999 pRESIDENT HALL QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE INDUSTRIAL COURT OF QUEENSLAND buf11strial Relario11s Act /999 - s. 341 (I) - appea l from decision of in dustrial commission Shane Dilena AND Queensland Ambulance Service (l'io. CSI of 1999) DECISION 269 26 OclOber I 999 On 6 June 1998 the Australian Liquor, Hospitality an d Miscellan eous Workers Union, Q ue ensland Branch, Union of Employees made application for the reinstatemen t of Shane Anthony Dilena in his pre vious employme nt l>y Queensland Ambulan ce Service. The employee organ isation subsequently withdrew. By consent, Mr Dilena was subs tituted as t he applicant. Ultimately, Que ensland Ambulance Service filed an application seeking an order that Mr Dilen a' s application for reinstatement be struck out or dismissed. On 25 June 1999 the Queen sla nd fodustrial Relations Commission release d a decision by w hich the Commissioner w ho heard the matter found "I am satisfied the proceedings have been maintained for an ulterior purpose which am()unts to an abuse of process and that it is not in the public interest to proceed further". The Commissioner went on to order that the application for reinstatement l>e dismissed. Mr Dilena appealed against that decision. In the event, the appeal was not pursued. On 18 Octobe r J 999 it was formally dismissed. After dismissing ,\1r Dilena' s application for reinstatement the Commissioner dealt with an application for costs by Queensland Ambulan ce Service. The Commission er said: "The applicant QAS also soughc an order for costs, in face indemnity costs. This matter was heard in Townsville on affidavit. material. Costs have been kept to a minimum and I take into account the probable limited ability of the respondent to pay costs. Section 225 of the Act relating 10 c-osts doe s not apply to this application because this is not au application brought und er s. 218. However. s. 350 of the Act probably does apply but in all the circumstance s, I prefer to simply order that the respondent pay the expenses of having this hearing in Townsville (see s. 346(c)) and I would limit those expenses to thre e economy class airfare s. J therefore order that Shane Anthony Dilena pay the applican t's expe nses which I fix at $2376 within a period of three mo111hs.". By its response and counter proposal, Queensla nd Ambulan ce Service ap pealed aga.inst that de cision. That appeal has been pursued. There might be some argument as to w hether the relevan t section i $ s. 225 or s . 350. The difficulty arises because whilst, in con formity with /11d11strial Court Rules 1997, QAS brought its application (No B550 of 1999) by way of a fresh application rather th an by an applica11on in the existing reinstatement application (No. B46 of 1998). there is scope for argument that in pith and substance ii was entirely a n alogous to an application in application No 846 of 1998. It is not necessary to resolve the point. It is dear that the power at s. 350 includes po wer to aw ard indemn ity costs. It seerns to me to be equally cle ar that, once triggered, the power at s . 225 include s power lo award indemnity costs. How ever, in both cases , che power vested is discretionary, compare Keller v. Mijin Pty Ltd trading as Ipswich Colour Copy Shop 154 QGIG 362 at 363 per Ambro.�e. Acting Presiden t. The discretion is vested rn the Commissioner hearing the maner, not in the Industrial Court. The appeal Wa$ brought on the ground of eITor of law. It is necessary for the Queen sland Ambulance Service to bring its case within the principle of House v . The King (I 936) 55 CLR 499 at 504-5. There is nothin g to indicate that the Commissioner acte d upon a wrong principle or took extrane ous or irrelevant mailers into account. There is justification for distinguishing between the airfares and the other costS which we re sought. It was a circumstance of aggra vation that Mr Dil ena had unreasonably caused those (otherwise avoidable) costs to be incurred by failing to attend al a hearing scheduled for Brisbane . In these circumstan ce s to anack th.e decision, Queensland Ambulance Service has to attack it on the basis that it i s unreasona ble or plainly unjust The difficulties of welding in demnity costs onto the Commission 's history and policy on costs is rehe arsed at Patterson v. Medical Benefits Fund ofAustralia Ltd 160 QGJG 330. This, of course, is a worse case than that. 1f the Commissioner had awarded indemnity costs, I should not have interfered. But the decision is not unreasonable or plain ly un1us1. It is a decision on a set of circumstances upon which reasona ble people might we ll take en t.irely different views. No attempt has been ma de to argue that, assuming the award of indemnity costs 1101 to be appropriate, the exercise of discretion mi scarried in any event. Given that such an argument was n ot sugge sted by the response and counter proposal, or the wriuen submission - all of which are in Mr Dilena's possession - and that' Mr Dilena did not appear, tl1e d ecision not to press such an argument was entirely proper. I dismiss the cross-appeal. Daced chis twemy-sixth day of October. J 999. D.R, HALL, President. Released: 26 October 1999 Appearances:- Mr R.G. Bain and with him Mr C. Murdoch instructed by Crown Law Office for Queensland Ambulance Ser vice. No appearanc e for the appellant. ###ll##################################################################################ilit################################/1## -- 1 of 1 --