Cuda v The Atherton International Club [1998] QIRC 173 (1998) 157 QGIG 324

_.-r'F· 324 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 1998 ######lt#####################################/1############# QUEE�SLAND INDUSTRIAL RELATIONS COMMISSION /nd11strial Relarions Act /990 s. 295 - application for reinstatement :\1ary Cuda ANO The Atherton lntern.ational Club (No. 842 of 1997) COM:-.11ss10:--:ER \'l TIER 8 April 1998 Application for Costs - Written Submissions - Previous Recommendation by Commission - Cl>nference by Commission - Case Law -Costs Granted. DECISION The Commission in handing down a decision in which it awarded compensation to the applica nt in.stt11cted the parties 10 prnvide written sub missions in respect to costs . These have now been received. The submission of the applicant was th,,t the respondent displayed a complete failure to paiticipatc in settlement negotiations and as a result of that unfair, unreasonable and improper conduct, the applicant incurred unnecessary costs. Reference was made LO a special meeting held by the respondent where members voted in favour of a resolution to '"defend LO hearing" rather Lhan conciliate. Reference wa5 also made to a subsequent recommendation by Chief Jndustrial Commissioner Hall to the respondent to reconsider its position to enable the matter 10 be resolved by agreement. A copy of the letter from Chief Industrial Commissioner Hall was included with the submission. On behalf of the applicant it was submitted that the applicant had no alternative but 10 proeeed to hearing. The respondent was advised that should the matter proceed that the. applicant would be seeking costs. It was contended that the applicant had done everything possible to mitigate her loss and th is had reduced the amount of compensation payable by the respondent. I was referred to the decision in Goldman v. Data General Australui Pry Ltd (143 QGIG 197•9). It was submitted that the present case wa.1 one of abnormal circumstances and in line with the aboveme11Lioned case and that the Commission should exercise its discretion in favour of the applicant . The applicant sought legal and represenLaLion costY as well as other costs incurred in prosecuting the case. Mr Wh1Le, representative for the respondent, stated !hat his client should not be liable for the legal cost incurred. He stated that at the first conference on 26 March 1997. he advised that Lhere would be no consent Lo legal representation. Therefore the applicant's substan tial legal costs should not be held to be the responsibility of the respondent. On the question of the recommendation from Chief Industrial Commissioner Hall, I was advised that at a further conference before the Commission in Cairns on 30 April 1997, no recommendation was made Lo the respondent to set!le and a.< a consequence the mat1er proceeded to a hearing. He said that the case was a traditional one, the respondent had an arguable case, and had the respondent followed more appropriate proeedures, the application may have been successfully resisted. He said it was therefore not unreasonable for the respondent to resist the application. I was referred 10 a .<rtatement in Goldman v . Dara General A11stralui Pty Lid in respect to 1his n1attcr. Conclusions Jn my deci!tion dated 5 February 1998, I determined that the proce.ss u�ed with regard LO termination of the applicant was not fair in terms of the Act, i.e. the applicant had been denied procedural fairness. Had this occurred the termination may well not have taken place. In considering whether costs should be awarded. I have had particular regard 10 the recornmcndati.on by Chief lndusuial Commissioner Hall to allow for further negotiation.� and a suhsequent Comm.is.�ion conference in Cairns. To continue 10 have a motion on the books which limite d the opportunity of negotiating a settlement in the context of what occurred .seem, to me to be unreasonable. It i.s not a position which, in the circum�ances, was sound, defonsihle or well founded. I have had regard to the decision by His Honour, the President, where in he referred to reinstatement cases being more akin to party lO party litigation and !hose who engage in them should not be surprised if a more traditional approach 10 Lhe awarding of costs is taken (see Toowoomba City Council v . Scha11mberg 153 QGIG 541-3 and u11lterv. Lucas 155 QGIG 1058). In term< of those decisions and the commentS I have made above, appropriate circumstances exist for the awarding of some cosls incurred by the applicant. I do not propose to award "legal" cosLs given that there was no consent Lo legal representation and this was known at a relatively early date. I propose to award non '"legal'' cost< which would have been incurred after the second conference before the Commission in Cairns. This includes some provision for preparation costs, hearing costs an d inciden tal expenses. I have globally assessed the..se at S3,000. 1 award an amoum of $3,000 against The Atherton International Club 10 be pdid 10 the applicant 'vlary Cuda within 21 days of 1hc release of this decision. 24 April, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Order accordingly. B.J. /\:UTTER, Commissioner. .4ppearcmces:- Mr. L. Nicholson for the applicant. Mr R. White for The Registered and Licensed Clubs Association of Queensland, Union of Employers for the respondent. Released: 8 April 1998 ################ll###############/1####11##1/##########lt#lt#### 325 -- 1 of 1 --