Ainsworth v Carpentaria Gold Pty Ltd [1998] QIRC 58 (1998) 157 QGIG 93

r 92 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 1998 13 February, I 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 93 ########################################################## Ql:EE\SLA:'\D l�Dt:STIU:\L RELATIO\S C0\1MISSIOi\f WORKPLACE REL1\TIO\S ,\CT 1997 lndustriul Rt:/(ltions Art J9WJ -'· 295 - appli<:alJon for rcinsta1cm,n1 John Raymond i\in�worth Carp,:ntaria Ci11ld P1y Lid (No. Rl./08 of /997) CHIEF l\l>l:S-J'Rl.'\1. C0\>1\>1!SS!O.\ER IIALL 2<J fanuary I 99R Application for Rcins1a1�111,·n1 - Appli,:mio11 for Extcn.sioll or Time - \on-appearance· of Appli.::ant - B,�h Applications Di.,mi.-,scd - Application fN Cost, Grnntcd. DE( ·ts!( >.\ 2589 I _I.I)()(' -- 1 of 2 -- 94 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 1998 By an application filed with th� lndu�trial Registrar on 31 July 1997. 1ht applican t. John Raym<>nd Ainswonh, assens that he wa.� di.smissed from his employment with the respondent. Carpcntaria (iokl Pty Ud. on 17 Februa ry 1997. 'lhrough his application \1r Ainsworth so ught reinstatement and. in the alt..,r native. compensation for the. disrrus�al. He also sought an extension of time. The application should have l>een filed within 2) days of the dismi.<$al. (I was actually filed five and a half months after the dismissal. ·111e. explanation given for the delay is that the applicant did not obtain legal advice u ntil 17 June 1997. However. this does not explain why legal advice was not .sought before four months had elapsed, nor expl ain why the application was n ot filed until 44 day$ had e lap.sed from the taking of advice. ln any event. Co mmissioner Bloo mfield conduc1ed a telephon" confucucc invol"iog bO!h panie� on 17 Oct<>ber 1997. The telephon<> con fcren�e did no1 resolve the maner. The matter duly went to callover. The respondent indica1ed 1hat the gra n t of an ,:,><tension of time would l>e vigorously oppM�d and. i n those circumst ances. the hearing of the applicatio n for extension of time was set for 2.00 p.m. ou 27 Jauuary 199 8. The applic an t did n<)t appear. The solicitor who had acted f"r the applicant at earlier s1age-, did a.p�ar and informed me that his in.struction.< had bee n terminawd that morning. It i s common ground that notice of the. withdrawal of instn1ctions reached neither the respondent's solicitor nor the Commission until aticr 1.00 p.m. on 27 January 1998. In the circumstances described it was inevitahle that the applicati�>n for extension of time would be di.,missed an d t>n 27 January I 998 I did di.mliss the application for exten.sion of ti me. In ,h., abstm:c of an extension of time. the application it.•clf was in competent and for that reason on 27 January 1998 I dismis.sed the application for rein.<tatemtnt an d/or compensat ion . The respondent ask.< fnr cosis. Ii is unnecessary to go to the case.<. Tht:: narrow older view was that costs are awarded rn frivolous or vexatious cases. I find it difficult t o think <>fa clearer case of vexatio n. The rc.$pondent had not 1reated the matter lightly. An affidavit that, with a nnexures. ran 10 '-'ighteen pages had been f ikd on 22 January 1998 and deliwred 10 the applic.:anl's solicitor :it or alx,ut the . same time. The respondent·s counsel ha<l contacted my chamhcrs on the mornin g of 27 January 1998 to ad,·ise 1he authnriti.;,s to be cited. In tho.s-, circumsta nce.< it seems to me that costs shoul,I ho;: quantified in the way Ill which they wou ld h«w h,,en 4uantificd if the hearing had 1akcn place. the r.:spondcnl had be.:n succe.<sful and th.; procc,;:dings had h.:cn hdd 10 be vexatious. It was for 1ha1 re�L<on tha1 on 27 fanuary 1998 l llwardcd �<>st., to the respon dent on the scale: ,,f th" Magi.,1ra1t·s Coun scak that W,L< equal 10 .'ix momh'.< of the applicam·s salary. I al.<o direclctl th� filin g 1>f a hill of costs in order 1ha1 :, formal ,,rdcr p:,nicularising th" 4uantu111 1,, bo paid nught be drawn up. [htcd thi.< twenty-ninth dity 0f fanuary. 199&. D.R. I !ALL, Chid Industrial C \m,missioncr . .4.ppetirances:- Mr J. \fordoch in <truct,d hy \fr :-,;. 0'(\,,rnor ,,f \11\1 Holdings for the rc'spon ,knt. Operative Di,,_,: 27 Jan uary 19<)8 Dcl:ision - Cost� Awarded Rtk;,scd: 29 January I 998 ########################################################## l 3 February, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 95 -- 2 of 2 --