Culhane v St Joseph's College [1995] QIRC 337 (1995) 149 QGIG 1245

1244 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [25 Aug ust, 1995 25 August, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1245 ####### ######### ############11####1/############II######## QUEENSLAND INDUSTRIAL RELATIONS COMM ISSION Jndusmal Rela rions Ac t 1990 s. I 06 -· application for costs Barry James Cul hane AND St. Joseph ·s College (1\'o. 8727 of 1993} COMMISSIONER DEMPSEY I0 August 1995 App li cation for Cos ts - .lurisdiclion to Award Costs - Goldman v Oala General Leading Awhoriry - Unusual or Abnonnal Circumstances - Complex Medical Ev idence - Offence Against Criminal Code - Objec ti on to Legal Repre se ntation - Certification by Commission - Ex penses and Cos ts Awarded. DECISION In Case No. 13727/93 the app licant Barry James Culhane sought reinslalcment to hi s fom1cr position which was that of teacher/librar ian at St Josephs Co lle ge Nudgee (refer QGl(i 31 March 1994 Vo l 145 Pages 708-7 12 ). The decision of the Co mmission was appealed and ultimately determined by his Honour McKenzie P. (refer QGIG 16 December 1994 Vol 147 Pages l54& - 1556). 13y way of correspondence dated I 8 March 1994 t he Solicitors acting for t he app li cant a dv i se d that as a result of tht: ir success at fi rst instance (decision from th e Bench) they \vCre instructed hy their client to seek ct1sts. however. in th e circumstances it would be prudent to await the handing 00\~11 of a fom1al decision. On 8 December 1994 further correspondence was received requesting that the mailer be li , ted for hear in g g iven that the reasons for the decis ion from the Bench ha d been handed dom1 and th at the appeal from that decision had also he t! n detennined. The submissions of the parties were heard on 6 March 1995. 0oth partie, were reprc.sentcd by Counsel. In itially it was suggested by Cou nse l for the app lic ant t ha t the Commission has j urisdiction to award costs wi th t he proviso that there must he certification as mentioned in s. I06. ·'s.I06 Each of them, the Industrial Court and Industr ial Co mmi ssion . has j urisd iction to award eosL, in a ll proceedin gs before it including matters dismissed or no t proceeded w ith for want of jurisdiction. but. ex.ccpt whe re th is Act otherwise pcnnits. no costs are to be a ll owed for any Counsel, Solicitor or Agent in proceedings before th e Commission unless the Commission certifies that it is or was in the imcrests of just ice tha l Counsel. Solic itor or Agent. as the case may be . should be . or was heard:·. Particular fom1s of cerlilication we re p ro posed and su bmissions made as to the reason fo r each fonn of certi fica tion. They \, ere. it was in the interest of just ice , the applicant was inexperienced and could not have conducted the case him s elf and that ii had been alleged and found by hi s employer thal th e app licant had engaged in conduct tantamount to a cri mi na l offence (sec section 227 Crimi n.i i Code). It was also submitted that eh..: contest between the applirnnt and respondent was a clas~ic fore nsic contest involving complex questions such as wi tn ess credibility and the ir personal observ at ions. Considerations had to be given to expert med ical practitioners as to whether the alleged observations were possible or likely. Further the app licants pre-existing medical conditions had to be considered. The re was also t he onus and standard of proof (The Rrigenshaw submission), Fi nally and with respect to this heading of costs it was in the interest of justice that Solicitor was and Counse! should be hea rd . lt was contended by Counsel for the appl icam that the Commission has a discretion to award costs and that its j urisdictional power to award costs is not derived for t h~ common l aw bu t from statute. s.106 of t he Act. It is further contended that once certifi cates have been gran ted th e discretion to award costs is abso l ute and u nfellcrcd so long as it is exercised j udicially an d reference was made to Donnell Campbell and Co vs Pollock (1927) AC 732 at &I I. Furthennore costs are awarded as an indemnity to the success ful party see R vs lhe Police Magistrate al I lughcnden and Reid l'x- partc John Cunningham (1915) St R Qd 147 at 155 .. costs arc awarded as an indemnity not a punishmcm of the unsuccessful party. Counsel for the applicant has su bm itted that wh ilst he may be of another view the au thori ty to wh ich the Comm is sion must defer is that of th e President in Goldman v Dara General Ausrralia f'ty l.td (1 993)()GJG379 On the Goldman v. Datu General cas.: I was referred to the fo ll owing passages of his Honou rs decision:- ..The longstanding philoso phy of the Industrial Commiss io n that in the absence of a fr ivolous or vexatious applicat io n or other circumstances that arc abnorma l, cos ts will no t be awarded in the tr.iditional kinds of matters within the jurisdiction of the Industrial Commission.··. I li s Honour went on to say: -- .. However there is a discret ion to he exercised and such discre ti on cannot he fettered in su ch a way that. in practical terms. denies its character as a discretion. Where circumstances ch at c an properly be descri bed as abnom1al can be identified in a case and it wou ld cau se serious injustice jf costs were not mvarded it would not do viol.ence to th ese general principles if an award of costs is given. It should however be emphasised Lh at circumstances mu st be significantly o ul of the ordina ry before the general rule is departed from :·. It wa s further submitt ed by Cc> lm sel for the ap p li cant that in Goldman v Data General I l is Honour no ted and it ;;ecmcd with ap proval comment by Bougoure C. at firs t instance:- ··Undcr current law and established practice. an award of costs in reinstatement of proceedings should he reserved for those cases "hid1 demand that such an award be made in the interests of justice and fa irness hetween the parties:·. It is further contended that his Ilonl>ur went on to observe that the mere fact that a party fails to succeed will be fa r from sufficient to found an argument for costs and gave exa mpl es of what ma y amoun t to abnonnal ity. I !is Honour sa~·s: - --None theless it docs make the po int char some rc 1n stacemcnt cases by reason of procedu ra l steps inv(ll ved an d their nature, leng th and complex it y ha ve rather got awa y from the ideal of inexpensive dispute resol ution. There may bt: some cases whe r.: at the end of the day it can be seen that a party has acled unfa irly. unreasonably or improperly in or Ill the course of I 6I65_1.DOC: -- 1 of 3 -- 1246 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [25 August, 1995 pursuing or resistmg such relief and that those actions were so unjustifiable that the proceedings ha\c worked as an act of oppression lo the other side .. It is accepted by Counsel for the applicant that they ha, e to sh<rn that there is some abnormal aspect or circumstance o 1· this c,1sc and in this regard contend as follows. I lad the dismissal of the applicant been found to be hm ful it \\ ould have been impossible for him to nbtain employ mcnt in the future ctnd i11 this regard it is abnormal for J rcin:,tatcrncnt case tt) have such dire cnnscquenccs. f'hc rnaj;Jrit) of reinstatement cast:s do not rcyuire a successful applicant lo change his vocation or occupation. rlic allegations arc such that it is suggested the applicant engaged m heinous conduct and di, erse dcviou, ,cxual impropriety arc abnomial and therefore it \\as prudent and proper that tht: applicant clear his name particularly given the occupation in "h1ch he was engaged. It 1s also abnormal to ha, c 10 consider his e,isting medical conditions and the app!icam was put to considerable expense in this regard. lt is also contended that the litigious approach of the respondent as outlined 111 Mr Paync·s (Solicitor for the applicant) affidavit is demonstrative of a desire to manipulate the rnies as lo the right of appearance so as to gain the advantage of more experienced Counsel. Further ahnomrnlitics go to the length "1th \\hich the respondent resisted the relief sought as the applicant \,as put io strict proof on all issues including his prc-e,isting medical conditions. Funhcrmure it was prudent on the p.irt of the applicant to engage representation and he should be indcmnilicd for the costs gi,cn the abnormality of the case. Submis,ions were made as t,J the principles of wsb. (refer Oliver on Cos/sand Athaton 711h/e/ami .\fai~e Board v Celemenls). h1rthermorc s. l 06 docs not restrict the Commission to paying on!) fees paid by the Solicitor to the Agent. The section ( l 06) pnn ides snnpl\ that no costs should be allcmeJ for any CounscL Solicitor or :\gem.. unless the Comm1,,io11 ccrt1!icd that ii \\as Ill the interest of justice that Counsel. '-;olicitm or Agt:nt as the case maybe. 'ihould be or was heard. Counsel for the applicant submits that this is not a case for a n:dcndo interpretation and thal it \\01tld be tf the section read:- ";\io costs shall be a!IO\,ed for any CounscL Snlicitor or Agent .. unless the Commission ccrtif,.::s that it ,,as 111 the 111tcrcst of justice tbat THAI Counsel. Solicitor or Agent,, as heard.-- Counsel for the applicants 1ntaprclalion of s I 06 ,b pn:, iDuSI) rclcrred \\as supp11ricd b) this folio,\ rng example. If the Counsel ,,as heard and 1f the Comrrns,:ion ccrtiiicd that it ,,as in the interests of Justice that Counsel ,,a, heard then if the Commission m,ardcd costs to the ,ucccssful applicant then the successful applicant must surely gel the costs of the Solicitor (,,ho \\clS!I ·1 heard) for preparing the matter and instructing Counsel. It ,, ould be ludicwus tu suggest othen, isc. The ccrtiticatcs proposed b) Counsel for the applicant include a ccrtilicatc that it was in the interest of justice that Agent for the applicant he heard and m this regard m:,- attention was drawn to the propo<-;it10!1 that .i\gcnt \\as engaged h: the Solicitor \\ho~c responsibility 1t \\as to instruct the Agent with the assistance of the arhice 's of Counsel. It is the ar,plicants responsihility to remunerate and imkmnt fy the \o!icitor for the costs of the proceedings which tl1e Solicitor mcurrcd on the applicants behalf rlic submissions of the respondent are similar lo that of the applicant \\ 1th rc,pcct to d1scrclJOn the Industrial ( om1Tms1on has and agan1 I arn referred to (;o/dman v Data Gf!rreral. Furthcrn1orT as the !ndil\lriai Reio/Ions :lei IYYO spec11ies no cntcna. regard must be had to the nature and apparent purpose of the power and the legislative scheme of which it is a part and in this regard no one should be deterred from continuing the principle of access to inexpensive and expeditious forms of resolution and if the resolution of disputes attracted a punishing cost to one party the purpose of the Act \\Ould be defeated. There is also the long standing philosophy of the Commission that in the ordinary course there is no entitlement to c~i:-.h. It is submitted by Counsel for the respondent that some abnonnal or exceptional circumstances be made out (refer Goldman v !)a/a General) that compel a departure from the general rule. lt is contended that the applicants submissions arc that such c1rcurmtanccs exist because. the applicant was defending his livelihood, the aliegations made against him were heinous, the cYidencc was detailed and extensive, difficult legal issues were raised, the applicant succeeded in his application. the respondent adopted a litigious approach. and that each of these matters is irrclc, ant or not true. The respondent contends that all reinstatement cases involve the defence of ones livelihood lo a greater or lesser degree and if this factor were n0\\ introduced as a reason for an award of costs then the general rule would be reversed in favour of the prescription that costs \\ill be awarded. lt was forther contended that whether the applicam would ever work again in his calling involves the Cmnmission in hypotheticaL ex-post facto speculation as a foundati0n for determining a costs order. The respondent ackno,, ledges that the al legations made agamst the applicant were serious and if sustained dismissal was warranted. rhesc allegations were not made by the respondent but made by sincere and reliable employees and the respondent had a moral and legal duty to im e;;tigatc and act according to its findings. Having concluded that the allcgatiom were not answered the respondent acted reasonably. The fact that the Commission found othcmise on the basis of the C\ idcnce and materials provided which were not disclosed to the respondent at the time of dismissal docs not affect the scrinus and difficult position the applicants behaviour placed the respondent in. Allegations of misconduct are usually serious and the fact that they are subseyuently explained to the satisfaction of the Commission is not exceptional. It ,\as submitted that almost all of the applicants evidence was medical and not disclosed until shortly before or during the hearing despite the formal show cause process offered by the respondent Cnunse! for the respondent acknowledges that the raising of difficult legal or factual issues is a sound basis for argument in f,n our of competent representation, however, it is not a basis for the pa,mcnt of costs in this jurisdiction. With respect to the argument that a litigious approach was taken by the respondent, firstly this suggestion is denied then it was argued that the events referred to in the applicants submissions were set in train b) the applicants advocate objecting to the respondent being represented by Counsel and it is hypocritical for the applicant to no\\ rnmplain about the respondent taking the same course. Then there is the applicants litigious approach by producing vast amounts of medical evidence at the hearing for the fir,t time when that material "as not produced at the time of the show cause. This caused the n:spondent to incur excessive legal and other costs in the conduct of its defence. it was submitted yui.te forcibl} that costs for Counsel can not be ordered as Counsel and Solicitor were not heard. 16165 I.DOC 25 August, l 995j QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1247 The claim that costs be awarded "n the Supreme Court scale should be rejected as in many tcnns the matter lay "ithin the jurisdiction of the Magistrates Court. Bcfon; dealing with the matter at hand I feel compdled to comment on the issue of legal representation in this matter and the effect that objection to legal representation had in this matter and the effec1 it may have m future matters. It is my understanding that in the conference held in the Commission on 10 November 1993 the applicant was represented b) Mr Shepley the then assistant secretary of the Queensland Association of Teachers m Independent (Non-(iovernmental) Schools. Union of Employees. At some stage in the course of that conference the suggestion \,as made b) Mr Shepley that should this matter proceed to a fonnal hearing then there ,,ould be objection to legal representation. l km ever between that conference and the matter coming to a forn1al hearing the applicant sought legal ad, 1cc and ultimately legal representation. The respondent on the other hand approached this matter with a view that the objection to legal representation remained, although I do note that the respondent retained the assistance of Solicitors throughout the proceedings and had the assistance of Counsel umil a couple of days before the matter proceeded to hearing The actions of the applicant in the days Just proceeding the hearing and the actions of Solicitors acting for the applicant should have been sufiicicnt to convey to the respondent the mknt and desire b) the applicant to be legally represented. Then before the hcanng commenced the question of representation \\as fonnally raised b: the applicant's Solicitor to the respondents Solicitor However when the matter commenced on 7 February 1994 there seems to be some acceptance by the parties that an objection to legal representation c,isted and the matter proceedt:d ,, ith the applicant being fonnally represented by his Agent. Mr I .awson who \\as during the whole of the proceedings assisted by Counsel and Solicitor (Mr Amerena and Mr Payne rc,pecti,el~ ). On the other hand the respondent was represented b:,- Mr Ciarsh.e from the Queensland Confederation of lndustr) Limited. l:nion ,,f l'.mployers, who \\as assisted b) Solicitor :V1r Bechan and l hcli1e,c contact "ith Counsel was readily a\ailablc. I accept the views expressed that at the conference on l 0 November 1993 Mr '-;hcpley mdicated an intention tl> object lo legal representation. llowcvcr. when the matter came before me there was no formal objection and I was rwt required to rule on the matter These circumstances ha, c punled me for quite some time as it would he an illogical instruction on the: part of Mr Culhane to his Solicitor, Mr Payne, to object to legal reprcsemation alter hm ing obtained that level of representation in his own interests. l am also of the view that there ,,as a genuine attempt b) Mr Pay nc to address this matter prior to the hearing commencing and accept the contents of his affidavit given that it was not challenged I can therefore and only b) logical deduction assume that when the matter came before me the objection to legal representation was the objection of the respondent. I share the views expressed by Presidents of this Tribunal. the views of other Commissioners and the views expressed on numerous occasions by many of the practitioners in this jurisdiction that therc is merit (my words) in preserving the principle that the Industrial Commission should provide an inexpensive system of dispute resolution. Cnder these circumstances the question of costs should be approached with care and caution In this regard it is m 111\ opmion wise to follow the principles enunciated by the President in Goldman v. /)ma General. If this ,.,as not done and the principles that ha,c been s:stabiished over the years rcvcr,ed and the awarding of costs becornrng a matter that follows the event then there may be many employees who have Justification in seeking the intervention of the Commission in matters pursuant to the unfair dismissal provisions of the Act being deterred from doing so simply because costs ma) be awarded against them. !laving made that comment and considering the circumstances in which the primary case was presented. given that there was obJcctiun to icgal representation all that happened was that that objection irrespective of where it came from served to add to the cost of conducting this matter as both parties for whatt:ver reason chose to be assisted or have Solicitor andinr Counsel present dunng 1h,; course of the hearing. The ob_jection to legal representation thrn reyuired the additional assistance of Agents and the costs of those Agents. If the Commission had a discretion in circumstance, such as this 1·m sure the costs of processing these mailers c,iu1d be reduced and neither part; \\Ould have gamed an ad\ ,mtagc or been disadvantaged. I strong!) urge patiics faced with similar problems to give serious consideration to taking this course and ohjccting to legal representation as rarelv is an advan:agc gained and when such a course is pursued the proceedings are normall:, extended. t haH: consider..:d the submissions ufthe parties and find merit in both contentions however I ma~e the following comments v, hich are influenced lirstl1 b 1 the comment nf the President in ( ioldman 's cas~: - "where circumstance, that can proper!_, be described a:-- abnormal can be idcmificd and it would cause st:rious injustice if costs ,, ere not awarded it would do no \ iolcncc to these general principles if an award of costs is given"_ Secondly I am influenced b) a comment of Bougourc C. who at first instance in Cioldman·s case says - "l'nder current law and established practice an award of costs in rernstatcmcnt proceedmgs should be reserved for those cases which demand that such an award h,' made in the interest of justicc and fairness between the parties· In this matter at firsi instance the Applicant had to approach the proceedings on the basis that he had to prO\ c his innocence against an allegation of indulging in a dcvwus sexual actl\ it) and one that would be offensive to the fi,e (5) women who were present. In this regard I have considered s. 227 of the Criminal Code which is as follows: - "227,(1) Any person who (a) wilfully and without l,mful excuse docs an: indecent act in an) place to which the public arc pennitted to have access. whether on payment of a charge for admission or not: or (bJ ,,ilfully docs an) indecent act in any place with intent to insult or offend any person: is guilty of a misdcmeanour. and is liable to imprisonment for 2 years. (2) The offender may be arrested \\ithout \\arrant.'' I lad the allegations agamst the Applicant been sustained there may well have been an obligation on Nudgcc College to report the matter to other authorities for investigation or given that this matter attracted publicity the appropriate authorities may have acted on there O\\ n. 16165 1 DOC -- 2 of 3 -- 1248 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE [25 Au gust, 1995 In this reg ard the Applican t was placed in a posi ti on of having to go to significan t lengths io prove hi s case and in my opinion wen t to a length ahovc and beyond that which wou ld be regarded as nonna l. I am also persuaded by t he argument of Co unsel for the App licant that th e evidence adduced in those proceedings was complex, pa rt icularly th e eviden ce of the medical experts. On the question of thi s evidence and the t1~e of med ic al ex perts Counsel fo r the Respon de nt suggests th at this information was unk now-1 1 umil th e hea ri ng or shortl v before. howeve r, Counsel fo r the Respondent is instruc~cd that th ~re was refere nce to medical problems and that an offer was made to provide fu rt her deta il s fo r the Responden t' s consideration. This offer was no t taken up. In the matter before me at fi rst instan ce I am sa ti sfied that the Applic an t took sufficient precautio ns to defend h im self and that the medical evidence p ro vid ed assisted me in coming to the conclusions ! did although I d id nm rely on a ll of th at ev id ence to come 10 my conclusion at first instance. T hi s was a case th at wa s len g th y, partly hecause o f t he medica l c, idencc addu cc;d and in this regard il is underst an dable that the ex trac ti on of such evidence in chief and cross examination took t im e. These proceedings we re Ieng.th y. however. because of their impo rtance the princ iple of incxpcn~ive dispute resoiution took second place. In ge nera l the Respondent resisted the conte r11i ons (lf the App lican t \\' ith respect to hi s med ical condi ti ons and the s ym ptom · they mani fe sted. under these circumstance~ the hearing was extended to a level that was beyond that which one wo ul d expect to encnuntcr in ,1 nom 1a l reinstatement case. With respect to the conten ti on th at a litigious approach "·us ado pted by the Rc spon dc: nt I note th at the Respondent ri g ht from the start or this ma tter sought le gal advice at each step before concluding 1h a1 the Ap pl icant's employment should he tenninatcd. This procedure I would rega rd as wise and pro bably cautious hut not un necessarily litigio us . \\'h en th e maHcr came on fo r hear ing every i~s u<: was purs ued ,·1go rousl) and th at is th e Respondent\ ri ght i f it h as an honest belief. From my p<> int of ,·icw I wou ld not describe t he Rcspomk 11t·s r,o si tion as li 1ig io us in the sense that it wa;, litigious for th e.: purpos<.: of rx hausti ng the t\ppiicm1t ·s resources. I a<.;ccpt t he su hrn is si ons h) Counsel for the rcspondcm that no , ,m: shoulu be t.kterrcd rro 111 contin ui ng the pri ncip k of acc..:ss tu ine,pcnsiv c; dispute re solution und th e sub mi ssions by Counsel fo r the /\ pplirnn1 that we mu st guard agai nst the que stion ,,f resolution allracting a pun ish ing co:-a factor. I arn also persuaded by the su hmi ssion from Counsel tor the app licant that an approach to the question of costs mu ,t b<: m ad e o n the ba sis that costs are awarded as an indem ni ty and not a punis hm ent of th~ uns u<xcss fu l party and will approad-1 lll) ulti mate co11c lus ions 011 that basis. On the question o f' whether this ma tt er falls within the cat~gory of ahnomrn l or un usua l. I accept the vi ews of the rcspond..: nt in so fa r a;; the r.:on tent io n that it is not un us ual in a matter of this nature for an appl icant Ill defend ,))les livelihood an d the fa,1 that the ap plicant \\'as success ful. These reasons arc not sufficient to \\'arrant a dcpariu rc fmrn the.: p ri nciples previously referred lo. I ltl\\cn:r the , cry nature of' the allegations. the procedural steps taken b y the cm pl oy..: r tha( rcqu i rcd th e cmploy.: r to s..:.: k kg al ad vic..: hc/'orc ,1Cti11g and the fact th at the Applicant ultimately sough t legal ad , ice 10 defe nd hi mself' is understandable in the cir c:urn,;tan c..: s. then there is th e lcng.lh and complexity o f th e rn auers I -., ·as required 1.0 consider a ll of these ci rc umslancc, have put t hi s ma11cr in a categor: where the emplo; crs actions arc such that they put the applit.:an t to an extremely high l,:\' el or proo f and th e ve ry nature of the ap plicat io n was one where the appl icant had to prove !us innocence. This was not ju st an innocence that there had not been miscl1 nduct a~ t he allegations made ag ain st the applicant were l>f thei r ,·cry naturc ;se rious miscond uc t and I ~cccpl th e s ub missions of Counsel for the applican t that the a ll egations were so ser ious that they cou ld have resulted in a breach of t he Criminal Code where th e app lic ant cou ld ha ve faced a stiff penalty and probably gaol. In th is matter I am of a view that a serious injustice wou ld transpire if I we re. no t to award some costs. In Sw nley v tfectrical Trades Union QGIG 1957 Vol 42 pa ge 509. in the final paragra ph the following is found:- 'The app li cant has had to pay th e fee charged by his Agent and he h as been pu t in that posi ti on by t he i ll egal conduct of the union. He had the altemative of taking th ese proceedings or pu lli ng up with th e u ni ons illegal actions and attempts to secu re payment of a fine i ll egally inflicted. He chose to institute legal proceedings and he should be indemnified for the costs incu rred.". The applicant 111 t hi s matter could have accep ted the decision of hi s employer and t he smear it would have left on his character. Rather he chose to pursue the matter and prove his innocence. He s ho ul d at the very lca ~t be assisted and awarded costs to assist in defra ying his legai outlays. I am also of the opinion th at an award of expenses should be made to defray outlays that re late to the med ical experts who were ca ll ed to gi ve evidence. In this re ga rd I have cons id ered the med icos charges and some of the Solicitors costs in arran gi ng the ir presence at th e hearing in Fe bruary 1994. I have. al so considered th e; matters ra is ed by Co un sel for the respondent re the certi fi cates sought and note that at fi rst instance in Goldman v Dara General that Bougourc C. appears to ha ve followed a course and certifi ed that it was in the interests of j ustice that both parties be legally rep re sented before determining costs. On th e material before me in this ma tt er at first instance I am satis fi ed th at because of t he complex ity of the case and the procedural difficul ti es encountered together with presentation of expert medical ev id ence I am of the opinion th at it was in the interest of faimcss and jus ti ce th at Counsel's ass is tanc,.~ and advice lo the Agen t was necessar y. The app lication also required th e expertise of So li citor wi th an ability 10 harness the med ical evidence that was of benefit to hi m in thi s case. Furthcnnorc there arc the general matters one has to un der stand such as the prov isions of the Act an d case hi sto ry in approaching a matter such as this and there is not hi ng to suggest that the ap plica nt is convcrsa nt w it h th ese requiremen ts (sec Stanle)' v !::TU ( 1957) 42 QGIG 507). As consequences u lt imately unfolded then there became the need fo r an Agen t to be engaged in t he envi ronmen t of o bj ection to legal represen t at ion. It was not the applicant hi mst: lf who engaged th e assistance of Agent. but rather Solicitor recognising that objection wo ul d req ui re the engagemen t of an Agent. then an Agent has to be in vo lved fo r th e purpose of presenting subm is sions considered necessary. The Agent was 110 1 a req ui rement of the ap p li can t b ut rather a requirement as a resu lt of the objection to le gal represen tation. I-l ad the;: app lican t been given the choice (in the knowledge that his costs would be greater) of em pl oying Solici wr and Counsel as agai nst Solicitor. Counsel and Agent. I am of a view that human nature and ge ne ra l financial prudence would dictate th at to pay fo r th e services of two com pe ten t representati ve s wou ld be financially wiser than having to p ay fo r tJ1e services of th ree. Un de r a ll of these ci rcumstances and particularly given that on the halance of probab il ities the applicant would not have taken any course th at wou ld purpose ly add to costs, I am prepared to certi fy as requested by Counsel fo r th e applicant as th e preparation by Solicitor was necessary, th e engagement of Agent became a necessity and the adv ice of Counsel was a re.asonable precaution given th at the respondent had sought leg al advice hcfore decid in g to te nn inate the 16 165_ 1. DOC 25 Au g us t, 1995 J QUEENSL AND GOVERNMENT IN DUST RIAL GA ZETTE 1249 applican t's employment. In these circumstanc es it is easy to understand the app li cant's desi re to be adequately represented given that the employer had the assistance of legal representation from the t im e the allegations against the applicant were ori gi nally made. In the course of submissions my attention was dravm to the sec tion of the Act re lating to costs as it stood prior to 1990. Mr Ame rena contends that t he section as it stood before the 1990 amendments included t he words "shou ld have been", but in t he 1990 amendments they ha ve been replaced by the word "was''. I sup por1 his contention and the tem1inology he proposes fo r th e various fonns of certification sought. Therefore wi th respect to the hearin g that took place in February 1994 (ma tt er at fi rst inst ance):- "I certify th at it was in the interests of j ustice that the Agent of the ap pli cant was heard." . With respect to the heari ng of 16 December 1994:- •· 1 certi fy that it was in the interests of j ustice that So li citor for the app licant was heard.'·. With respect to this costs applicat ion of 6 March 1995:- •· 1 ce rt ify that it was in the interests of j ust ice th at Counsel for the applicant should be heard.". The nature of this applicat ion was such that the applicant had to pro ve his innocence. A tt ached to the app li cation is a memorandum of cos ts wh ich contains dates, descrip ti ons. item number and whether the ite m claimed is an outlay or costs, the total sough t by th e applicant is $31,868.45. I am mind ful of the provisions o f s. 90(c) of the Act wh ich fo r relevant purposes is as fo llows: - s. 90( I) Subject 10 this Act in any industrial cause, thi: Industrial Court or Industrial Commission - (c) may order any party to th e cause to pa y to any o ther party the re to s uch expenses (i ncl uding expenses of witnesse s} as it considers just and specifies in its orde r. In thi s matter I ha ve considered th e costs submit1ed by the applicant ' s Solic itor. in this lists of costs there is work in arranging medical speci al ists together wi th the actual charge or fee of the medical experts. I have incl uded th e work in arrang in g an d the charge as an expe ns e which in t he se ci rcumstances was q ui te reasonable. Accordingly and pursuant to the provisions of s. 90( I )( c) I order that the res pondent to pay the app li cant expenses to t he value o r $5518. I have come to t hi s fi gure ha ving gone through the lists th e costs supplied and have tota lled all th e e xp enses associated with medical evidenc.: e.g. doctors fees. So li citors clerks time, phone ca ll s et c. in arrangi ng the medical experts who gave evidence. On the gene ral question of costs I ha ve taken in to consideration t he fact that the Commission decision at fi rst instance awarded 10 Mr Culhane rei nstatemen t which in overa ll v al ue is worth a signi fi cant sum of money over a period of ye.ars therefore the result puts th is matter in a category si milar that to that of a Civil case in the District Cou rt where an award of damages exceeds $50,000 and my research suggests that the scale of costs normally used does not have a recommended fee for Counse l. I have considered the foe s charged by Counsel and Age nt for the app li cant and o th er outlays and costs incurred and reasonably charged by tJ1e Solicito r. In all of th e circumstances I would be lieve that it would be fair and in t he interests of j us tice to award costs to the va lue of $20,500. Accord in gl y I order that expenses to the va lue of $5518 and costs to th e value of $20.500 be awarded. Order accordingly. H. DEMPSEY, Commissio ner. Appearances:- Mr M. Amerena, instructed by Nall Payne Craswc ll for the applican t. !\fr A. Herbert instructed by Thynne & Macanney fo r t he respondent. Operative Date: NIA Decision - Re instatement Costs Re leased: IOAugust 1995 ####################################################### I 6165_ l. DOC -- 3 of 3 --