Codianni v Water Resources Commission, Department of Primary Industries [1994] QIRC 647 (1995) 148 QGIG 145

144 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I 3 January, 1995 13 January, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 145 #####################################################11# QUEENSLAND INDUSTRIAL RELAT IONS COMMISSION lndus1rial Relacions A c1 1990 s. 295(2) - exten si on of t im e Joseph Codianni AND Water R es ources Commi ssion, Departmen t of Primary I ndustries {No B273 of 1994) PUBLIC SE RVI CE AWARD - STAT E COMMISSIONE R NUTT ER 9 December 1994 1364 6_1.DOC -- 1 of 2 -- 146 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 13 January, 1995 Te1mi nation o f Em ployment - Dismissal - Re instatem en t -· Extension of Time Granted - Applicant Seeking Cos ts - Precede nt - Arbitrated Matter - App li cation fo r Costs Refused . REPO RT ON D EC ISION Jn giv ing its d ec ision from the Bench on 9 December 19 94. the Co mm iss ion sa id :-- 'There is no doubt that the Co mmission has jurisd ict ion and the di scretion to awa rd costs unde r s. 106 of the Act. The question in relation to lega l represe ntat io n - the Act presc ri bes that parties to pro,;eedings cannot be represented by co unse l or a so lic itor except under particular situations. One of those si tuations . in proceedings before the Ind us tr ial Commi ss ion, is wi th consent of all pa rti es to the proceedings. It is t he right of ei ther party to decide whether or not they will agree to legal represen tation. The Act envisages that except in particular s itu ations, that legal re presentati on is not the norm in matters be fore the Com mi ssi on. The Department certainly had the ri ght eith er to agree or d isag ree to a request for lega l represe ntation as wou ld ha ve the applican t, had the reve rse s ituat ion app lied . The Co mmission has a longstand ing ph ilosophy. as was quoted in the appea l de c ision by J us tice Mackenzie in Goldman. that in the absence o f fri volous or vexatious app li cat ions or ot her abnorma l circum st ance cos ts will not be awarded in the trad it ional kinds of matters with in the j u ri sd iction of the Industria l Comm ission. That has been the pol ic y o f the Co mmi ssion and there has been a line of decis ions by d ifferent Co mmissioners to wh ich Mr Kennedy has referred which indicate it has been a cons is ten t view in th e Comm ission and en dorsed by the Industrial Court over a lo ng period of time. It is generally onl y in matters which are cons idered to be vexatious or fri vo lous or extremely abnonna l that cos ts will he a\\arded. In this pa1tic.u la r case before me. the responsi bili ty for lodging within the prescri bed time clearly rested with the ap p li can t. It is because the applicant did no t lodge within the 2 1 days Lhat he needed to seek. a n extension o f time and this necessi tated the ..extens io n of ti me ·• he aring . The fact th at the app li cant did not lodge within the prescribed ti me was no fa ult of the responde nt. The requirement is c learly laid down in the Ac t: the applicant shou ld have kn own or the req ui reme nt or made hi mself aware of that requirement. Wh at the .Act doe s is a ll ow the Comm ission in pa rti1: ul ar ci rcumstances lo extend th e ti me. a nd in th is particular case I d id extend the li me. havi ng the view that a right inte nd ed hy the Act should not be taken away for techn ical reasons because an app lication may not have been lodged wi th in a particul ar ti me. I don' t bel ieve that thi s Co mmiss ion s houl d light ly take away rights env isaged by the Ac t. Th e r.: as ons ad vanced for the extens io n of time, which was granted . are in clud ed in the d ec ision itsel f those included wh et her the so lic itor for the app lican t w as aware of the Act limitati on, th at the advice for dismissal was given ov er the C hr istm a~ period and th at during th is per iod the so li cit0r for the ap plican t ha s his 0fficc cl nscd . We ll. the person to \Vh om the app licant " ishes to refe r seeki ng lega l advice or ot her advice or indus trial advice or w hatever is the applicant'~ res pons ihi lity. If he had so me wnccms he cou ld have gone to annther sol icitor. r rn not sayi ng tha t· s sufficient to refuse an ext ens ion of time . What I'm sayi ng is t ha t hav in g done that. the n he placed hi mself in the posi tion o f having to come to t hi s Com mission see king an ex ten sion of time. I' m un ab le to d etenn ine that the respondent should be penal ised for costs arising from the extension of time application . He has a right lo oppose the extension of time. It was not by his actions th at an app lication for an extens ion of time came before the Com miss ion. The extension o f time came before the Commiss ion because the applicant. in the first instance. d id not lodge the application withi n the prescribed pc ri()d . Had he done so . an extens ion of ti me wou ldn ' t have been necessary and the appl ica tion wou ld have be~n lodged. It could have been proceeded in the norma l manner and costs associated with the app licat io n, apart fr om t he extension of ti me . would be a matter for de tem1ination by the Comm issioner heari ng the case in fina lity as to whether the application sho uld succeed o r be dism issed. In the circumstances of this case I' m not d isposed to make an orde r for costs having regard to the ma tt ers that I have jus t indicated and the app li cations for costs in rel at io n to the ex tension of time applications is the rdo rc dismissed. Orde r accordingly .... Dated this ninth day of Dece mbe r. 1994. By the Comm ission, ILSl R.H. BLUMSOM. Ass istant Industri al Registrar. Appearances: - Mr T.A.\\' . Baumgartner for the applican t. Mr T . Ke nnedy for 01c Departm ent of Pr imary Indu stries Operat ive Date : NIA Dec ision - Cos ts Released: 20 Dec embe r 1994 ####################################################### 13 646_L DOC I 3 January, I 995 J QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E 147 -- 2 of 2 --