Brisbane North Regional Health Authority v Trustees of the Christian Brothers (Queensland) [1994] QIRC 78 (1994) 145 QGIG 668

668 QU EENS LAND GOVERNMENT INDUSTRIA L GAZETTE [25 March, 1994 #################################################### QUEE NSLAND INDUSTRIAL RELATIONS COMMISSION /ndus1rial Relations Act 1990 s. 84 and s. 68 (1)(c) - application for costs Bri sba ne No rth Regio n al 1-i ealth Authority AND Trustees oi t he Christian Bro th ers (Queensland) (Case No B1 78 of 1993) CO lvlMI SS IONER BLOOMF I ELD 11 Ma rch 1994 Summons to produ ce documents - Claim for costs - Arbitrated Matter - Applica ti on ior costs above tha t already pa id as wi tn es s expen ses refused . DECIS ION ·1his decision relates to an appli cat i on made in tran sc ript and subsequently comm i tte d to wr i ting by Clayton Utz So licitors ior the Bris ba ne North Reg ional He alth r\ uthority (a ppl ic an t) fo r co sts in rel at ion to a summons to appear before the Commi ss ion wi th cer ta in medi ca l, nursing and ot he r records. Th e appli ca nt claims an amount of $350.00 in respect of its cost of searc hing for t he required documents, conferring wit h i ts so li ci1or an d bei ng represented before t he Commi ss io n. Th e application is opposed by solici tors for the re spondent. The case on behalf of the applicant was brief and referred to the i act that it had searched its records and was un ab le to find any records in rel ati on 10 t he responden t; th at 1t h ad i nc urred costs in rela ti on to th is exerci se; an d tha t add itio na l costs were incurred in consultation with its so li citors and arran gi ng for their appearance beiore the Commi ss ion . 25 March, I994J QUEENS LAND GOVERNMENT INDUSTRIAL GAZETTE The respondent's solicirors provided rhe Commission with dera il ed written r esponses to t he cla im by t he applicant. Wit hout being exhaustive these submi ss ions referred to the Commission's general powers to award costs under what were then sections 8.18 (now s. 84) and section 8.2(1)(c) (now s. 68(1 )(c)). Fu rther, th e respondent referred the Commi ss i on to th e fact that the summons w as iss ued under ru les 35. 13 and 35.14 of the Rul es of Court, and that rule 3 5. 16 was very specific in relation to 1he quantum to be p ai d to witnesses sum monsed to appear before the Commi ss ion. The res pondent right ly points ou1 thar t he appli ca nt was not rep re sen ted by a so licitor but rather by an articled clerk, that th e appearance was brief and w as to inform t he Commission th at no documents had been found. T he pe rso n named on the sum mons had not appeared but had i ns tead chosen to be represented by a firm of solicito rs . The res pondent argued t ha t p ursua nt to s. 8. 18 (now s. 84) costs cou ld only be awarded for a solicitor wh ere th e Commission certifi ed that it was in the interests of justice that the solicitor was heard. It was contended th at there was no su ch requirement here and indeed th e re was no suggestion by the applicant th at it was necessary for it to be repre sented by a so li citor. Additionally the respondent argued that under s. 8.2(1)(c) (now s. 68(1 )(c)) the abi lity to award exp enses (including expen ses of w it nesses) was res tricted to pa rt ies to the proceedi ng s. The. respondent cont inu ed by arguing that whi l st th e Com m1 ss 1on was given powers under s. 8.2(2)(a) in respect of in terlocutory proc eedin gs su ch proceedi ngs are, by their very def1n11 1on, proceedings inter partes so , ag ain, were restr icte d to the parti es to the proceedings. Under the Rul es of Court - pan ic ularly ru les 35.13, 35. 14, 35 . 15 and 35.16 - summons ma y be i ss ued to any party or parti es , or "o ther person or persons" to appear and give evidence as we ll as to "produce before the co'urt, Commi ss ion, or Reg i st rar, any book s, pape rs, an d other reco rd s in their position or under their control in any way relating to the cause.". Under rule 35.16 any "person or person s" so sum moned are entitled to wit n es s expen ses "acco rd ing to the sca le for the time being in fo rce with respect to witnesses in civil actions in the Supreme Court". Such amoun t having been paid to the applicant upon service of the sum mons the appli ca tion for costs above and beyond that quantum is refused. O rder accordin gly. A. L. BL OOM FIE LD, Commissioner O perative Date: NIA Decision - Costs Re leased : 1 I March 1994 #################### ########### ##################### 669 -- 1 of 1 --