Bakon v Quirk Bros. Pty Ltd [2004] QIRC 10 (2004) 175 QGIG 336

336 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 January, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Robert Graham Bakon AND Quirk Bros. Pty Ltd (No. B2318 of 2001) COMMISSIONER BROWN 14 January 2004 DECISION This decision is to be read in conjunction with the two earlier decisions in this matter dated 15 April and 26 June 2003. Having successfully opposed an application for reinstatement, the respondent now seeks an order from the Commission pursuant to s. 335(1)(b) of the Industrial Relations Act 1999 regarding costs. Section 335 states: “335 Costs (1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied– (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement – the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application. (2) In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party.”. The applicant was tardy in his pursuit of the matter. Having commenced it in December 2001 and ultimately taking the matter to call-over in February 2003. During that time the respondent was involved in 2 conciliation conferences, the first aborted in the absence of the applicant and the second, failing to resolve the differences. -- 1 of 2 -- 30 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 337 The contention of the respondent that the applicant unreasonably extended the hearing is not accepted It was true that the applicant was less than timely in his efforts to have the matter heard, however once involved in the hearing, the applicant did nothing that the Commission would see as an unreasonable act or omission in connection with the conduct of the hearing. Similarly, in the period between the termination and the hearing, the costs incurred by the respondent would not have been noticeably different to the cost that would have been incurred had the matter been heard promptly. The defence would still have been prepared and conferences participated in. No evidence was presented to suggest that the delay in having the matter heard in any way prevented the respondent from conducting normal business or caused hindrance. The hearing of the matter set down for 1 day was extended to two days when, during the taking of the applicant’s evidence, the respondent sought to have the matter struck out, requiring the Commission to adjourn to determine the issue. This, whilst a legitimate action on the part of the respondent, was not the doing of the applicant. The finding in the decision of 26 June 2003 that the respondent would be prejudiced because of the time taken to bring the matter to a conclusion was based on the changed economic/financial circumstances of the respondent and the impact that an order for payment may have at the time of its issuing compared to what it may have been had the matter been concluded soon after the termination. Having considered the submissions the Commission does not believe that the time taken by the applicant to conclude the matter caused costs to be unreasonably incurred by the respondent. Therefore, the Commission finds pursuant to s. 335(1)(b) that the applicant did not cause costs to be incurred by the respondent by an unreasonable act or omission. Regarding the submissions for the respondent that it was an unreasonable act on the part of the applicant to proceed with the matter on the basis that the case lacked merit. This, in the view of the Commission, brings the provisions of s. 335(1)(a) into consideration in that it suggests that the application was made without reasonable cause. The respondent submitted correctly that the applicant was advised by the Commission that if the respondent was able to demonstrate that the applicant had resigned, then the applicant stood little or no prospect of success. The respondent acknowledged in written submissions that the Commission “exercised its discretion to make a finding on the merits of the substantive application” in determining not to grant an extension of time sought by the applicant. That observation was correct. However the conclusion was reached on the balance of probabilities. No conclusion was reached that suggested that the applicant deliberately misled the Commission. The passage of considerable time and the absence of any skilled representation were factors considered by the Commission in so concluding. The applicant was tardy, represented himself poorly and on top of that failed completely to provide his written submissions to the Commission on the matter of costs after agreeing to do so and despite several attempts by the Commission to contact him. None of this constitutes, in the view of the Commission, grounds for finding that the application was lodged vexatiously or without reasonable cause pursuant to s. 335(1)(a). The application for costs is refused. D. K. BROWN, Commissioner. Appearances: Hearing Details 2003 22 September Mr R. Bakon on his own behalf. Ms S. Lindsay for the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers on behalf of Quirk. Bros Pty Ltd. Released: 14 January 2004 -- 2 of 2 --