Bow Park Pty Ltd v Williams (No. 2) [2003] ICQ 62 (2004) 175 QGIG 18

18 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 January, 2004 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 335 – application for costs Bow Park Pty Ltd AND David Gordon Williams (No. 2) (No. C61 of 2003) PRESIDENT HALL 11 December 2003 DECISION This is an application for costs. It arises out of an unsuccessful appeal by Bow Park Pty Ltd against a decision of an Industrial Magistrate convicting the corporation of an offence against s. 24(1) of the Workplace Health and Safety Act 1995. The decision of this Court rejecting the appeal is now reported at 174 QGIG 531. For reasons advanced in Golden Video Pty Ltd v. Chief Executive, Department of Employment, Training and Industrial Relations (2000) 164 QGIG 298 and Marfleet v. Brisbane City Council (2000) 164 QGIG 362, I am satisfied that where “triggered” the power to award costs at s. 335 of the Industrial Relations Act 1999 extends to an appeal under the Workplace Health and Safety Act 1995. However, the power only arises where the appeal was made “vexatiously or without reasonable cause”. This is not a case in which it is necessary to explore the content of those expressions or the issue whether the words are to be treated severally or as a composite expression. There was no vexation on the appeal. Indeed, the respondent (applicant for costs) does not suggest that there was. The case made was that the appeal was brought “without reasonable cause” because it had no objective prospect of success. With respect, there is too much of the clarity of vision which flows from the advantage of hindsight in that submission. Whilst the appeal was entirely unsuccessful and the appellant’s arguments were wholly demolished, the demolition required significant argument by the respondent and mature consideration by the Court. The appellant’s case was not one immediately recognisable as doomed to failure. That is sufficient to determine the application for costs. Doubtless a future case may arise in which it will be necessary to take argument upon whether, given the very severe penalties now -- 1 of 2 -- 9 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 provided for by the Workplace Health and Safety Act 1995 in the case of conviction of an offence with a circumstance of aggravation, the exercise of the discretion at s. 335 (once “triggered”) should be exercised by way of analogy with the proposition that in criminal proceedings brought by the Crown, costs are not awarded in favour of or against the Crown, see Goia (1988) 19 FCR 212 at 213 per Forster and Pincus JJ and the cases there cited. I dismiss the application for costs. Dated 11 December 2003. D.R. HALL, President. Released: 11 December 2003 Appearances: Ms J. Cameron, directly instructed by Workplace Health and Safety Legal and Prosecution Services, for the respondent. Roberts Nehmer McKee, Solicitors, for the appellant. -- 2 of 2 --