Fahey v Keating [2003] ICQ 13 (2003) 172 QGIG 1846

1846 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate Francis Michael Fahey AND Daniel Peter Keating (No. C87 of 2002) PRESIDENT HALL 14 April 2003 DECISION By a decision of 19 December 2002 now reported 172 QGIG 78 I reserved all questions of costs both in the Industrial Magistrates Court and on the appeal pending receipt of written submissions from the parties. I have now had the advantage of written submissions and a (brief) oral argument. As to the costs of the appeal, there is no power to make an order for costs in favour of an appellant. Section 335 of the Industrial Relations Act 1999 does vest power to make an order in favour of a respondent, but only where the appeal has been brought “vexatiously or without reasonable cause”. There is no suggestion that the appellant, who was partially successful on the appeal, acted “vexatiously or without reasonable cause” in bringing the appeal. In those circumstances, the power to award costs in favour of the respondent does not arise. -- 1 of 2 -- 24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1847 The matter of costs in the Industrial Magistrates Court is a more difficult matter. Before the Industrial Magistrate the respondent (complainant below) succeeded on all three counts. With the benefit of hindsight, it now appears that the respondent should have succeeded on two counts only. Whilst in ordinary circumstances the proper exercise of the discretion at s. 157 of the Justices Act 1886 would be to allow a partially successful complainant part of his costs, see Durant v. Gardner (2000) 21 QLD Lawyer Reports 113, it would also ordinarily be a proper exercise of the discretion at s. 158 (as controlled by s. 158A) to allow the partially successful defendant part of his costs, see Latoudis v. Casey (1990) 170 CLR 534 and Commissioner of Taxation v. MacPherson [2000] 1 QdR 496. This being a case in which it is extraordinarily difficult to tease out the costs attributable to each of the counts, it seems to me that the proper approach is the robust approach of ordering that each party pay his own costs. I set aside the costs order made by the Industrial Magistrate. I order that each party bear his own costs of the proceedings in the Industrial Magistrates Court. Dated 14 April 2003. D.R. HALL, President. Released: 14 April 2003 Appearances: Mr S. Keim, instructed by Justin Crosby Solicitors, for the appellant. Mr T. Carmody SC, instructed by WorkCover Compliance Unit, for the respondent. -- 2 of 2 --