Brambles Australia Limited v Newman [2003] ICQ 12 (2003) 172 QGIG 1846

1846 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Brambles Australia Limited AND Clive John Newman (No. C1 of 2003) No. 2 PRESIDENT HALL 11 April 2003 DECISION By a decision of 6 March 2003 now reported at 172 QGIG 1321 the Court dismissed an appeal by Brambles Australia Limited against a decision of the Industrial Magistrate at Maroochydore finding Brambles Australia Limited guilty of a failure to identify a risk which caused a death, and guilty of failing to provide a system of work that was safe and without risk to workplace health and safety. The issue of costs was reserved. Both parties have now made fulsome written submissions upon the question of costs. It is common ground that it is the effect of s. 335 of the Industrial Relations Act 1999 that the Court has power to award costs only if it be shown that the appeal was made “vexatiously or without reasonable cause”. It is conceded by the respondent to the appeal that the appeal was not made vexatiously. The case advanced by the respondent is that the appeal was made without reasonable cause because the appeal had no objective prospect of success. Two points should be made about the submission. One, the Court has the great advantage of hindsight. The Court now knows that the appeal was unsuccessful and is called upon to make an assessment of the merits of the appeal after having had the benefit of a full argument. That was not the situation of the appellant and its advisers in determining to prosecute the appeal. I accept the respondent’s submission that the argument pressed by the appellant was inconsistent with certain of the authorities, but the reports do not disclose the skill and vigour with which the arguments had been put in the earlier cases. I can understand why the appellant might have been hopeful that the authorities would be reconsidered. Two, in assessing the reasonableness of the decision to institute an appeal, regard must be had to the nature of the proceedings. The proceedings here were penal proceedings. The appellant, being a body corporate, was not exposed to the risk of a custodial sentence. But the appellant had been convicted. That was a serious matter for the appellant and for its officers. Appellants seeking to shed the stigma of a conviction should, I think, be allowed some measure of latitude. Whilst the appellant’s case was a weak one, I am a long way from being convinced that the appeal was made without reasonable cause. I dismiss the application for costs. Dated 11 April 2003. D.R. HALL, President. Released: 11 April 2003 Appearances: Mr D. Williams, of Minter Ellison Solicitors, for the appellant. Ms J. Cameron, of Division of Workplace Health and Safety Legal and Prosecution Services, for the respondent. -- 1 of 1 --