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[Extract from Queensland Government Industrial Gazette,

dated 10 June, 2005, Vol. 179, No.6, pages 145-146]

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 335(1) - application for costs

Newmont Pajingo Pty Ltd AND Tomac Enterprises Pty Ltd (No. 2) (No. C1 of 2005)

PRESIDENT HALL 30 May 2005

DECISION

By a decision of 23 December 2004, now reported at 178 QGIG 35, the Queensland Industrial Relations Commission granted an application under s. 276 of the Industrial Relations Act 1999 by Tomac Enterprises Pty Ltd. The Commission made remedial orders and an order for compensation. There was no application for costs. The Commission had no power to grant costs. The power to grant costs as s. 335(1)(a) provides, may be exercised only against an applicant. Tomac Enterprises Pty Ltd was the Applicant.

Newmont Pajingo Pty Ltd subsequently appealed. By a decision of 11 April 2005, now reported at 178 QGIG 373, the appeal was dismissed. Tomac Enterprises Pty Ltd now seeks costs.

I quite accept that s. 335(1)(a) authorises the Court to order an Appellant to pay costs where an appeal is made vexatiously or without reasonable cause: compare 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. But the power is exercisable about the costs of and incidental to the appeal. The language is not apt to vest power to treat the proceedings at first instance and the appellate proceedings as stages in the one matter and to make orders about costs of and incidental to the matter. The language of s. 347(1) of the Industrial Relations Act 1988 (CTH) was very different, referring as it did to "a proceeding including an appeal in a matter arising under this Act." Nothing said in the authorities upon the section, e.g. Thompson v Hodder (1990) 21 FCR 467, about an appeal and proceedings at first instance being parts of "one matter" is of any present persuasive value. It would, I might add, be more than a little bizarre if a finding that an appeal was made "without reasonable cause", operated to vest this Court with power to make orders about the cost of proceedings at first instance in favour of a successful Applicant, an order which the Commission could not have made.

It is not contended that the appeal was made vexatiously. The contention is that the appeal was made "without reasonable cause".

The circumstance that an appeal is wholly unsuccessful does not in itself demonstrate that it was launched without "reasonable cause". An appeal should not be characterised as an appeal having no objective prospect of success unless, at the time when the appeal was commenced, it was readily recognisable as doomed to failure; compare Bow Park Pty Ltd v Williams (2003) 175 QGIG 18. And, one must not be deceived by the clarity of vision which comes with the advantage of hindsight.

Here, the appeal required significant argument. Whilst quantum is no substitute for quality, it may legitimately be noted that the appeal took a day and a-half; a very lengthy hearing indeed in this Court. The appeal required mature consideration. It traversed authorities and statutory provisions which have seldom been before the Court. I quite accept that there was a substantial body of law relating to a counterpart New South Wales provision (and its predecessors). But whilst highly persuasive, New South Wales authorities are not binding and on occasion have not been followed. The sentencing tariffs under the Workplace Health and Safety Act 1995, for example, owe little to New South Wales principles and are quite different in amount. I am not prepared to say that in testing what is still comparatively novel legislation, Newmont Pajingo Pty Ltd surrendered the shield against costs which s. 335(1)(a) seeks to put in place. To the extent that Newmont Pajingo Pty Ltd sought to assert that the Commission's conclusions of fact were so perverse as to an amount to an error of law, the case was a weak one, but a weak case may be advanced without the risk of paying costs "as long as it is not utterly hopeless"; compare Nilsen v Loyal Orange Trust (1997) 76 IR 180 at 181 per North J.

Granted that indemnity costs may be awarded where litigation is pressed by a party who has imprudently rejected an offer to settle: compare Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (2) (1992) 27 NSWLR 721; and Colgate Palmolive v Cussons (1993) 46 FCR 225 at 233 per Sheppard J. I have no difficulty in accepting that evaluating whether there is reasonable cause for an appeal, one should take into account open offers to settle. But here, the offer related to the proceedings in the Commission.

Doubtless, there will be cases in which the proceedings at first instance will have a "knock on" effect on the appeal; compare Bankstown City Council v Paris (1999) 93 IR 209 at 220. But the issues about obturated refusal to settle the proceedings at first instance and the issue of loss of entitlement to bring an appeal without fear of the award of costs, seem to me, in this case, to be quite discrete.


I dismiss the application for costs.

Dated 30 May 2005.

D.R. HALL, President.
Released: 30 May 2005 / Appearances:
Mr A. Herbert, instructed by McCullough Robertson, Solicitors for the Appellant.
Dr J. Berwick, instructed by Craddoch Murray Neumann, Solicitors for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2005.