5
[Extract from Queensland Government Industrial Gazette,
dated 28 July, 2006, Vol. 182, No 14, pages 510-514]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Vocational Education, Training and Employment Act 2000 - s. 230 - application to appeal
Eulanda Margaret Nessel AND Training and Employment Recognition Council and
Trivision Pty Ltd (ex parte) (AT/2006/3)
COMMISSIONER BROWN / 13 July 2006DECISION
This decision relates to an application by Eulanda Margaret Nessel (the Applicant) appealing a decision of the Training and Employment Recognition Council (the Council) (First Respondent) related to her employment. The application names Trivision Pty Ltd as the Second Respondent.
The Second Respondent took no part in proceedings.
The Council is established pursuant to s. 167 of the Vocational Education, Training and Employment Act 2000 (the VETE Act). Section 71 of that Act enables the Council to, inter alia, reprimand parties to a registered training agreement.
Section 230 of the VETE Act, enables an aggrieved person to appeal a decision of the Council to the Commission and s. 265(1)(d) and (e) enable the Commission to hear the application under the Industrial Relations Act 1999. Section 230(3) of the VETE Act requires an appeal to be started within 21 days of the notification of the decision to be appealed.
This application relates to an appeal against a decision by the First Respondent to reprimand the Applicant.
Chronology:
Early .05.06 / Field Officer conducts investigation.08.05.06 / Applicant seeks 14 day extension to respond.
10.05.06 / Council determines to issue a reprimand to the Applicant and advises the Applicant.
26.05.06 / Correspondence to First Respondent - Applicant seeks review of the decision.
29.05.06 / Letter from Council to Applicant's Solicitors agreeing to the review.
01.06.06 / Application to appeal filed in Queensland Industrial Relations Commission.
09.06.06 / Directions for hearing issued (including directions to immediately serve material on Respondents).
13.06.06 / Council reverses decision to reprimand the Applicant operative from 10.05.06 and advises the Applicant by letter.
29.06.06 / Applicant serves appeal material on Council (directed to do so on 09.06.06 "immediately").
29.06.06 / Mr McColm (First Respondent) speaks to Messrs O'Sullivans (Solicitors for Applicant) suggesting discontinuance. O'Sullivans request payment of costs. Request denied.
05.07.06 / O'Sullivans' letter to Industrial Registrar (faxed at 11.48pm) advising of Council's action in rescinding the decision to reprimand the Applicant and seeking to amend the orders sought from those stated in the original application to "an order setting aside the decision of the Council as and from 10.05.06" and seeking costs in the order of $2,200.00.
06.07.06 / Hearing - Queensland Industrial Relations Commission.
There was an argument between the parties as to whether or not the order sought (as amended) should be issued or the matter dismissed.
I am reluctant to spend time considering:
1. whether or not to grant leave to amend the orders sought; and
2. whether it is preferable to grant the amended order or dismiss it.
Given the current state of play namely that the reprimand has been rescinded from the date of issue, a decision either way on either question in a practical sense changes nothing.
The Applicant asked for a review, was granted a review, and had her reprimand rescinded abinitio.
In the circumstances, I do not believe it to be in the public interest to use the resources of the Commission to issue an order that would change nothing nor, in my view, would it be constructive to instruct a party to do that which it has already done.
I dismiss the application for orders.
The Applicant indicated that the reason for continuing with the application was primarily to pursue the issue of costs.
Regarding costs.
Section 335 of the Industrial Relations Act states:
"General power to award 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 submitted that the First Respondent had become an applicant when at the outset of the hearing the First Respondent submitted that in all of the circumstances the matter should be dealt with by way of dismissal (TP 15 l. 7 and TP 3 l. 40).
This, according to the Applicant, put the First Respondent in the position of an applicant in that this constituted an "application for discontinuance" thereby enabling the Commission to consider costs pursuant to s. 335(1)(a).
The Applicant accepted that s. 335(1)(a) did not apply unless the Commission found that the comments of the First Respondent in proceedings constituted an application (TP 11 ll. 31-38).
The First Respondent argued that its earlier comments were a submission and not an application. It further submitted that if any comment had been interpreted by the Commission as an application then the application was withdrawn (TP 14 l. 10).
The Applicant conceded the ability of the First Respondent to withdraw such an application however, for completeness, I indicate that I regard the comments of the First Respondent to have been a submission as to how the matter should be disposed of and not an application.
I do not regard the First Respondent as having become an applicant therefore I find that costs pursuant to s. 335(1)(a) are not available to the Applicant.
To save the parties possible further costs on appeal, if it is that the First Respondent's submission constituted an application then I find that the application was not vexatious nor was it made without reasonable cause. I agree with Hall P. in M.I.M. Holdings Ltd v AMWU (2000) 164 QGIG 370 where he stated:
"As a matter of first impression, the purpose of s. 335 seems to be to spare parties the rule of having to pay the costs of an opposing party whilst providing a measure of protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause ... I am reluctant to construe the provision in such a way that a successful appellant (respondent) would always, subject to the (proper) exercise of discretion, recover costs of the appeal and the application whilst a successful appellant (applicant) would never do so. It seems to me to be more likely that s. 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made.".
If the First Respondent's comments did constitute an application, it was not one without genuine prospects of success, nor was it vexatious or without reasonable cause.
I reject the submissions of the Applicant as they relate to s. 335(1)(a).
The Applicant further submitted that the First Respondent's actions in the matter could be considered for the purposes of costs in line with s. 335(1)(b) in that the application appealing the First Respondent's reprimand was in fact an application for the "reinstatement" of the Applicant's previously unblemished work record.
This, according to Mr O'Sullivan, allowed the Commission to consider the actions of the Council in the matter in relation to any unreasonable acts or omissions.
Mr O'Sullivan then submitted that the First Respondent had been tardy in its handling of the matter and had committed an unreasonable act by failing to signify in the correspondence of 29 June 2006 to the Applicant that the time limit for lodging the appeal in the Commission could be extended by consent pending the outcome of the review.
He argued that such an assurance from the First Respondent would have avoided the need for the appeal to be lodged on 1 June 2006 thus the Applicant's costs involved in the appeal could have been largely avoided.
The First Respondent submitted that the accepted interpretation of the term "an application for reinstatement" was, in this jurisdiction and under this Act, an application for reinstatement to a position held prior to an alleged unfair dismissal.
For this reason the First Respondent submitted that it was not caught by the tests in s. 335(1)(b). It further submitted that in any event nothing that it had done, or not done, could be regarded as an unreasonable act or omission.
I agree with the submissions of the First Respondent regarding the meaning of the words "application for reinstatement" as they appear in s. 335(1)(b). This matter is an application to appeal a decision reprimanding a person pursuant to the VETE Act. This conclusion relates to these circumstances only. An application appealing a decision of the Council to terminate a training agreement where that decision ended a person's employment and if reversed would restore it, might be seen in a different light and require closer examination.
Section 74 of the Industrial Relations Act 1999 indicates clearly the usual and accepted meaning of the term "application for reinstatement".
I find that this is not an application for reinstatement and that costs against the First Respondent cannot be awarded pursuant to this provision.
Again, in an effort to save the parties further costs, I have examined the issue from a position assuming that the argument of the Applicant is correct and the First Respondent is caught by s. 335(1)(b). That is, that costs might be awarded against them in the event that an unreasonable act or omission caused costs to be incurred by the Applicant.
The Applicant's submissions were made orally and can be summarised as follows:
1. Natural justice to the Applicant was denied during the initial investigation.
2. Tardiness. The Applicant submitted that the time taken by the First Respondent at various stages in the matter was excessive constituting an unreasonable act.
3. Process. The failure of the Council to offer an extension of the time in which to lodge an appeal was an omission causing costs. This offer, according to the Applicant, should have been contained in the Council's letter to the Applicant of 29 May 2006 and wasn't.
4. The Applicant submitted that overall the actions of the First Respondent constituted special circumstances of the kind referred to by McKenzie J. in Goldman Data General Australia 1993 114 QGIG 379.
The First Respondent contested each argument.
Regarding s. 335(1)(b), this section requires that the alleged unreasonable acts or omissions have caused costs to be incurred, and further must be acts or omissions "connected with the conduct of the application".
The initial investigation by the First Respondent prior to 1 June 2006 was not connected with the conduct of the application.
The application was filed in the Registry on 1 June 2006.
By Directions Order dated 9 June 2006 signed by the Registrar, the Applicant was directed to, inter alia, "immediately" serve a copy of the application and the order on the Respondents.
The Applicant did so on 29 June 2006 some 20 days later.
The Applicant requested the review on 26 May 2006, 16 days after the issuing of the reprimand. The First Respondent agreed and advised the Applicant of this on 29 May 2006 and on 13 June 2006 the First Respondent had completed the review and advised the Applicant of the decision to rescind the reprimand.
Whilst there were exchanges occurring between the Applicant and the First Respondent over a period of time. It appears that the First Respondent's earliest knowledge of the details of the application to appeal was 29 June 2006.
It was common ground that on the same date there occurred a conversation between the Applicant and the First Respondent wherein the Applicant proposed the settlement on the basis of the payment of $1,000.00 by the First Respondent to the Applicant to defray costs.
Also common ground was that the First Respondent rejected the proposal based on its belief that this was not a matter that would give rise to the question of costs and therefore, in the First Respondent's view, the claim lacked foundation.
According to the Applicant, had the proposal been accepted the whole matter would have "gone away" and no further costs incurred.
The questions to be answered are:
1. Can the activities of the First Respondent connected with the conduct of the application be classified as tardy and constituting unreasonable acts or omissions that have caused costs to be incurred in connection with the conduct of the application?
2. Did the absence of an offer by the First Respondent to agree to extend the time in which to lodge the appeal constitute an unreasonable act or omission connected with the conduct of the application and, if so, did it cause costs to be incurred?
3. Did the refusal of the Applicant's proposal to settle on 29 June 2006 constitute an unreasonable act that caused the Applicant to incur costs?
Regarding 1. The answer is no. The First Respondent was not served with the appeal documents until 29 June 2006. The review commenced before the application was filed on 1 June 2006 and was concluded within 2 weeks. A reasonable period in my view.
The Applicant was notified promptly of both the agreement to review and the result of the review, this also was reasonable.