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- Unreported Judgment
INDUSTRIAL COURT OF QUEENSLAND
O'Hara v State of Queensland (No. 2)  ICQ 018
O'Hara, Michael John
State of Queensland
11 September 2020
10 September 2020
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the applicant lodged an application for reinstatement with the Commission in excess of 16 years outside the statutory prescribed time limit – where the Industrial Commissioner determined not to exercise a discretion to extend time – where the appellant applied to appeal to the Industrial Court – where the Industrial Court dismissed the application to appeal – where the respondent sought costs under s 545 of the Industrial Relations Act 2016 – whether the appellant made the application vexatiously – whether the appellant made the application without reasonable cause.
Industrial Relations Act 2016 (Qld), ss 541, 545
Industrial Relations Act 1999 (Qld), s 335
Industrial Relations (Tribunal) Rules 2011 (Qld), r 139
Kanan v Australian Postal and Telecommunications Union  FCA 366, cited
MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370, cited
Newport Pajingo Pty Ltd v Tomac Enterprises Pty Ltd (No. 2) (2005) 179 QGIG 145, cited
Wanninayake v State of Queensland (Department of Natural Resources and Mines)  ICQ 35, applied
The Appellant in person.
Mr S J Hamlyn-Harris, instructed by Crown Law, for the Respondent.
Reasons for Decision
- Judgment in this matter was given on 13 July 2020. In that decision, the appeal was refused on the following basis: the Appellant failed to articulate, in any meaningful way, any grounds why the Industrial Commissioner's discretion should be upset nor were any grounds raised to enliven the Court's appellate jurisdiction; the application to appeal did not identify any error of law or any excess or want of jurisdiction; the appeal did not comply with r 139 of the Industrial Relations (Tribunals) Rules 2011 because it did not state the "concise grounds of appeal"; to permit the proceedings in the Queensland Industrial Relations Commission (the Commission) to progress was a waste of the resources of the Commission and the State of Queensland; and it was otherwise not in the public interest for the proceedings to continue.
- The parties were given the opportunity to provide written submissions on the question of costs. The Respondent seeks the costs of this application and the appeal pursuant to s 541(c) of the Industrial Relations Act 2016 (the IR Act).
- As a general rule in the Court a person must bear their own costs in relation to a proceeding. However, the Court does have a power, in certain circumstances, to award costs. Section 545 of the IR Act relevantly provides:
545 General power to award costs
- (1)A person must bear the person's own costs in relation to a proceeding before the court or commission.
- (2)However, the court or commission may, on application by a party to the proceeding, order –
- (a)a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied –
- the party made the application or responded to the application vexatiously or without reasonable cause; or
- it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; ...
- The principles to be applied in applications such as this were considered by Martin J in Wanninayake v State of Queensland (Department of Natural Resources and Mines). That case concerned the predecessor of s 545 – s 335 of the Industrial Relations Act 1999. His Honour wrote:
An application has been made by the Respondent for an order under s 335 of the Industrial Relations Act 1999. That Act permits the court to make an order that an unsuccessful applicant pay costs in circumstances where an application was made vexatiously or without reasonable cause.
It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her. Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her, but that is not a reason to deny a successful party its costs. The appeal was never going to succeed. It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.
Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded. It follows that the application was made without reasonable cause, and so the jurisdiction is enlivened.
- In MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
- 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.
- I respectfully adopt what was said by Wilcox J in Kanan v Australian Postal and Telecommunications Union where his Honour wrote:
It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.
- The Appellant did not advance any argument, either in his oral or written submissions, to respond to Mr Hamlyn-Harris' contention that the appeal was made without reasonable cause and, consequently, a costs order ought to be granted in favour of the Respondent. Mr O'Hara's submissions were irrelevant and merely traversed matters which had already been the subject of argument before either the Court or Commission.
- As set out in my published reasons for decision on 13 July 2020, it was clear that the appeal could not succeed. The Appellant had no prospect of success on any of the grounds of appeal. At the time the appeal was commenced, it was readily recognisable as doomed to failure.
- The accepted rationale for making a costs order is that a measure of indemnity should be conferred upon the Respondent for the costs it has been obliged to incur in responding to a proceeding which is "objectively recognisable as one which could not succeed at the time when the application was made".
- The purpose of an order for costs is to compensate the person in whose favour it is made, not to punish the person against whom the order is made.
- In the present case, I see no discretionary reason to withhold the making of an order for costs in favour of the Respondent.
- In the circumstances, an order for costs is therefore appropriate.
- I make the following orders:
1. The Appellant pay the Respondent's costs of and incidental to the appeal on the standard basis on the Supreme Court scale.
2. If the parties do not agree upon the costs within 14 days of this decision, then:
- (b)the Appellant is to file and serve any objection to those costs within 28 days of being served with the schedule of costs; and
- (c)the Industrial Registrar is to assess the costs upon receipt of the claim and any objection.
- The costs to be paid by the Appellant, whether agreed or assessed, are to be paid within 30 days of agreement or assessment.
- Published Case Name:
O'Hara v State of Queensland (No. 2)
- Shortened Case Name:
O'Hara v State of Queensland (No. 2)
 ICQ 18
Member O'Connor VP
11 Sep 2020