Dalliston v Chief Inspector of Coal Mines (No 2)
[2015] ICQ 26
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Dalliston v Chief Inspector of Coal Mines (No 2)[2015] ICQ 26
- Add to List
Dalliston v Chief Inspector of Coal Mines (No 2)[2015] ICQ 26
Dalliston v Chief Inspector of Coal Mines (No 2)[2015] ICQ 26
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Dalliston v Taylor & Anor (No 2) [2015] ICQ 026 |
PARTIES: | GREG DALLISTON, INDUSTRY SAFETY & HEALTH REPRESENTATIVE (appellant) v GAVIN TAYLOR, CHIEF INSPECTOR OF COAL MINES (first respondent)
|
FILE NO/S: | C/2013/16 |
PROCEEDING: | Appeal |
DELIVERED ON: | 25 September 2015 |
HEARING DATE: | 23 July 2015 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – NATURE OF PROCEEDINGS – PUBLIC DUTY INVOLVED – where the appellant was unsuccessful on appeal – where the first respondent was not a proper respondent to the appeal – where the appellant has a statutory role as an Industry Safety and Health Representative – where the appeal involved a review of a decision of the Chief Inspector of Coal Mines relating to determining what is an acceptable level of risk – whether the nature of the proceedings and the appellant’s statutory role lead to a conclusion that each party should bear its own costs PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where the second respondent successfully applied to be joined in the appeal – where costs in the application were reserved – where, prior to the application being filed, the second respondent invited the appellant to consent to a direction for joinder without the necessity for formal material to be filed – where the second respondent submits that it ought receive the costs of the application on an indemnity basis because there was no reasonably arguable basis for the resistance by the appellant to the joinder of the second respondent – whether it is appropriate to order that the appellant pay indemnity costs in the circumstances Coal Mining Safety and Health Act 1999, s 243, s 244, s 246(2), s 248(3) |
CASES: | Latoudis v Casey (1990) 170 CLR 534 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Western Australia v Collard [2015] WASCA 86 |
APPEARANCES: | C Hartigan for the appellant M Byrne QC and A Freeman for the first respondent P Roney QC for the second respondent Slater & Gordon for the appellant G Cooper, Crown Solicitor for the first respondent Ashurst Australia for the second respondent |
- [1]The appeal in this matter was dismissed on 23 July 2015.[1] The first respondent (Mr Taylor) seeks an order for his costs of the appeal. The second respondent (BMA) seeks:
- (a)An order for costs on the indemnity basis for its application to be joined as a respondent to the appeal, and
- (b)An order for its costs of the appeal.
- (a)
- [2]The appellant seeks an order that each party bear its own costs.
- [3]The Court is given the power to award costs by s 248(3) of the Coal Mining Safety and Health Act 1999 (‘the Act’). It provides:
“248 Powers of court on appeal
…
- (3)The court may make an order for costs it considers appropriate.”
Who was the proper respondent?
- [4]No point was taken, either before or during the appeal, about who should have been the respondent in this appeal. Indeed, it was not discussed until I raised it with counsel during the submissions on costs. It is relevant to the order sought by BM Alliance Coal Operations (BMA) for its costs on an indemnity basis on its application to be joined to the appeal.
- [5]In this case, Mr Taylor should not have been named as a respondent. He was the decision-maker. Section 243 of the Act identifies who may appeal a review decision of the chief inspector but no guidance is provided as to the identity of the appropriate respondent. The observations in R v Australian Broadcasting Tribunal; ex parte Hardiman[2] are apposite in this case:
“There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the of the Tribunal.”[3]
- [6]The nature of an appeal to this Court is described in s 246(2) of the Act:
“(2) An appeal is by way of rehearing, unaffected by the chief inspector's review decision or a directive given.”
- [7]As the appeal is a rehearing, the proper parties are those which were, notionally, engaged before the Chief Inspector on his review of the directive. As BMA was the applicant for the review of Mr Dalliston’s directive and, as its application resulted in the setting aside of the directive, it was the obvious respondent to any appeal under s 244 of the Act.
- [8]I pause to note that Mr Taylor, although he should not have been the respondent, conducted his part in the appeal in an entirely appropriate manner. The evidence he called and the submissions which were made on his behalf were for the assistance of the Court and not the promotion of any particular case.
The application to join BMA
- [9]BMA applied to be joined as a respondent to the appeal in June 2013. This was two months after the appeal was filed. The application for joinder was granted in March 2014 and the costs were reserved.
- [10]BMA submits that it ought receive those costs on an indemnity basis because there was no reasonably arguable basis for the resistance by Mr Dalliston to the joinder of BMA.
- [11]The opposition to the joinder is difficult to understand unless it was opposed on a purely forensic level. In submissions before O'Connor DP, senior counsel for Mr Dalliston said:
“So whilst BMA has an interest or could be affected by the decision of the court, a real question remains as to the extent to which its participation in the appeal if it was joined as a party would be of assistance to the court in resolving the appeal.
We submit it’s not clear what role BMA would play over and above beyond (sic) the role that one would anticipate the chief inspector to play, that is to defend the decision that the chief inspector made on the basis of the information that was provided to the chief inspector.”
- [12]That submission did not correctly characterise the role of the chief inspector. It was not for him to defend the decision. BMA had sought the decision which, in the event, the chief inspector gave and, thus, it was the proper party to be the respondent to the appeal. Nevertheless, Mr Dalliston maintained his opposition to the application and sought an order that it be dismissed.
- [13]In May 2013 BMA invited Mr Dalliston to consent to a direction for joinder without the necessity for formal material to be filed. This was, in effect, a Calderbank offer. Mr Dalliston’s response to that offer and to other requests for the matter to be dealt with by way of a consent order was that a discretion still had to be exercised by the court. It is correct that the joinder of any person to a proceeding requires an exercise of discretion in accordance with the circumstances of the application and the relevant provisions of the Industrial Relations Act 1999. But, in a case where the true respondent should always have been BMA it is inconceivable that the discretion would not be exercised in favour of BMA. The approach taken by Mr Dalliston was completely wrongheaded. It showed a wilful disregard of the clear basis for the application and the well-recognised legal principles to be applied on an application for joinder. It was doomed to failure. These are circumstances in which it is appropriate that a party which has been put to additional unnecessary expense should not have to bear that cost.
- [14]I order that Mr Dalliston pay the costs of the application for joinder by BMA on an indemnity basis. The costs are to be as agreed or, if not, assessed on the Supreme Court standard.
Costs on the appeal
- [15]In the ordinary course of an appeal in this Court, costs follow the event. The appellant submits that the nature of the proceedings and Mr Dalliston’s statutory role lead to a conclusion that each party should bear its own costs.
- [16]For the reasons I have given above, Mr Taylor should not have been a party to the appeal in the first place and so is entitled to his costs on the appeal.
- [17]It was submitted for Mr Dalliston that because of his statutory position and the safety aspects of the matter the prosecution of the appeal should be regarded as being in the public interest and, as a result, there should be no order as to costs. The argument with respect to the “public interest” nature of the application is inconsistent with authority. In Latoudis v Casey[4] Mason CJ said:
“The argument that police and other public officers charged with the enforcement of the criminal laws will be discouraged by the apprehension of adverse orders for costs from prosecuting cases which should be brought is without substance and is no longer accepted by the courts.”[5]
- [18]It was submitted on behalf of BMA that this is not a “public interest case” in any event. It was argued that neither the public generally nor any limited class of them (whether miners at this mine or otherwise) would benefit from having the chief inspector’s decision overturned. I do not think it is necessary that the question of whether or not this case should properly be regarded as a “public interest” case need be decided. I am prepared to proceed, for the sake of consideration of the arguments, to assume that it is a “public interest” case. There is no general rule that such a case will inevitably lead to an order that all parties bear their own costs.
- [19]
“[27] To depart from the general rule as to costs on the basis that the litigation is what is commonly described as ‘public interest litigation’ or as a ‘test case’ (which is a form of public interest litigation) raises the immediate difficulty, as the primary judge noted at [17]–[18], that those concepts defy precise definition and of themselves provide an inadequate description of the circumstances in which the general rule as to costs may be ousted.
[28] In Oshlack, McHugh J (with whom Brennan CJ agreed) said there is ‘inherent imprecision in the suggested concept of “public interest litigation’” [71]. Gaudron and Gummow JJ described it as ‘a “nebulous concept” unless given … further content of a legally normative nature’ [30]. In Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, Black CJ and French J (as his Honour then was) observed that:
To say of a proceeding that it is brought ‘in the public interest’ does not of itself expose the basis upon which the discretion to award or not award costs should be exercised [19].
[29] In Ruddock, Black CJ and French J suggested that the concept of ‘public interest litigation’ may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event [14]. They pointed out, however, that the fact a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation [18].
[30] As the Full Court of the Supreme Court of Western Australia observed in Buddhist Society of Western Australia (Inc) v Shire of Serpentine — Jarrahdale [1999] WASCA 55:
[g]reat care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner … In our view, the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be the rarity which this Court supposed it would be in the South West Forests Defence Foundation case [11].”
- [20]Mr Dalliston did not identify any special circumstances, whether as a “public interest” case or an ordinary case, which would take these proceedings out of the general rule with respect to costs.
- [21]The appellant is to pay the costs of the first and second respondents of the appeal on the standard basis to be agreed, or if not agreed, assessed on the Supreme Court standard.