INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   On 8 September this year, the appellant filed an appeal against the decision of the Vice President given on 19 August this year. An amended application to appeal was filed on the 10^th of November.  In it the appellant seeks to appeal “from the whole of the decisions of commission at Brisbane given on 19 August 2015 in matter number B2015/19, including C2015/27 and C2015/2 & 3 and TD2013/109”.  She seeks, among other things, orders requiring the application for reinstatement and the appeal to a Full Bench to be reheard.

2. [2]
   This matter has been before the Commission and this court on a number of occasions. It commenced in December 2014 when Deputy President Kaufman dismissed the appellant’s application for reinstatement. The appellant sought leave to appeal to a Full Bench of the Commission against that decision. That was in matter C/2015/3. On 14 May 2015 the Full Bench refused the application for leave.

3. [3]
   The appellant did not appeal the decision of the Full Bench. The time for filing a notice of appeal in that matter expired on 4 June 2015.

4. [4]
   The appellant then applied for an extension of time within which to appeal to this court against the decision of Deputy President Kaufman. That application was refused on 27 July this year.

5. [5]
   After that decision the appellant filed an application seeking to stay the decision of Deputy President Kaufman. On the 19^th of August 2015 Vice President Linnane dismissed the application for a stay. 

6. [6]
   In the hearing before the Vice President, the Vice President was at pains to assist the appellant to understand the nature of an application to stay a decision and why such an application was inappropriate in circumstances where the original application for reinstatement had been dismissed. The Vice President extended the appellant considerable leeway in the mention that she heard on 30 June this year. Her Honour explained to the appellant that the only way of appealing the decision of Deputy President Kaufman on a question of law was by way of appeal to this court. The time limit for appeal, though, expired many months ago and she was not granted leave in the application before me for an extension of time. Having explained to the appellant the insurmountable difficulties she faced with an application to stay a decision dismissing a reinstatement application and obtaining from the appellant what appears to be a sufficient indication that she understood that problem, the Vice President dismissed the application for a stay.

7. [7]
   The grounds advanced in the notice of appeal from that decision are diffuse. For example, it is asserted that the decision of the Vice President refers to the Workers’ Compensation Regulator, and that therefore is an error of law. That was nothing more than a typographical error in the judgment which was initially released. That error was corrected and notified to all parties shortly after it became obvious. Other grounds in the notice include an assertion that there was a lack of jurisdiction to appeal the Full Bench decision, and that the appellant had not received appropriate legal advice to appeal a Full Bench decision.

8. [8]
   The appellant complains that she did not receive procedural fairness because the matter which led to the decision on 19 August had only been listed as a mention and not a hearing. That is technically correct, but the conduct of the mention was such as to lead the Vice President, quite correctly, to the reasonable understanding that the appellant could not pursue the stay application. It was also made clear to the appellant that she would need to file an application for an extension of time within which to appeal any of the other matters. In any event, although I do not accept that the appellant was not afforded procedural fairness, the decision of the Vice President was the only one which could be made, and there was nothing which the appellant, either by way of evidence or submission, could do which would have led to a different result. The application for a stay was misconceived, and doomed to fail.

9. [9]
   The balance of the grounds in the notice of appeal are confused. They do not assert errors of law or jurisdictional error on the part of the Vice President. There are over 26 grounds set out in the notice, most of which concern the reinstatement hearing decided by Deputy President Kaufman. They do not relate in any logical way to the decision of the Vice President.

10. [10]
    Notwithstanding the effort made by the Vice President to explain to the appellant the situation in which she was placed, the appellant has continued on an erroneous path. Even on the hearing of this appeal, the appellant insisted on making submissions about the merits of a decision which she has sought to appeal on two occasions, and failed both times. No error has been demonstrated in the reasoning of the Vice President or in the orders made which would constitute either an error of law or a mistake of jurisdiction.

11. [11]
    The appeal is dismissed.

12. [12]
    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.

13. [13]
    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.

14. [14]
    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.

15. [15]
    The award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.

16. [16]
    I order that the appellant pay the respondent’s costs, to be agreed or, if not, assessed.