Mutonhori v Mount Isa City Council
[2025] QCA 66
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- Notable Unreported Decision
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- Mutonhori v Mount Isa City Council[2025] QCA 66
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Mutonhori v Mount Isa City Council[2025] QCA 66
Mutonhori v Mount Isa City Council[2025] QCA 66
[2025] QCA 66
COURT OF APPEAL
BOND JA
Appeal No 602 of 2025
QIRC No 35 of 2024
SIMON MUTONHORI Appellant/Respondent
v
MOUNT ISA CITY COUNCIL Respondent/Applicant
BRISBANE
THURSDAY, 8 MAY 2025
JUDGMENT
BOND JA: The appellant before this court is the appellant in a proceeding pending in the Industrial Court of Queensland, constituted by Deputy President Hartigan.
On 23 January 2025, the Industrial Court made an interlocutory order in the course of that proceeding in these terms:
“Leave is granted for the Respondent to be legally represented pursuant to section 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld).”
The appellant has, by notice of appeal filed 12 February 2025, sought to appeal to this Court in respect of that order.
There is jurisdiction to appeal to the Court of Appeal from Deputy President Hartigan’s decision, limited to the grounds of error of law or excess or want of jurisdiction.
It transpires, having regard to the written submissions of the appellant and oral submissions made by the appellant today, that the appellant does not, despite his notice of appeal, really complain about the order granting the respondent leave to be legally represented in the appeal with which the Industrial Court is seized. Rather, the appellant’s complaint concerns observations made in the reasoning of Deputy President Hartigan which the appellant thinks are adverse to the argument he wishes to present on the substantive hearing of his appeal in the Industrial Court.
Appeals are against orders, not reasons. That proposition is trite law. For the appeal in this court to succeed, the appellant would need to demonstrate that the discretionary order made by Deputy President Hartigan to permit the respondent to be legally represented was in error and the error would need to be either legal error or jurisdictional error.
No such error has even been identified or seems to me to be arguable in relation to the order made. And, even if it was, it would be necessary, because the appeal is on a matter of procedure, to persuade this court, before it would interfere with such an order, that allowing the error to go uncorrected would cause the appellant a substantial injustice.
It is difficult to conceive of how there could be any merit in an argument that the decision to allow the respondent to be legally represented in the proceeding with which the Industrial Court is presently seized, which decision was made on the justification that it would enable the proceeding to be dealt with more efficiently having regard to its complexity, could possibly cause any substantial injustice, and no suggestion to that effect was made before me by the appellant.
Insofar as it is appropriate to have regard to the prospects of the appeal in dealing with the matter which is formally before me, I express the view that it is almost inevitable, barring some extraordinary circumstance that I cannot presently foresee, that the appellant will fail on the appeal to this Court.
The remarks I have made so far address one of the issues that is relevant to the application that is currently before me. That application is an application for security for costs by the respondent to the appeal in this court, who is also the respondent in the Industrial Court.
The principles relevant to the disposition of an application for security for costs of an appeal are not in dispute. They have been dealt with in many cases, of which it is necessary to refer only to Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, Murchie v Big Cart Track Pty Ltd (No 2) [2003] 1 Qd R 528, Woolworths Group Pty Ltd v Day [2018] QCA 79, and Green v Scottney-Turbill [2023] QCA 141.
The respondent seeks an order that security for costs be provided in the sum of $23,100, such security to be provided within 28 days of the date of the order, and if it is not provided within time, the appeal should be dismissed. I think that such an order should be made.
The authorities reveal that the relevant considerations include:
- whether the application has been made promptly;
- a consideration of the amount sought;
- whether the appellant is impecunious;
- the prospects of success of the appeal; and
- whether making the order might stifle the appeal, the latter consideration having less significance on an appeal where somebody has already had their day in court on the issue the subject of the appeal.
A consideration of all of those matters supports the making of the order.
As to delay, the notice of appeal was filed on 12 February 2025. The respondent first was apprised of the likelihood that the appellant was impecunious on 26 February 2025 and wrote, raising the subject of security, to the appellant on 3rd March, giving time to respond. There was no response within time, and then the application for security was filed on 11 April. The consideration of delay does not sound against success of the application.
As to the question of quantum, the amount is modest. The amount is proved on the affidavit material. The applicant, being a litigant in person, submitted that the amount was extravagant and formulated with a motivation which would be an abusive one. There is no evidence of that proposition, and given the evidence as to the calculation of the amount and my assessment that it is modest, I reject that. A consideration of quantum supports the amount that has been sought.
As to impecuniosity, the evidence relied on by the applicant respondent seeks making an order in the amount sought, and indeed it was, in effect, common ground between the appellant, who is, as he described it, an ordinary working person, that he could not afford to meet any costs order made against him in the event the appeals fails. That consideration supports the order being made.
The fourth consideration concerns the combined issues of prospects and whether an order would stymie the appeal. Although the order undoubtedly would stymie the appeal, the prospects are such as to make it appropriate to make an order. Indeed, the prospects are so poor that I am persuaded, having regard to the authority of Toms v Fuller [2010] QCA 73, that it is appropriate to make the self-executing order that has been sought.
Accordingly, the orders I make are as follows:
- Pursuant to rule 772 of the Uniform Civil Procedure Rules 1999 (Qld), the appellant provide security for costs of the appeal in the sum of $23,100 in a form approved by the Registrar.
- The security be provided by 4pm on 22 May 2025.
- If in default of compliance with orders 1 and 2, the appeal is dismissed.
- The appellant pay the respondent’s costs of the application on the standard basis.