National Retail Association Ltd, Union of Employers v Simpson
[2016] QIRC 142
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- National Retail Association Ltd, Union of Employers v Simpson[2016] QIRC 142
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National Retail Association Ltd, Union of Employers v Simpson[2016] QIRC 142
National Retail Association Ltd, Union of Employers v Simpson[2016] QIRC 142
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | National Retail Association Limited, Union of Employers v Simpson [2016] QIRC 142 |
PARTIES: | National Retail Association Limited, Union of Employers (Applicant) v Nicole Simpson (Respondent) |
CASE NO: | B/2015/43 |
PROCEEDING: | Application for Costs |
DELIVERED ON: | 13 December 2016 |
HEARING DATE: | 27 November 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW - Application for Costs arising out of Application for Reopening B/2015/12 - Assertions that Application to Reopen was with made without reasonable cause, and was a de facto attempt to re-litigate the original Application - Found that the Application to Reopen was not made without reasonable cause - Application for Costs dismissed. |
CASES: | Industrial Relations Act 1999 Trading (Allowable Hours) Act 1990 National Retail Association Limited, Union of Employers [2015] QIRC 075 Simpson v National Retail Association Limited, Union of Employers [2015] QIRC 172 Rebecca Woods and Mr Richard Jackson v Collie Chamber of Commerce and Industry Inc. T/A Collie CCI; Mr David Churches; Mr Nic Smargiassi; Mr Marc Bernardi [2015] FWC 6620 Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 Joseph Michael Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; 43 IR 57 Kevin James Smith v Mackay Business Brokers Proprietary Limited 176 QGIG 317 MIM Holdings Ltd v Australian Workers' Union, Union of Employees Queensland (2000) 165 QGIG 371 |
APPEARANCES: | Mr A. Herbert, Counsel for National Retail Association Limited Union of Employers, the Applicant. Mr G. Raptis of Master Grocers' Australia for Nicole Simpson, the Respondent. |
Decision
- [1]On 27 April 2015, the Commission as currently constituted, issued the Decision National Retail Association Limited, Union of Employers[1], which resulted in the granting (in part) of the National Retail Association Limited, Union of Employers (NRA) Application for Sunday trade for non-exempt shops in Dalby (the primary Dalby Application).
- [2]This matter relates to an Application to Reopen made by Ms Nicole Simpson who had opposed that Application. Ms Simpson relied upon s 280 of the Industrial Relations Act 1999 (the Act) to prosecute her claim.
The Delay in releasing this Decision
- [3]An agreement had been reached between the parties to this matter that a Decision would release only after the finalisation of two major NRA applications which were pending at the time. One of those Decisions has been finalised and the parties are agreeable to this Decision being released before the finalisation of the remaining NRA application.
- [4]Section 280 of the Act states as follows:
"Procedures for reopening
(1) Proceedings may be reopened on application by a person under subsection (2) by –
…
(2)(c)(ii) a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association."
- [5]Section 335 of the Act states as follows:
"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 proceedings.
(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."
Background to the Application
- [6]Ms Simpson is the General Manager of the Western Downs Regional Co-op, which owns and operates the Dalby Foodworks store. Ms Simpson's Application was made on 13 May 2015. Ms Simpson was represented by Master Grocers Australia Ltd (MGA). That Application was heard and subsequently dismissed by the Commission on 24 September 2015 (Simpson v National Retail Association Limited, Union of Employers[2]).
- [7]At the hearing of the Application to Reopen, NRA was represented by Mr Herbert of Counsel and MGA was represented by Mr G. Raptis of MGA. Neither Mr Herbert nor Mr Raptis were representing the NRA and MGA in the primary Dalby Application. The representatives at that stage were Mr J. Franken for NRA and Mr C. Dorber for MGA.
The Application
NRA submissions
- [8]NRA seeks costs incurred by it from the hearing of the Application to Reopen. NRA does not submit that the Application to Reopen was made vexatiously, but rather, that it was made without reasonable cause.
[8] In Woods and Jackson v Collie Chamber of Commerce and Industry Inc. T/A Collie CCI & Ors[3], (upheld on Appeal) Deputy President Bull stated in reference to Keep v Performance Automobiles Pty Ltd[4], where the following was recorded:
"The power to order costs pursuant to s 611(2)(a) was recently considered by a
Full Bench in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[5] (Church). Church is authority for the following propositions:
- (i)The power to order costs pursuant to s 611(2) should be exercised with caution and only in a clear case.
- (ii)A party cannot be said to have made an application 'without reasonable cause' within the meaning of s 611(2)(a), simply because his or her argument proves unsuccessful.
- (iii)One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.
- (iv)The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed' , 'manifestly groundless' of 'discloses a case which the Court is satisfied cannot succeed'."
- [9]Further, NRA referred to Kanan v Australian Postal and Telecommunications Union[6] where His Honour, Wilcox J stated:
"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'."
- [10]
"The power triggered by the finding that the application to appeal was made without reasonable cause is a power which is a discretionary power. The section contemplates the respondent, who establishes an application is made without reasonable cause, may fail to recover costs. However, the circumstances triggering the power are not irrelevant to the exercise of discretion. A respondent put to the expense of defending an unreasonably made application should not be denied costs without good reason. No such reason has been identified in argument. With respect to the applicant, his argument is fundamentally a reagitation of the submission which led to the bench to conclude the proposed appeal has no prospects of success."
- [11]The NRA referred to the Commission's comments in dismissing the re-opening Application. Those comments were:
"Is this a case of a party 'wise in hindsight' or does the Commission perceive the real prospect of serious factual error or misrepresentation? In my view, the essence of the applicant's concerns are more akin to that of a disappointed participant in a matter. In terms of the relevant criteria to be considered, this almost invariably involves a balancing of all factors by the Commission. This matter was no different… What has been sought by the applicant in this matter is the opportunity to reargue the correctness and the weight that the Commission has attributed to the evidence which has been produced in the hearing."
- [12]NRA submitted that as the Legislature did not permit the right of an appeal from persons who failed to succeed before the Commission in a trading hours matter, it was inappropriate for those same persons to seek to utilise the reopening process for the purpose of trying to readdress the same issues which had failed at first instance.
- [13]It was clear from the decision rejecting the claim to reopen the primary Dalby Application that it had some of the hallmarks of one "wise in hindsight". However, as has often been stated in other similar decisions, the fact that an application has failed does not automatically render it having been made "without reasonable cause".
- [14]Mr Raptis referred the Commission to the decision of MIM Holdings Ltd v Australian Workers' Union[8], where President Hall stated:
"One must not rush to judgment on a submission that a case had no reasonable prospect of success. Hindsight is a wonderful thing. Knowledge of the outcome of an application equips one with great clarity of mind in retrospectively assessing the applicant's prospects of success.
…
There is the additional consideration that the very purpose of section 335 is to ensure that applicants are not deterred by the spectre of an order for costs. One must not weigh prospects of success over astutely. The power triggered by the finding that the application to appeal was made without reasonable cause is a power which is a discretionary power."
- [15]Mr Raptis was curious as to why NRA engaged the services of Counsel in this matter, when it had other employees who may have been able to conduct the proceedings and had previously done so in similar matters. Also rejected was the proposition made by NRA that the reopening proceedings had in effect been a de facto appeal against the primary Dalby Application.
- [16]Mr Raptis says that Ms Simpson had been seeking to establish in her reopening Application that the Commission had been misled with respect to some of the submissions which had been made and that some "vital and relevant material" then available, had not been properly introduced in the hearing.
- [17]I have previously commented upon the somewhat unusual manner in which the advocates for NRA and MGA in the primary Dalby Application conducted their respective cases. At some point, all of their witnesses had not been heard and a decision of these advocates was made to submit a number of affidavits from both sides unchallenged. This had the consequence of ensuring that very little if anything could be done with any of the affidavits as each one contradicted the other. The prospect of confusion for others involved in that hearing emanating from that course of action was highly probable. It was an Application that had been strongly contested by those in favour of and those that opposed the Application.
Consideration of the submission and Conclusion
- [18]I have been unable to form the view that Ms Simpson undertook the Application to Reopen without reasonable cause. She had clearly misconstrued the question of weight attributable by the Commission to various elements of s 26 of the Trading (Allowable Hours) Act 1990. She has also expressed concern regarding material she thought should have been introduced in the primary Dalby Application. Those factors have been duly considered and in the exercise of my discretion, the Commission is of the view that Ms Simpson's Application to Reopen was not undertaken without reasonable cause. Relevant to this matter, Hall P stated in MIM Holdings Ltd v Australian Workers' Union, Union of Employees Queensland[9]:
"Knowledge of the outcome of an application equips one with great clarity of mind in retrospectively assessing the applicant's prospects of success."
- [19]I accept that Ms Simpson genuinely held the view that the matter should be revisited for the reasons which she had outlined.
- [20]That those reasons were ultimately not accepted by the Commission, does not mean that her Application was made without reasonable cause.
- [21]In the exercise of my discretion and for the reasons given in this Decision, I have determined to dismiss the Application for Costs.
Footnotes
[1] National Retail Association Limited, Union of Employers [2015] QIRC 075
[2] Simpson v National Retail Association Limited, Union of Employers [2015] QIRC 172
[3] Rebecca Woods and Mr Richard Jackson v Collie Chamber of Commerce and Industry Inc. T/A Collie CCI; Mr David Churches; Mr Nic Smargiassi; Mr Marc Bernardi [2015] FWC 6620
[4] Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956
[5] Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810
[6] Joseph Michael Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; 43 IR 57
[7] Kevin James Smith v Mackay Business Brokers Proprietary Limited 176 QGIG 317
[8] MIM Holdings Ltd v Australian Workers' Union, Union of Employees Queensland (2000) 165 QGIG 371
[9] MIM Holdings Ltd v Australian Workers' Union, Union of Employees Queensland (2000) 165 QGIG 371