Du Preez v Chelden (No. 2)

[2020] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Du Preez v Chelden (No. 2) [2020] ICQ 015

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v
CHELDEN PTY LTD
ACN 071 477 891

(respondent)

FILE NOS:

C/2018/18

C/2019/5

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)
(appellant)
v
MOUNT ISA MINES LTD
ACN 009 661 447

(respondent)

FILE NOS:

C/2018/19

C/2018/28

PROCEEDING:

Appeal

DELIVERED ON:

29 June 2020

HEARING DATE:

Written submissions filed on 18 June 2020 and 19 June 2020

MEMBER:

Martin J, President

ORDER:

The appellant pay the costs of each respondent of and incidental to the application to strike out the application to appeal.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant commenced proceedings seeking orders convicting the respondents of breaches of the Mining and Quarrying Safety and Health Act 1999 – where the Industrial Magistrate dismissed the charges – where the appellant filed applications to appeal against that decision seeking orders that the respondents be convicted – where the substantive appeal was heard by the court – where the parties were alerted to a number of decisions on the issue of appealing an acquittal by the court after the appeal was heard – where each of the parties made submissions on the issue – where the respondents sought to strike out the applications to appeal on the basis that the appellant had no power or authority to appeal against an acquittal – where the appeals were struck out on the basis advanced by the respondents – where the respondents seek orders for costs of the appeal hearing and the strike-out application – whether an order for costs should be made against the appellant

Industrial Relations Act 2016, s 545
Mining and Quarrying Safety and Health Act 1999

CASES:

Bow Park Pty Ltd v Williams [2003] ICQ 62, (2004) 175 QGIG 18, applied
Burke v Simon Blackwood (Workers’ Compensation Regulator) [2013] ICQ 23, cited
Du Preez v Chelden Pty Ltd [2020] ICQ 008

APPEARANCES:

J Hunter QC and R O’Gorman instructed by Gilshenan & Luton for the appellant in each matter
A Moses QC and J R Jones instructed by MinterEllison for Mount Isa Mines Ltd
Carvosso & Winship for Chelden Pty Ltd

1. On 15 June 2020, the applications for leave to appeal were struck out.[1]  The respondents seek orders for costs of the appeal hearing (the substantive appeal) heard last year and the strike-out application. 

   [1]Du Preez v Chelden Pty Ltd [2020] ICQ 008.

2. So far as is relevant, s 545 of the Industrial Relations Act 2016 (IR Act) 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—

   (i)the party made the application or responded to the application vexatiously or without reasonable cause; or

   (ii)it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or

   (b)     a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred—

   (i)because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or

   (ii)because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.”

   Brief history of this matter

3. The relevant events took place in the following order:

   ·the appellant commenced proceedings seeking orders convicting the respondents of breaches of the Mining and Quarrying Safety and Health Act 1999,

   ·the Industrial Magistrate dismissed the charges,

   ·the appellant filed applications to appeal against that decision seeking orders that the respondents be convicted,

   ·the substantive appeal was heard,

   ·after the appeal had been heard, the parties were alerted to a number of decisions on the issue of appealing an acquittal and were asked if they wished to make submissions,

   ·each of the parties made submissions and the respondents sought to strike out the applications to appeal on the basis that the appellant had no power or authority to appeal against an acquittal,

   ·on 15 June 2020, the appeals were struck out on the basis advanced by the respondents.

   Costs

4. Each of the respondents seeks orders that the appellant pay their costs of and incidental to the substantive appeal and the strike-out application.

5. The ordinary rule is set out in s 545(1) of the IR Act, namely that each party is to bear its own costs in relation to a proceeding in the court. That rule need not be applied if s 545(2)(a) is satisfied.

6. The respondents argue that the application to appeal was misconceived and doomed to fail.  It must be observed that that was a view which was not advanced by the respondents until they were alerted by this court to the authorities on the point. They rely upon a number of authorities, including Burke v Simon Blackwood (Workers’ Compensation Regulator),[2] where the following was said:

   “[19]   … where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event.”

   [2][2013] ICQ 23.

7. That expression is consistent with the authorities that deal with this kind of issue.

8. The respondents argue that it is immaterial whether an application to strike out the appeal could have been made at an earlier time. On behalf of Mount Isa Mines Ltd (MIM), it is argued:

   “There can be no suggestion that MIM had engaged in any conduct which would disentitle it to an order for costs in respect of the entire appeal proceedings. The critical question is that the application to appeal brought by the prosecution was misconceived at the time it was filed for the reasons which the Court has advanced in its decision striking out the appeal.”

9. It is not a question of whether or not MIM is “disentitled” to an order by its conduct. Section 545 does not create an entitlement. But it is relevant to the exercise of the discretion in this matter to bear in mind that, had the application to strike out been brought timeously, then all parties would have had the opportunity to avoid incurring the costs of the hearing of the substantive appeal.

10. On behalf of Chelden Pty Ltd it was also argued that, in addition to the other points referred to, the relative positions of the parties – the appellant being a public officer of the State while Chelden is a private company – should be taken into account. I do not accept that. It is a basis which can be relevant in applications for judicial review but not in these types of cases.

11. The respondents have, in effect, succeeded on a ground which they did not argue in the substantive appeal. But, the presence of a finding that an application was made without reasonable cause or that an applicant had no reasonable prospect of success, does not mandate an order for costs in favour of the opponent. Section 545(2) provides a discretion to make such an order.

    Conclusion

12. In Bow Park Pty Ltd v Williams (No. 2),[3] Hall P considered an application for costs where the case was made that the appeal was brought “without reasonable cause” because it had no objective prospect of success. His Honour said:[4]

    “With respect, there is too much of the clarity of vision which flows from the advantage of hindsight in that submission.”

    [3][2003] ICQ 62; (2004) 175 QGIG 18.

    [4]Bow Park Pty Ltd v Williams (No. 2) [2003] ICQ 62; (2004) 175 QGIG 18 at 18.

13. There is a similar flavour to the submissions in this case. The order which best accommodates the conduct of the parties and the discretion available is that the appellant pay the costs of each respondent of and incidental to the application to strike out the application to appeal and that otherwise, there be no order as to costs.