Dalliston v Taylor (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)

BM ALLIANCE COAL OPERATIONS PTY LTD
(second 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:

1. The appellant is to pay the costs of the application for joinder by the second respondent on an indemnity basis. The costs are to be as agreed or, if not, assessed on the Supreme Court standard.

2. 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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dalliston v Taylor (No 2)

Details

AGLC: Dalliston v Taylor (No 2) [2015] ICQ 26
Case: [2015] ICQ 26
Decision Date: 25 September 2015

CaseChat Overview and Summary

In Dalliston v Taylor (No 2), the appellant, Dalliston, sought a review of a decision made by the Chief Inspector of Coal Mines regarding an acceptable level of risk. The first respondent, Taylor, was not deemed a proper party to the appeal, and the second respondent was subsequently joined. Dalliston, who holds a statutory role as an Industry Safety and Health Representative, was unsuccessful on appeal. The primary legal issues before the court were whether the nature of the proceedings and Dalliston's statutory role warranted a departure from the general rule of costs, such that each party should bear their own costs. Additionally, the court had to determine if Dalliston should pay indemnity costs to the second respondent due to the lack of a reasonably arguable basis for opposing the joinder.

The court examined the nature of the proceedings and Dalliston's role, considering whether these factors justified a departure from the usual rule that the losing party pays the winner's costs. It was noted that the proceedings involved a public duty and a statutory role, which could potentially alter the usual cost consequences. The court also assessed the second respondent's application for indemnity costs, considering the lack of a reasonably arguable basis for Dalliston's resistance to the joinder. The court found that the nature of the proceedings and Dalliston's statutory position did indeed warrant a departure from the general rule, leading to a conclusion that each party should bear its own costs. Furthermore, the court determined that it was appropriate to order Dalliston to pay indemnity costs to the second respondent because there was no reasonable basis for Dalliston's resistance to the joinder.

The court's reasoning concluded that the unique nature of the proceedings and Dalliston's statutory role necessitated a departure from the usual cost consequences. The court found that the second respondent's application for indemnity costs was justified due to the lack of a reasonably arguable basis for Dalliston's opposition to the joinder. Therefore, each party was ordered to bear its own costs, and Dalliston was also ordered to pay the second respondent's costs on an indemnity basis. This decision underscores the importance of the specific circumstances of the case, including the statutory role of the parties and the nature of the public duty involved, in determining the appropriate allocation of costs.

Orders