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

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.
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…

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 Du Preez v Chelden (No. 2)

Details

AGLC: Du Preez v Chelden (No. 2) [2020] ICQ 15
Case: [2020] ICQ 15
Decision Date: 29 June 2020

CaseChat Overview and Summary

In Du Preez v Chelden (No. 2), the appellant, Du Preez, initiated legal proceedings against the respondents, Chelden, seeking orders to convict them of breaches under the Mining and Quarrying Safety and Health Act 1999. The Industrial Magistrate dismissed the charges, leading Du Preez to file an appeal against this decision. The substantive appeal was heard by the court, which then alerted the parties to several relevant decisions regarding the appeal of an acquittal. The respondents argued that Du Preez had no authority to appeal an acquittal, and subsequently sought to strike out the appeal applications on this basis. The appeals were dismissed on the grounds presented by the respondents. In light of the dismissal, the respondents applied for costs associated with the appeal hearing and the strike-out application.

The primary legal issue before the court was whether the respondents were entitled to costs for the appeal and the strike-out application. The court acknowledged that while the respondents had effectively succeeded on a ground they did not argue in the substantive appeal, this did not automatically mandate a costs order. The court referenced Section 545(2) of the relevant legislation, which grants discretion in making such orders. The court further drew on the case of Bow Park Pty Ltd v Williams (No. 2), where Hall P discussed the application for costs when the appeal was deemed to be without reasonable cause. The court concluded that the submissions in this case had a similar hindsight bias and thus exercised its discretion to order that the appellant pay the costs of each respondent for the application to strike out the appeal, but made no other order regarding costs.

In summary, the court dismissed the appeal and the strike-out application. It found that while the respondents were successful in striking out the appeal, the submissions made by both parties contained hindsight bias. The court exercised its discretion under Section 545(2) and ordered that the appellant pay the costs of each respondent for the application to strike out the appeal, but did not order any additional costs. This nuanced approach balanced the conduct of the parties with the available legal discretion.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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