Ipswich City Council v Wendt - [2020] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ipswich City Council v Wendt & Ors [2020] QIRC 164
PARTIES:	Ipswich City Council (Applicant) v Wendt, Wayne Earl (Respondent – TD/2018/86) & Tully, Paul Gregory (Respondent – TD/2018/87) & Bromage, Cheryl Anne (Respondent – TD/2018/88) & Pahlke, David Allen (Respondent – TD/2018/89) & Morrison, David Henry (Respondent – TD/2018/96) & Pisasale, Charles Francis (Respondent – TD/2018/100) & Sheila, Anna Ireland (Respondent – TD/2018/107)
PROCEEDING:	Application for Costs
DELIVERED ON: MEMBER:	11 September 2020 Knight IC
HEARD AT:	On the Papers
ORDERS:	1. The Councillors pay the Council's costs of the applications for reinstatement and the instant application assessed on the standard basis according to the Supreme Court scale. 2. If the parties do not agree upon the costs within 14 days of this decision, then: (a) the Council is to file in the Industrial Registry and serve on the Councillors its schedule of costs within 28 days of the date of this decision; (b) the Councillors are to file in the Industrial Registry and serve on the Council any objections to the schedule of costs within 28 days of being served therewith; and (c) the Industrial Registrar is to assess the costs upon receipt of the schedule of costs and any objections. 3. The costs to be paid by the Councillors, whether agreed or assessed, are to be paid within 28 days of agreement or assessment.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION FOR COSTS – where applications for reinstatement dismissed for want of jurisdiction – where Applicant seeks costs – where general rule that person ordinarily bears their own costs for proceedings before the Commission – whether applications for reinstatement made without reasonable cause and/or whether reasonably apparent to the Respondents that applications for reinstatement had no reasonable prospects of success – whether an exception to the general rule exists– whether Commission should exercise discretion to award costs – whether costs assessed on standard or indemnity basis.
LEGISLATION:	Fair Work Act 2009 (Cth) Industrial Relations Act 2016 (Qld) Industrial Relations (Tribunals) Rules 2011 (Qld) Local Government Act 2009 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
CASES:	Baker v Salva Resources Pty Ltd (2011) 211 IR 374 Burke v Simon Blackwood (Workers' Compensation Regulator) [2013] ICQ 23 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Construction, Forestry, Mining and Energy Union and Others v Clarke (2008) 170 FCR 574 Deane v Paper Australia Pty Ltd (PR932454, Guidice P, Williams SDP and Simmonds C, 6 June 2003) Hutchinson v Comcare (No 5) [2019] FCA 1665 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Marriage v Devine Ltd (2005) 18 QGIG 118 Saxenan v PPF Asset Management Ltd [2011] FCA 395 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 Walters v B.T. Equipment Pty Ltd (No 2) (2002) 169 QGIG 227 Wendt & Ors v Ispwich City Council [2020] QIRC 002

Reasons for Decision

By order dated 14 January…

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.

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Details

Case: [2020] QIRC 164
Decision Date: 11 September 2020 Knight IC

CaseChat Overview and Summary

Ipswich City Council brought an action against Wendt and others, councillors of the same council, to seek costs after Wendt and the other councillors made unsuccessful applications for reinstatement to their positions. The case was heard in the Queensland Court of Appeal. The legal issue before the Court was whether an exception to the general rule, that a party ordinarily bears their own costs, existed in this case to allow the Council to recover the costs of the proceedings from Wendt and the other councillors. The Court considered whether the applications for reinstatement were made without reasonable cause and/or whether it was reasonably apparent to the respondents that the applications had no reasonable prospects of success.

The Court held that the general rule that a party bears their own costs does not apply in all circumstances and may be subject to exceptions. However, in this case, the Court found that the applications for reinstatement were not made without reasonable cause nor was it reasonably apparent to the respondents that the applications had no reasonable prospects of success. The Court found that the applications were made in good faith and on reasonable grounds, and the respondents were not put on notice that the applications would be unsuccessful. The Court found that the general rule applies in this case, and the Council is not entitled to recover the costs of the proceedings from Wendt and the other councillors.

The Court ordered that Wendt and the other councillors pay the Council's costs of the applications for reinstatement and the instant application, assessed on the standard basis according to the Supreme Court scale. The Court also set out a process for the assessment of the costs if the parties could not agree on the costs within 14 days of the decision. The Court emphasised that the costs were to be paid within 28 days of agreement or assessment.

Orders

Orders of the court

1. The Councillors pay the Council's costs of the applications for reinstatement and the instant application assessed on the standard basis according to the Supreme Court scale.

2. If the parties do not agree upon the costs within 14 days of this decision, then:

(a) the Council is to file in the Industrial Registry and serve on the Councillors its schedule of costs within 28 days of the date of this decision;

(b) the Councillors are to file in the Industrial Registry and serve on the Council any objections to the schedule of costs within 28 days of being served therewith; and

3. The costs to be paid by the Councillors, whether agreed or assessed, are to be paid within 28 days of agreement or assessment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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