Maher v Isaac Regional Council

Case [2020] QIRC 191

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Maher v Isaac Regional Council [2020] QIRC 191

Maher, Trevor Desmond
(Applicant)

v

Isaac Regional Council
(Respondent)

CASE NO:

TD/2019/43

PROCEEDING:

Termination Dispute – Application for costs

DELIVERED ON:

 15 October 2020

HEARING DATES:

MEMBER:

HEARD AT:

5 May 2020 (Mention)
1 June 2020 (Mention)

McLennan IC

The issue of costs was heard on the papers.
ORDER: 1.   That, within 28 days, Mr Trevor Desmond Maher is to pay the Isaac Regional Council $12,000 as costs incurred in these proceedings.

CATCHWORDS:

LEGISLATION:

CASES:

APPEARANCES:

TERMINATION DISPUTE – APPLICATION FOR COSTS – where the dismissed employee had been subject to disciplinary allegations – whether the council had complied with procedural requirements in terminating the local government employee – consideration of ‘without reasonable cause’ – consideration of ‘no reasonable prospect of success’.

Acts Interpretation Act 1954 (Qld) sch 1, s 32CA

Industrial Relations (Tribunals) Rules 2011 (Qld) r 70

Industrial Relations Act 1999 (Qld) s 355(1)

Industrial Relations Act 2016 (Qld) s 321, s 322, s 545

Local Government Act 2009 (Qld) s 197

Local Government Regulation 2012 (Qld) reg 283

Uniform Civil Procedure Rules 1999 (Qld) sch 2

Workers’ Compensation and Rehabilitation Act 2013 (Qld) s 563

Baker v Salver Resources Pty Ltd [2011] FWAFB 4014

Blackbird Energy Pty Ltd v Turner (2007) 185 QGIG 81

Blows v Townsville City Council [2016] QIRC 066

Bow Park Pty Ltd v Williams (No. 2) (2004) 175 QGIG 18

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

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Greenwood v State of Queensland (Sunshine Coast Wide Bay Health Service District) [2016] QIRC 125

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries

Industrial Union of Employees Queensland (2000) 164 QGIG 370

Promnitz v Gympie Regional Council [2015] ICQ 011

Re Christina Hatchett v Bowater Tutt Industries Pty Ltd (No 3) (1991) 39 IR 31

Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370

Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

Yousif v Workers’ Compensation Regulator [2019] ICQ 10

Mr C. Joy of Craig Joy Workplace Consulting for Mr T. Maher

Ms N. A-Khavari of Counsel instructed by Ms R. Pezzutti of Wotton & Kearney for Isaac Regional Council

Reasons for Decision

  1. Mr Trevor Desmond Maher (the Applicant) filed an Application for Reinstatement regarding his former employer, the Isaac Regional Council (the Respondent, the Council), on 30 May 2019.[1] Mr Maher was employed by the Council for approximately three years. His last position held with Council was Programme Leader – Regulatory Services.

    [1] ‘the Reinstatement Application’.

  2. In May 2018, the Council began investigating allegations of misconduct said to have been perpetrated by Mr Maher. He was subsequently suspended on pay. An investigation and show cause process ensued. In a letter dated 10…

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AGLC
Maher v Isaac Regional Council [2020] QIRC 191
Case
[2020] QIRC 191
Decision Date

CaseChat Overview and Summary

The case of Maher v Isaac Regional Council involved a terminated local government employee, Mr Trevor Desmond Maher, who sought reinstatement or compensation. The Isaac Regional Council opposed the application, arguing that the proceedings were without reasonable cause. The court was tasked with determining whether the Council had complied with procedural requirements in terminating Mr Maher and whether the application was instituted without reasonable cause or had no reasonable prospect of success. The court examined the relevant statutory provisions and case law to assess whether the application was manifestly groundless or if there was no substantial prospect of success. The court considered the arguments presented by both parties, including the Council's assessment of the costs incurred in defending the application. In its decision, the court found that Mr Maher had no reasonable prospect of success in his reinstatement application due to his self-reported ill-health, which would have precluded him from reinstatement or compensation. The court determined that a departure from the default position of parties bearing their own costs was warranted and ordered Mr Maher to pay the Council's costs in the amount of $12,000. The court emphasised that even where the criteria under the relevant section were met, an order for costs was not mandated and remained at the discretion of the Commission.

The court awarded costs to the Council based on its finding that Mr Maher's application had no reasonable prospect of success. The court considered the total costs incurred by the Council since the commencement of the proceedings and calculated a global figure to encapsulate all relevant circumstances, including the Council's assessment. The court concluded that Mr Maher should pay the Council $12,000 as costs incurred in these proceedings, which included the substantive reinstatement application and the costs application. The court emphasised that the presence of a finding that an application was made without reasonable cause or that an applicant had no reasonable prospect of success did not mandate an order for costs in favour of the opponent. Section 545(2) provided a discretion to make such an order. The court exercised its discretion and ordered Mr Maher to pay the Council's costs within 28 days. The court's decision was based on a careful consideration of the relevant legal principles and the circumstances of the case. The court's order for costs was intended to reflect the nature and outcome of the proceedings and the circumstances of the parties.

Orders

Orders of the court

1. That, within 28 days, Mr Trevor Desmond Maher is to pay the Isaac Regional Council $12,000 as costs incurred in these proceedings.

Background

Background to the litigation

In Kanan v Australian Postal Telecommunications Union, his Honour Justice Wilcox provided (emphasis added, citations removed):[8]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.[8] Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, 29. In Yousif v Workers’ Compensation Regulator, his Honour Justice Martin considered s 563 of the Workers’ Compensation and Rehabilitation Act 2013 (Qld). That section presents precisely the same question as s 545(2)(a) of the IR Act. In that matter, while considering the term ‘without reasonable cause’, his Honour said (emphasis added, citations removed):[9]The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.[9] Yousif v Workers’ Compensation Regulator [2019] ICQ 10, [31], citing MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, 371. It has been held that the test imposed by the expression ‘without reasonable cause’ is comparable to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings.[10] In that regard, Chief Justice Barwick provided (emphasis added, citations removed):[11]The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91; ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’[10] Re Christina Hatchett v Bowater Tutt Industries Pty Ltd (No 3) (1991) 39 IR 31, [8] followed in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370.[11] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129-130.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have compared the costs incurred by the Council since 11 February 2020 in these proceedings against the Magistrates Court Scale. I have determined that the order which best reflects the nature and outcome of these proceedings, and the circumstances of the parties, is that Mr Maher is to pay the Council’s costs in these proceedings in the amount of $12,000. That amount encompasses the Reinstatement Application and this costs application. Conclusion The default position in proceedings such as these is that the parties are to bear their own costs. I may disturb that presumption and award costs, if I am satisfied that the proceedings were made without reasonable cause or if it would have been reasonably apparent to the party that the application had no reasonable prospect of success. The term ‘may’ in s 545 indicates that the power could, rather than must, be exercised, at the discretion of the Commission.[34] Even where the criteria under s 545 are met, an order for costs is not mandated. As his Honour Justice Martin recently said in Du Preez v Chelden (No. 2):[35]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. [34] Acts Interpretation Act 1954 (Qld) s 32CA(1).[35] Du Preez v Chelden (No. 2) [2020] ICQ 015, [11]. In considering the material before me, I have determined that Mr Maher had no reasonable prospect of success in his Reinstatement Application. It should have become apparent to him during these proceedings that his self-reported ill-health would have precluded him from reinstatement, or compensation in the alternative, due to that illness preventing him from working during the relevant period. His persistence with these proceedings has placed the Council in the position of incurring costs in defending his application. As such, I am of the opinion that a departure from the default position of parties bearing their own costs is warranted. In considering the quantum of costs, I have calculated a global figure to encapsulate all of the relevant circumstances, including the assessment provided by the Council. I have concluded that Mr Maher is to pay the Council $12,000 as costs in these proceedings, which includes the substantive Reinstatement Application and the costs application. He will have 28 days to do so. I order accordingly.Orders:1. That, within 28 days, Mr Trevor Desmond Maher is to pay the Isaac Regional Council $12,000 as costs incurred in these proceedings.

Ratio Decidendi

Legal Principle Established

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