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Schloss v Bell

Schloss v Bell

Case [2016] ICQ 17 7 September 2016

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Schloss v Bell; Bell v Schloss [2016] ICQ 017
PARTIES:	Schloss, Dennis William (Appellant) v *Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act* 2004** (Respondent)
CASE NO: PARTIES: CASE NO:	C/2014/43 *Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act* 2004 v Schloss, Dennis William** (Appellant) C/2014/44
PROCEEDING:	An appeal against decision of Industrial Magistrate - Costs
DELIVERED ON:	7 September 2016
HEARING DATE:	7 June 2016
MEMBER:	Deputy President O'Connor
ORDERS:	The parties are invited to submit orders on the appeal and the costs of the hearing below.
CATCHWORDS:	PROCEDURE - COSTS - Power to award costs in Industrial Magistrates Court proceedings - Whether costs must be determined at the time of the dismissal of a complaint - Where the Industrial Court has power to award costs exercising its appellate jurisdiction - Power of the Industrial Court to amend order dismissing complaint - Power under the "slip rule" to correct an error or oversight to express the real intention of the Court - Quantum of costs - Whether costs should be awarded on an indemnity basis - Whether the matter was of "special difficulty, complexity or importance" - Whether the cross-appeal was made vexatiously or without reasonable cause".
CASES:	Industrial Relations Act 1999, ss 329, 335, 341 Justices Act 1886, ss 158, 158A, 158B, 159 Justices Regulation 2004 Schedule 2, reg 18 Industrial Relations (Tribunals) Rules 2011 r 95 Petroleum and Gas (Production Safety) Act 2004 (Qld) ss 670, 702
APPEARANCES:	Bell v Carter; Ex Parte Bell [1992] QCA 245 Morley v Senewirantne & Anor [2008] QDC 296 Gibson v Canniffe; Kidd v Baragan; Slabon v Moore [2008] QDC 319 Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 Hatton v Harris [1892] AC 547 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 Ray and Sue Boundy Pty Ltd v Daniel Paul Gwydir (1999) 162 QGIG 191 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 77 ALR 190 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Wentworth v Woollahra Municipal Council (1982) 149 CLR 256 Gould v Vaggelas (1985) 157 CLR 215 Latoudis v Casey (1990) 170 CLR 534 MacPherson v Commissioner of Taxation [1998] QCA 396 Murray v Radford [2003] QCA 91 Cullinane v McCahon [2014] QDC 120 Senior Constable Sheehan v Leo [2016] QDC 131 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NZLR 489 Bell and Gordon v Uniman Australia Pty Ltd (No. 4) [2013] QMC 3. Morley v Senewiratne & Anor [2008] QDC 296 Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 Hickey v Crime and Misconduct Commission [2008] QDC 340 Bell v Schloss [2014] QMC 23 MIM Holdings Ltd v AMWU

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 Schloss v Bell

Details

AGLC: Schloss v Bell [2016] ICQ 17
Case: [2016] ICQ 17
Decision Date: 7 September 2016

CaseChat Overview and Summary

Schloss was the appellant in this matter and Bell was the respondent. Schloss had initiated proceedings in the Industrial Magistrates Court, which were dismissed. Schloss appealed to the Industrial Court, which allowed the appeal and remitted the matter to the Magistrates Court. Bell cross-appealed, and Schloss applied for indemnity costs. The court was required to determine whether the Industrial Court had the power to award costs on appeal, whether it could amend its order dismissing the complaint, and whether the cross-appeal was vexatious. The court found that the Industrial Court had the power to award costs on appeal and that it could amend its order to express its true intention. The court also found that the cross-appeal was not vexatious. The court held that costs should not be awarded on an indemnity basis, and that the matter was not of special difficulty, complexity, or importance. The parties were invited to submit orders on the appeal and the costs of the hearing below.

Orders

Orders of the court

The parties are invited to submit orders on the appeal and the costs of the hearing below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Schloss v Bell [2016] ICQ 17

Most Recent Citation

Baker v Smith (No 2) [2019] QDC 242

Cases Citing This Decision

Stone v Belmore Bulk Materials Pty Ltd [2024] ICQ 23
Citation 1

…dent O'Connor (as he then was) considered the application of the discretion conferred by the Justices Act to order costs, in the following terms: [6] [2016] ICQ 17, 28 – 34 (‘ Schloss ’). [28] The power to award costs in respect of a summary hearing in the Industrial Magistrates Court are found in ss 158 and 158…
Guilfoyle v Niepe Constructions Pty Ltd (No 2) [2021] QMC 3
Citation 2 (Para 1)

…)[19]. [19] See for example Hickey v Crime and Misconduct Commission [2008] QDC 340 at [48] and Schloss v Bell v Bell; Bell v Schloss [2016] ICQ 17 at [61] both cited with approval on appeal in Baker v Smith [2019] QDC 242 at [455] et seq. with respect to section 232A(2) JA which is cognate to section 158B(2) JA…
Logan City Council v Brookes (No 2) [2020] QDC 221
Citation 3 (Para 41)

…urs, it is not surprising that his Honour refused to impose costs greater than scale costs. [8] As to the first two matters see also Schloss v Bell [2016] ICQ 17 at [41]…
Baker v Smith (No 2) [2019] QDC 242
Citation 4 (Para 8)

…The respondent also relied on Schloss v Bell [2016] ICQ 17 and Gibson v Canniffe [2008] QDC 319, considered further below. The former case adopted the expedient initially used by the Magistrate in Morley to vacate orders he had made dismissing a complaint. In the latter, Devereaux SC DCJ distinguished Bell on th…

See all citing cases →

Cases Cited

Senior Constable Sheehan v Leo [2016] QDC 131
Citation 1 (Para 7)

…not a case that involved special difficulty, including having regard to the reversal of onus issue that does arise from time to time …" [17] [2016] QDC 131.…
Harrison v President, Industrial Court [2016] QCA 89
Citation 2 (Para 10)

…ion of the Industrial Court. At no point would the Industrial Court have exercised the original jurisdiction of the Industrial Magistrate." [4] [2016] QCA 89 [84], [86]-[87].…
Whitby v Stockair Pty Ltd & Anor [2015] QDC 79
Citation 3 (Para 9)

…is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her." [18] [2015] QDC 79 [37].…
Bell v Schloss [2014] QMC 23
Citation 4 (Para 8)

…rovided by Section 732(3)(d) of the Act to the required standard and the increase in the maximum penalty is not activated."[29] [29] Bell v Schloss [2014] QMC 23 [84]. Having considered the evidence, it was open for her Honour to come to the conclusion that she did. It is not the submission of the cross-appellan…
Cullinan v McCahon [2014] QDC 120
Citation 5 (Para 6)

…exists; and (b) it is just and reasonable to make a higher award having regard to the identified special difficulty, complexity or importance." [16] [2014] QDC 120 [20].…
Bell v Unimin Australia Pty Ltd (No4) [2013] QMC 3
Citation 6 (Para 2)

…ed. The figure is made up of $23,625, being three times the scale, plus senior and junior counsel fees of $350,212.50 and outlays of $21,933.40. [22] [2013] QMC 3.…
Gibson v Canniffe [2008] QDC 319
Citation 7 (Para 6)

…may be that while a court is entertaining an application for costs the "formal dismissal" is thereby deferred and the order is yet imperfect." [3] [2008] QDC 319 [76].…
Morley v Senewiratne & Anor [2008] QDC 296
Citation 8 (Para 5)

…on to make an order about costs. No submission was made to the contrary. His Honour stated that the matter would have to be rectified on appeal." [2] [2008] QDC 296 [2].…
Hickey v Crime and Misconduct Commission [2008] QDC 340
Citation 9 (Para 7)

…r indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear." [25] [2008] QDC 340.…
Murray v Radford [2003] QCA 91
Citation 10 (Para 3)

…ated in subsection (2). Section 158A is thus, plainly, a limitation on the discretion which s 158 permits to order costs against a complainant." [15] [2003] QCA 91.…
Durrant v Gardner [2000] QDC 198
Citation 11 (Para 7)

…d be used as a guide in arriving at a quantum above the scale ( Washburn v State Energy Commission (WA) 1992 8 WAR 188 at 193, 194; Durrant v Gardner [2000] QDC 198, McGill DCJ, 23 June 2000 at [46]). It is submitted that the amount awarded should be a small multiple of that scale. To my mind, it is clear that th…
MacPherson v Commissioner of Taxation [1998] QCA 396
Citation 12

…ra Municipal Council (1982) 149 CLR 256 Gould v Vaggelas (1985) 157 CLR 215 Latoudis v Casey (1990) 170 CLR 534 MacPherson v Commissioner of Taxation [1998] QCA 396 Murray v Radford [2003] QCA 91 Cullinane v McCahon [2014] QDC 120 Senior Constable Sheehan v Leo [2016] QDC 131 Whitby v Stockair Pty Ltd & Anor [201…
Bell v Carter; Ex parte Bell [1992] QCA 245
Citation 13 (Para 3)

…nt to s 158(1) of the Justices Act 1886. The respondent relies on Bell v Carter; Ex Parte Bell [1] (" Bell v Carter ") to support their argument. [1] [1992] QCA 245.…
Latoudis v Casey [1990] HCA 59
Citation 14

…td v Parramatta City Council (No 2) (1982) 151 CLR 590 Wentworth v Woollahra Municipal Council (1982) 149 CLR 256 Gould v Vaggelas (1985) 157 CLR 215 Latoudis v Casey (1990) 170 CLR 534 MacPherson v Commissioner of Taxation [1998] QCA 396 Murray v Radford [2003] QCA 91 Cullinane v McCahon [2014] QDC 120 Senior Constable S…
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [1988] HCA 2
Citation 15

…AC 547 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 Ray and Sue Boundy Pty Ltd v Daniel Paul Gwydir (1999) 162 QGIG 191 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 77 ALR 190 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Wentworth v Woollahra Municipal Council (1982) 149 CLR…
Gould v Vaggelas [1985] HCA 75
Citation 16 (Para 1)

…sparingly.[12] [11] Wentworth v Woollahra Municipal Council (1982) 149 CLR 256, 265 per Brennan, Dawson, Toohey and Gaudron JJ. [12] Gould v Vaggelas (1985) 157 CLR 215, 275 per Gibbs CJ.…
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59
Citation 17 (Para 9)

…that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it." [10] (1982) 151 CLR 590, 593.…
Wentworth v Woollahra Municipal Council [1982] HCA 41
Citation 18 (Para 1)

…The Court has a power to set aside an order, although I acknowledge that such a power should be exercised cautiously[11] and sparingly.[12] [11] Wentworth v Woollahra Municipal Council (1982) 149 CLR 256, 265 per Brennan, Dawson, Toohey and Gaudron JJ. [12] Gould v Vaggelas (1985) 157 CLR 215, 275 per Gibbs CJ.…
Mr Connor made general reference to the case of Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 1387
Citation 19 (Para 6)

…ltimately to avoid injustice. This obvious purpose of the slip rule underlies a number of decisions of judges of this court and of other courts." [8] (1995) 133 ALR 206, 212.…
Schloss v Bell; Bell v Schloss [2016] ICQ 017
Citation 20

…Schloss v Bell; Bell v Schloss [2016] ICQ 017…
[1892] AC 547 [1892] AC 547
Citation 21 (Para 5)

…ection would at once have been made if the matter had been drawn to the attention of the judge who made the decree." [6] (1987) 9 NSWLR 446, 453. [7] [1892] AC 547, 558.…
[2000] 3 NZLR 489 [2000] 3 NZLR 489
Citation 22 (Para 10)

…se itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him.'" [19] [2000] 3 NZLR 489, 496-7.…
Elyard Corporation Pty Ltd v Ddb Needham Sydney Pty Ltd [1995] FCA 943
Citation 23

…esident of the Industrial Court of Queensland & Ors [2016] QCA 89 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 Hatton v Harris [1892] AC 547 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 Ray and Sue Boundy Pty Ltd v Daniel Paul Gwydir (1999) 162 QGIG 191 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 77 ALR…

Legislation Cited

Justices Act 1886 (Qld) 158, 158A, 158B, 159
5 mentions (from Para 1)
Industrial Relations Act 1999 (Qld) 329, 335, 341
4 mentions (from Para 10)
Petroleum and Gas (Production Safety) Act 2004 (Qld) 670, 702
3 mentions (from Para 1)
Industrial Relations (Tribunals) Rules 2011 (Qld) 95
2 mentions (from Para 3)
Industrial Court Rules 1997 (QLD)
1 mention (from Para 2)
Petroleum and Gas (Production and Safety) Act 2004 (Qld)
1 mention (from Para 5)
Resource Management Act 1991 (NZ)
1 mention (from Para 10)
Workplace Relations Act 1997 (Qld)
1 mention (from Para 2)