State of Queensland v Donal Donnelly
[2015] QIRC 59
•30 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland v Donal Donnelly [2015] QIRC 059 |
PARTIES: | State of Queensland v Donal Donnelly |
CASE NO: | B/2015/7 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 30 March 2015 |
HEARING DATE: | 30 March 2015 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The Applicant, within 21 days, is to file and serve on the Respondent a schedule of the costs claimed. 2. The Respondent is to file and serve any objection to the costs claimed by 4 May 2015. 3. The matter will then be finalised by the Commission. |
| CATCHWORDS: | INDUSTRIAL LAW - application for costs - discretion exercised by Commission to award costs to Applicant - unreasonable act or omission on Respondent's part in substantive application for reinstatement - failure to accept reasonable offer on Respondent's part. |
| CASES: | Industrial Relations Act 1999 MIM Holdings v AMWU (2000) 164 QGIG 370 at 371 |
| APPEARANCES: | Mr C Murdoch, Counsel instructed by Crown Law. |
Decision
On 21 January 2015, the Commission (as constituted) issued a decision in matter TD/2014/16.
The matter related to an Application for Reinstatement made by Mr Donnelly against the State of Queensland (Department of Transport and Main Roads).
That Application was unsuccessful.
Mr Donnelly, the Respondent in this matter has been unable to be contacted by the Applicant and the Commission. Hence his non-appearance.
Appropriate Directions Order's and notifications have been sent to Mr Donnelly. Notices by way of email have been recorded as non-deliverable.
The State of Queensland [the Applicant] now applies for an Order for Costs against Mr Donnelly pursuant to s 335(1) of the Industrial Relations Act 1999:
"Power to award costs
(1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied -
…
(b)for an application for reinstatement - the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings."
The determination of an application for costs involves a two stage process. The Commission must first be satisfied that the Respondent caused the Applicant to incur costs because of an unreasonable act or omission connected with the proceedings' conduct. If that is accepted, the Commission then must decide whether or not to exercise its discretion to make an order awarding costs against the Respondent.
Unreasonable act or omission
The decision in the substantive application states that "the evidence against Mr Donnelly was strong".
This evidence included CCTV footage of Mr Donnelly's workplace which assisted the Commission in making its decision. That evidence was clearly uncontroversial and contrary to the oral evidence given by Mr Donnelly. It was clear from that evidence that Mr Donnelly's wife had not completed her driver licence test on her own without any inappropriate action having been taken on Mr Donnelly's part.
Secondly, the evidence of both Ms Ahrens and Ms Ruffell contradicted the evidence of Mr Donnelly on significant points.
Mr Donnelly and his Solicitors had been provided with this information before the commencement of the hearing (the only exception being the oral evidence given by Ms Ruffell on the day of the hearing).
With that knowledge, the Applicant claims that it was entirely unreasonable for the Respondent to file the application and to pursue it. His actions had been the subject of investigation by his employer at the time and he had been given the opportunity to provide responses to those claims. There was no question of a denial of natural justice in that process as found in the Commission's decision.
MIM Holdings v AMWU[1] holds that Section 335(1)(a) of the Act can apply to a case which was objectively recognisable as one which could not succeed at the time the application was made.
[1] MIM Holdings v AMWU (2000) 164 QGIG 370 at 371
In this matter, the Applicant submits that the evidence against the Respondent was strong and following the show cause process, it ought to have been known by him that that his application could not succeed.
Failure to accept reasonable offer of settlement
The Applicant says that the failure to accept a reasonable settlement offer can amount to an unreasonable act for the purposes of s 335 of the Act.
The material produced to the Commission shows that the Applicant made a reasonable offer to settle the matter six days before the matter was to be heard and after the exchange of witness statements. The letter stated that the Respondent's application was without merit and that the Applicant had very good prospects of successfully defending the matter. The offer was that each party bear their own costs and withdraw from the proceedings as at close of business on 22 September 2014.
This offer was rejected by the Respondent who claimed that the allegations "might possibly be nothing beyond hearsay and a workplace personality clash". A counter-offer was made for the Applicant to pay $25,000 to the Respondent with the Applicant bearing the Respondent's legal costs on an indemnity basis.
The Applicant claims that the Respondent's refusal to accept the Applicant's offer in light of the strong evidence against him which included the CCTV footage, was unreasonable.
Exercise of discretion to award costs
In Gold Coast City Council and Natalia Bedran (B/2013/14) the Commission stated that "The fact that the Commission dismissed [the respondent's] claim does not of necessity mean that the claim was made without reasonable cause."
In that case the Commission also found that where costs have been caused to have been incurred due to unreasonable acts, costs may be awarded.
In this matter, it should have been clear to the Respondent that his application had no objective prospects of success. The Applicant states that "His pursuit of the matter unreasonably is only aggravated by his dishonest evidence and his refusal to accept a reasonable offer shortly prior to the commencement of the hearing".
I propose to exercise my discretion pursuant to s 335 of the Act in favour of the Applicant.
The Applicant seeks its costs of responding to the application for reinstatement and seeks orders as per its attachment of the Application for Costs.
Released today is the Order for Costs. As detailed in that Order, the Applicant, within 21 days, is to file and serve on the Respondent a Schedule of the costs claimed. The Respondent is to file and serve any objection to the costs claimed by 4 May 2015. The matter will then be finalised by the Commission.
Order accordingly.
0
0
0