Torres Strait Island Regional Council v McIlroy-Ranga (No 2)

[2023] ICQ 29

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Torres Strait Island Regional Council v McIlroy-Ranga (No 2) [2023] ICQ 029

PARTIES:

TORRES STRAIT ISLAND REGIONAL COUNCIL

(appellant)

v
LUKE ASHLEY McILROY-RANGA

(respondent)

FILE NO:

C/2023/8

PROCEEDING:

Appeal

DELIVERED ON:

28 November 2023

HEARING DATE:

Decision made on the papers without oral hearing

MEMBER:

Davis J, President

ORDER:

There be no order as to costs of the appeal

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – COSTS – where the appellant is a local authority – where the appellant employed the respondent – where the respondent made a claim for proportionate annual leave upon termination of employment – where the appellant denied the claim – where the Queensland Industrial Relations Commission held that an amount for proportionate annual leave was payable – where the appellant appealed to the Industrial Court of Queensland – where the appeal was unsuccessful – whether costs ought to be ordered against the appellant

Industrial Relations Act 2016, s 545

CASES:

McIlroy-Ranga v Torres Strait Island Regional Council (No 2) [2023] QIRC 033, related
Torres Strait Island Regional Council v McIlroy-Ranga [2023] ICQ 018, related

COUNSEL:

C Mossman (Solicitor) for the appellant

No submissions received for the respondent

SOLICITORS:

Wotton + Kearney Lawyers for the appellant

Queensland Services, Industrial Union of Employees for the respondent

1. The appellant, the Torres Strait Island Regional Council (‘the Council’), is a local authority which employed the respondent, Luke Ashley McIlroy-Ranga.

2. Upon termination of his employment with the Council, Mr McIlroy-Ranga asserted a right to a proportion of his annual leave.  The Council disputed that claim.

3. The Queensland Industrial Relations Commission (QIRC) found that proportionate annual leave was due to Mr McIlroy-Ranga.[1]

   [1]McIlroy-Ranga v Torres Strait Island Regional Council (No 2) [2023] QIRC 033.

4. The Council appealed the decision of the QIRC but that appeal was dismissed[2] and orders were made as follows:

   “1.The appeal is dismissed.

   2.The parties shall exchange submissions on costs by 4.00 pm on 28 August 2023.

   3.The parties shall exchange reply submissions on costs by 4.00 pm on 4 September 2023.

   4.Each party shall have leave to file and serve an application for leave to make submissions on costs by 4.00 pm on 18 September 2023.

   5.In the absence of any application being filed by 4.00 pm on 18 September 2023, the question of costs will be decided on the written submissions without further oral hearing.”

   [2]Torres Strait Island Regional Council v McIlroy-Ranga [2023] ICQ 018.

5. On 24 August 2023, written submissions on costs were filed by the Council.  The Council submits that there should be no order as to costs.  Mr McIlroy-Ranga has not filed submissions on costs.

6. No party has made application for leave to make oral submissions on costs. 

7. Therefore, the question of costs ought to be determined upon consideration of the written submissions that have been received from the Council.

8. Section 545 of the Industrial Relations Act 2016 (IR Act) empowers this Court and the QIRC to make orders as to costs of proceedings. That section provides, relevantly here:

   “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 commission is satisfied—

   (i)the party made the application or responded to the application vexatiously or without reasonable cause; or

   (ii)it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or …”

9. The Council’s appeal was dismissed upon a determination of the proper construction of various provisions of the IR Act.  While the construction advanced by the Council was not accepted:

   1.there is no provision in the IR Act which expressly determined the question that was raised on the appeal;

   2.the argument advanced by the Council was sensible although not ultimately correct;

   3.the appeal was not made vexatiously or without reasonable cause;

   4.extensive argument was heard on the appeal and it could not be said to be reasonably apparent to the Council that the appeal had no reasonable prospect of success.

10. In the circumstances, there should be no order as to costs of the appeal.

    Order

11. There be no order as to costs of the appeal.