Industrial Court of Queensland s5

[Extract from Queensland Government Industrial Gazette, dated 7 July, 2006, Vol. 182, No 11, pages 317-318]

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 335 - application for costs

Adam John Low AND BBC Hardware Limited (No. 2) (C/2006/31)

PRESIDENT HALL 28 June 2006 DECISION

By a decision of 14 June 2006, now reported at 182 QGIG 204, this Court dismissed an appeal against a sentence imposed by an Industrial Magistrate on a prosecution under the Workplace Health and Safety Act 1995. The respondent now seeks costs.

The application for costs is made pursuant to s. 335 of the Industrial Relations Act 1999. Mr McPherson for the respondent very properly acknowledges that the appeal was not made vexatiously. The case is put squarely on the basis that the appellant's case was one immediately recognisable as doomed to failure and, for that reason, the appeal should be held to have been made 'without reasonable cause'. I am unable to accept that the case argued for the appellant merits the description which the respondent now seeks to apply to it. The submission that the Industrial Magistrate misapplied the decision of this Court in Peter Vincent Twigg v Hughes and Hessey Pty Ltd (2005) 180 QGIG 924 was unsuccessful, and in my view deservedly unsuccessful. But Peter Vincent Twigg v Hughes and Hessey Pty Ltd, ibid, is a decision which had not previously been revisited in this Court. In circumstances in which the proceedings were penal, I am not satisfied that the arguments developed in the appellant's written submissions were so clearly misconceived that they should not have been put. Additionally, the quantum of the fine imposed was attacked on the basis that it was "manifestly inadequate". Characterisation of the quantum of the fine as "manifestly inadequate", rather than as a quantum about which reasonable persons may differ, has much to do with the eye of the beholder. Here, the fine selected was at the very base of the "range". It was seventy-five percent of the top of the "range". The "range" had been developed in cases about the safety of workers/employees. This case concerned the safety of a customer. I can understand why conscientious practitioners would accept instructions to challenge such a fine. Whilst the Court will not shrink from the award of costs in an appropriate case, see e.g. Kickbusch v Visy Board Proprietary Ltd (2004) 175 QGIG 1373, the Court has always declined overly to scrutinize the conduct of an appellant's case in an attempt to find not failure but imperfection and inadequacy, see e.g. Otto v Boxgrove Pastoral Co Pty Ltd (2002) 171 QGIG 138, Bow Park Pty Ltd v Williams (2003) 175 QGIG 18, Chandler v Quality Bakers Australia Ltd (2004) 175 QGIG 1123 and Honeycombes Townsville Pty Ltd v Williams (2004) 177 QGIG 589.

In my view the application for costs must be dismissed and I do dismiss the application for costs.

Dated 28 June 2006.

D. R. HALL, President. Appearances: Mr S. Sapsford and with him Mr P. Matthews of Division of Released: 28 June 2006 Workplace Health and Safety for the appellant. Mr J. McPherson of CLS Lawyers for the respondent.

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