Industrial Relations Commission of New South Wales CITATION : M & CCYP [2002] NSWIRComm 180 APPLICANT PARTIES : Mr "M" RESPONDENT Commission for Children & Young People FILE NUMBER: IRC 1945 of 2001 CORAM: Harrison DP CATCHWORDS : Application for costs - absence of jurisdiction to order costs - application dismissed. LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Industrial Relations Act 1996 HEARING DATES: 07/25/2002 EXTEMPORE JUDGMENT DATE : 07/31/2002 APPLICANT Mr T Hetherington, Solicitor LEGAL REPRESENTATIVES: of Whitelaw McDonald RESPONDENT Mr J Connors of Counsel JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 31 July 2002 Matter No IRC 1945 of 2001 M AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 DECISION RE COSTS [2002] NSWIRComm 180 1 A decision was issued in the substantive proceedings of this matter on 6 March 2002 (NSWIRComm 29) which declared that the Child Protection (Prohibited Employment) Act ("CP Act") does not apply to the applicant in respect to two specified offences. The applicant now makes application for costs. 2 The application for costs was subject to proceedings on 25 July 2002. Mr T Hetherington, solicitor of Whitelaw McDonald, appeared on behalf of the applicant. Mr J Connors of Counsel appeared on behalf of the Commission for Children and Young People (CCYP). 3 Mr Hetherington pressed an argument founded on equity and fairness, submitting that the applicant had been put to significant expense and inconvenience in the proceedings, which were ultimately successful for him. 4 The CP Act confers jurisdiction upon this Commission and the Administrative Decisions Tribunal to make orders declaring that the CP Act does not apply to an applicant. The relevant provisions of the CP Act are: 9 IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, (b) the person was such an employee who was dismissed from that employment under this Act. … … (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 5 Mr Hetherington relied upon s9(11) of the CP Act which specifically prohibits an Order of Costs being made by the Administrative Decisions Tribunal. Mr Hetherington argued that the omission of the Industrial Relations Commission ought be taken as authority for costs to be ordered in matters prosecuted here. Mr Hetherington submitted that the legislation should be interpreted and applied as if Parliament intended that costs be available in proceedings before this Commission. 6 Mr Connors submitted that consideration of merit does not arise as there is no jurisdiction to award costs in this matter. 7 Mr Connors relied on s181(2) of the Industrial Relations Act 1996 ("IR Act") which provides: (2) However, the Commission when it is not in court session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. 8 Mr Connors noted that when hearing applications pursuant to the CP Act, the Commission is not sitting in Court Session; and accordingly, its costs jurisdictions is limited to that described by s181(2) of the IR Act. 9 Mr Hetherington contended that acceptance of the arguments put by Mr Connors resulted in an immunity from an order of costs against the CCYP in matters arising pursuant to s9 of the CP Act. Mr Hetherington submitted that this was unfair and unjust as the CCYP, in mounting a vigorous though unwarranted opposition to an applicant, caused the applicant to incur substantial costs whilst itself immune from the consequences of its own decisions. 10 Mr Hetherington submitted that Parliament could not have intended such an unjust situation, evidence of which is the omission of reference to the Industrial Relations Commission in s9(11) of the CP Act. 11 Mr Connors submitted that there was no need to refer to the Industrial Relations Commission in s9(11) of the CP Act as the extent of costs jurisdiction was effectively limited to that described for the Administrative Decisions Tribunal in s9(11) by s181(2) of the IR Act. 12 An ex tempore decision was issued in the following terms: HIS HONOUR: I am compelled to accept the submissions put by Mr Connors. As meritorious as the submissions as to substance might be, section 181.2 acts to prohibit an order of costs. Whether that unfairly, or fairly, or reflects Parliament's intention or not, to provide an immunity to the Commission for children and young people, it does. I do not regard the disenabling provisions of the Child Protection Act to be able to be read so as to enable this Commission to do something that the Industrial Relations Act does not allow it to do. I draw the parties attention to the definitions and structure of the Commission in Court Session as compared to the Commission, in Part 3 of the Industrial Relations Act, from sections 151 onwards, which are instructive in consideration of those powers reserved to the Commission in Court Session the application of section 181.1 and application of section 181.2 and 181.3. The application for costs is refused. 13 Matter No IRC 1945 of 2001 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.