Dorman v State of Queensland (Queensland Health)
[2023] QIRC 335
•23 November 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Dorman v State of Queensland (Queensland Health) [2023] QIRC 335 |
PARTIES: | Dorman, Delma v |
CASE NO: | TD/2022/197 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 23 November 2023 |
| HEARING DATES: | 17 March 2023 and 23 May 2023 |
MEMBER: HEARD AT: | Dwyer IC Brisbane |
ORDER: | 1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matter TD/2022/197 are discontinued. 2. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the applicant in matter TD/2022/197, Mr Gareth Rogers, must pay the Respondent's costs in the amount of $9,062.00 within 14 days of the date of this order. 3. Direct the Industrial Registrar forward a copy of this decision to the Legal Services Commissioner for her consideration. |
| CATCHWORDS: | INDUSTRIAL LAW – DISMISSAL – APPLICATION FOR REINSTATEMENT – where the applicant filed an application for reinstatement after she was dismissed for non-compliance with the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements – where the applicant requested to discontinue proceedings on the weekend before the hearing of the matter – where request to discontinue proceedings objected to by respondent – where the respondent has applied for its costs – consideration of whether to award costs against the applicant or the applicant’s representative |
LEGISLATION: CASES: | Australian Solicitors’ Conduct Rules r 3, r 4, r 17 Fair Work Act 2009 (Cth) s 401 Health Employment Directive 12/21 Employee COVID-19 vaccination requirements Industrial Relations (Tribunals) Rules 2011 (Qld) r 13A, r 68, r 70 Industrial Relations Act 2016 (Qld) s 317, s 428, s 429, s 531, s 541, s 545 Legal Profession Act 2007 (Qld) s 5, s 6, ch. 4 Workplace Relations Act 1996 (Cth) s 170CJ Attorney General v Wentworth (1988) 14 NSWLR 481 Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436 Golding v Sippel and Laundry Chute Pty Ltd [2021] ICQ 014 Ipswich City Council v Wendt & Ors [2020] QIRC 164 Kelsey v Logan City Council & Ors [2021] ICQ 011 Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2011] FWA 651 Latoudis v Casey (1990) 170 CLR 534 Marriage v Devine Ltd (2005) 178 QGIG 118 Sharkey v Life Without Barriers [2019] FWCFB 7644. Veal v Sundance Marine Pty Ltd [2013] FWCFB 8960 Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187 |
| APPEARANCES: | The applicant appeared on her own behalf Mr G. Rogers (with leave to be heard) appeared on his own behalf Mr L. Grant, Counsel, Crown Law for the respondent |
Reasons for Decision
Introduction
Ms Delma Dorman was employed by the State of Queensland (Queensland Health) ('the Respondent') from 1 January 2007 until she was dismissed on 20 July 2022. At the time of her dismissal, Ms Dorman was employed as an Indigenous Community Liaison Officer at the Caboolture Hospital within the Metro North Hospital and Health Service.
Ms Dorman was dismissed as a result of her failure to comply with the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the directive'), in that she failed to receive a first and second dose of a COVID-19 at the times prescribed by the directive. Following the typically extensive show cause process, Ms Dorman's employment was terminated.
On 25 August 2022, Ms Dorman filed in the Industrial Registry a Form 12 - Application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('IR Act') ('the proceedings').[1]
[1] An attempt was made to file a Form 12 – Application for reinstatement earlier, but it was rejected by the Industrial Registry because it did not comply with r 13A(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rule').
Following the series of events that are detailed below, Ms Dorman subsequently requested to discontinue the proceedings. The Respondent did not consent to Ms Dorman's request, except in circumstances where its costs were paid. Consequently, the matter proceeded to hearing in respect of the question of costs.
An issue in the costs proceedings was whether Ms Dorman's representative ought to pay the Respondent's costs. In the circumstances, the summary of relevant facts set out below includes specific attention to matters relevant to the Commission's consideration of costs orders against representatives.
Background
Ms Dorman's representation
Ms Dorman was initially represented by Ms Natasha Misko, an agent who described herself as a 'senior human rights advocate' from an organisation called 'Human Rights Advocates Australia'.
On or about 8 August 2022, Ms Misko attempted to file in the Industrial Registry an (unsigned) Form 12 – Application for Reinstatement. Given the application was unsigned (and then later incorrectly signed by Ms Dorman), it was not accepted for filing as it did not comply with the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').[2]
[2] The Rules (n 1) r 13A(1).
The deficiencies in the application were eventually remedied by Ms Misko on 25 August 2022. By this stage, given the termination of Ms Dorman's employment occurred on 20 July 2022, the application was filed outside the statutory time limit prescribed by 317(2)(a) of the IR Act. The application for reinstatement ought to have been filed on or before 10 August 2022.[3]
[3] Industrial Relations Act 2016 (Qld) ('the IR Act') s 317(2)(a).
The application filed by Ms Dorman on 25 August 2022 asserts inter alia that:
· She was terminated for 'not complying with a direction to be part of a clinical trial';
· Given 'the lack of efficacy and overwhelming data reflected by TGA and ABS indicating serious side effects, including death, it is unreasonable to terminate me for not participating in the phase 3 trial'; and
· 'No GP is able to vaccinate me given I am being coerced by my employer witch (sic) negates consent under the Constitution'.
The matter was listed for a mention at 9:30am on 27 September 2022. At 8:28am that morning, the Industrial Registry received from Mr Gareth Rogers of 'Reignite Democracy Australia' a Form 36 – Notice of change of lawyer or agent. The Industrial Registry did not accept the form for filing as it was unsigned and therefore did not comply with the Rules.[4]
[4] The Rules (n 1) r 13A(1).
At the mention, Ms Misko (who appeared for Ms Dorman) was at pains to ensure the Commission understood that she was handing carriage of the matter over to Mr Rogers, and that she would have no further conduct of the matter on behalf of Ms Dorman.[5] Additionally, notwithstanding her oral representations, Ms Misko had not attended to filing a Form 35 – Notice of withdrawal of appointment of lawyer or agent.
[5] T 1-3, ll 23-35.
As Ms Misko was still Ms Dorman's representative on record, she was informed at the mention that the Respondent wished to press a jurisdictional objection, namely, that the application was filed outside of the statutory time limit prescribed by 317(2)(a) of the IR Act.[6]
[6] T 1-2, ll 24-34.
In addition to this objection, Ms Misko was also informed by the Commission that her client would be required to address a preliminary issue raised at the instigation of the Commission, namely, whether further proceedings were necessary or desirable in the public interest within the meaning contemplated by s 541(b)(ii) of the IR Act.[7]
[7] T 1-4, ll 11-17.
By Directions Order dated 27 September 2022, the parties were ordered to file submissions addressing these two preliminary issues. A copy of the Directions Order was also sent to Mr Rogers in anticipation of him assuming the role of Ms Dorman's representative.
On 30 September 2022, after these directions were issued, Mr Rogers filed in the Industrial Registry a properly executed Form 36 – Notice of change of lawyer or agent. Mr Rogers then became Ms Dorman's representative on record.
First submissions filed in response to the Directions Order
The submissions originally filed by Mr Rogers in accordance with the Commission's Directions Order were filed three days late on 28 October 2022 (first contravention). Further, a perusal of its contents gave rise to a number of immediate concerns for the Commission.
Firstly, the submissions completely failed to include any submission addressing the jurisdictional barrier of non-compliance with the prescribed time limit for filing of the application.
Secondly, the submissions purportedly addressing the public interest issue appeared to be an amalgam of template submissions of a generic nature that made broad 'anti-vaccine' statements, but also (significantly), they made no reference to the particulars relied on by Ms Dorman in her application. Indeed, the submissions made no material reference to Ms Dorman or her application at all.
Additionally, the submissions made no reference to any of the numerous binding or influential Queensland authorities in respect of non-compliance by employees with vaccine mandates. Further, the submissions did not make any reference to authorities or other considerations relevant to the exercise of the discretion pursuant to s 541(b)(ii) of the IR Act.
The submissions were, in simple terms, woefully incompetent.
The matter was subsequently listed for further mention on 4 November 2022. The Commission's intention for the listing was to bring these concerns to Mr Rogers' attention. Mr Rogers and Ms Dorman were directed to attend. Without notice or leave to be excused, neither of them did (second contravention). Instead, Ms Nicole Kuth was in attendance by telephone (without leave) (third contravention) on behalf of Mr Rogers. Ms Kuth holds herself out as a solicitor with Reignite Democracy Australia.[8]
[8] Statement of Nicole Kuth filed 20 February 2023, para. 3.
It was immediately apparent to the Commission that Ms Kuth had little to no understanding of Ms Dorman's matter. Nevertheless, the mention proceeded. Ms Kuth was expressly directed to inform Mr Rogers that the submissions filed were so deficient and misconceived that, if the matter proceeded further, the Commission was very much open to a personal costs order against him, should one be sought pursuant to s 545(2)(b) of the IR Act.[9]
[9] T 1-3, ll 21-46.
Amended submissions
On 10 November 2022, Mr Rogers filed another set of submissions without leave of the Commission or consent from the Respondent which (presumably) was an attempt to address the matters raised at the mention on 4 November 2022. They absolutely did not.
Apart from minor alterations to the opening paragraphs that (unsuccessfully) attempted to address the objection in respect of the application having been filed outside of the statutory time limit prescribed by s 317(2) of the IR Act, the submissions remained largely identical to the earlier submissions filed i.e. they were template anti-vaccine submissions that did not address any binding or influential Queensland decisions or the unique particulars of Ms Dorman's claim.
Accordingly, the matter was (again) listed for mention to address the filing of submissions without leave which now purported (but wholly failed) to address the deficiencies of the earlier submissions. The listing notice required the attendance of Mr Rogers and Ms Dorman at the further mention.
The matter proceeded to a further mention on 15 November 2022. On this occasion, Mr Rogers appeared (without seeking leave) by telephone (fourth contravention). Ms Dorman failed to attend as directed (fifth contravention).
Mr Rogers was invited to explain the unsolicited filing of amended submissions without leave. The most generous interpretation of his response is that either Ms Kuth had failed to properly communicate the comments that the Commission had made previously about the earlier submissions, or that he had failed to understand her, or both.
It therefore became necessary to reiterate to Mr Rogers the concerns held by the Commission regarding the inadequacy of the filed submissions in so far as they failed to address the relevant considerations pursuant to s 541 of the IR Act.
It was also necessary to reiterate the risk of a personal costs order to Mr Rogers. At that point in the proceedings, when the Commission began to put Mr Rogers on notice of these matters, he abruptly interjected and said:[10]
MR ROGERS: That's never going to happen. I won't be paying those costs and we'll simply appeal the matter Commissioner. If you don't want to do your job, we'll get someone else to do it.
[10] T 1-4, ll 41-43.
Mr Rogers was cautioned about this disrespectful language.[11] Mr Rogers was placed on clear notice at this mention that, because of his thoroughly misconceived submissions, he was at risk of being personally the subject of a costs order.
[11] T T 1-8, ll 10-15. That caution was firmly reiterated when it was subsequently revealed that Mr Rogers is apparently admitted to the legal profession and was intending on obtaining a practising certificate imminently. See also the Legal Profession Act 2007 (Qld) ('LPA') s 5(1).
Additionally, in respect of the disposition of the amended submissions filed without leave on 10 November 2022, it was noted that the Respondent had yet to file their response submissions. Following observations from the Commission as to the lack of prejudice, there was an appropriate consent from the Respondent to a (retrospective) grant of leave for Mr Rogers to file his amended submission.
Notwithstanding the Commission's express caution given to Mr Rogers regarding the misconceived nature of the amended submission and his personal costs risk, there was no attempt by Mr Rogers to seek leave to further amend the submissions or to discontinue the application.
The Respondent filed their submissions in response on the preliminary matters on 25 November 2022.
Listing for Hearing
Once all parties had filed submissions in accordance with the directions, the matter was listed for mention on 8 December 2022. The parties were asked to indicate whether they would like an opportunity to appear before the Commission to speak to their submissions and answer any questions the Commission may have. The following exchange occurred:[12]
[12] T 1-2, ll 23-47.
COMMISSIONER: ... The next thing I was going to ask the parties is whether they had a desire for me to list the matter for oral submissions. I'm in the parties' hands, although I'll make some comments about it once I've heard the parties' views. Mr Rogers, did you have a preference with respect to whether we have oral submissions in this matter? So what's anticipated is that the party would speak to the submissions that have been filed and would be in a position to answer questions directed at them from the bench.
MR ROGERS: Yes. My preference would be that – well, sorry. I would be in a position to - - -
COMMISSIONER: Or the – I should say the alternative – sorry to cut across you, Mr Rogers, but I should say the alternative - - -
MR ROGERS: No, not a problem.
COMMISSIONER: The alternative is I just – can decide the matter on the papers based on the written submissions from the parties.
MR ROGERS: My preference would be for the opportunity to answer questions from yourself, Commissioner.
COMMISSIONER: Yes.
MR ROGERS: That is my preference.
(Emphasis added)
The Respondent did not object to Mr Rogers' preference for a hearing, though it did not expressly press for one either. Accordingly, the matter was listed for hearing on 30 January 2023.
Further, Mr Rogers informed the Commission that he now held a practising certificate.[13]
[13] T 1-3, ll 45-57. See also the LPA (n 11) s 6(1).
Attempt to discontinue proceedings
On Friday 27 January 2023 at 10:54am (the last business day before the scheduled hearing), the Industrial Registry received the following correspondence from Mr Rogers via email:
Good morning Registry,
I am writing in relation to the Hearing scheduled for 10am on Monday which requires Delma to attend in person at Level 21 66 Eagle Street Brisbane.
Delma has recently commenced work with a new employer and has advised me that taking annual leave on Monday to attend in person will be difficult due to current work requirements and for financial reasons. It is kindly requested that Delma is excused from attending the hearing on the basis that:
1.I will be attending in person as her legal representative; and
2.the material before the commission is limited to two sets of written submissions with supporting evidence that does not contain any disputed facts, therefore it is unlikely that Delma will need to provide evidence at the hearing or be cross-examined.
If this is not acceptable to the Commissioner, please let me know so Delma can make the necessary arrangements in order to attend in person.
(Emphasis added)
Correspondence was issued by the Industrial Registry shortly thereafter advising Mr Rogers that the Commission would require Ms Dorman to attend the hearing in person.
On Saturday 28 January 2023, without notice to the Respondent, Mr Rogers attempted to electronically file in the Industrial Registry and serve on the Respondent a:
1. Form 27 – Request to discontinue proceeding; and
2. Form 35 – Notice of withdrawal of appointment of lawyer or agent.
On Sunday 29 January 2023, Crown Law (on behalf the Respondent) emailed the Industrial Registry objecting to the requested discontinuance of the matter pursuant to r 68(3) of the Rules and submitted that the matter should proceed on the papers in lieu of a hearing. Alternatively, the Respondent requested that it be heard on why the Commission should discontinue the proceedings on a term that the Respondent's costs are paid by either Ms Dorman or Mr Rogers pursuant to ss 545(2)(a) or 545(2)(b) of the IR Act respectively.
On Monday 30 January 2023, having reviewed the correspondence received over the preceding weekend, the Commission determined to vacate the scheduled hearing and substitute it with a mention of the matter.
At that mention, having been informed the Commission was minded to allow a discontinuance of the application subject to costs being considered, the Respondent confirmed its (oral) application in respect of payment of its costs by Ms Dorman or Mr Rogers ('the costs proceedings').[14]
[14] T 1-2, ll 13-18.
Directions were made for the filing of submissions on costs. It was initially anticipated that Mr Rogers would continue to act for Ms Dorman in the costs proceedings.
The matter was urgently mentioned again the next day on 31 January 2023 at the instigation of the Commission. Upon reflection, the Commission raised with the parties the appropriateness of Mr Rogers representing Ms Dorman in respect of the costs proceedings. In circumstances where the issue was whether Ms Dorman or Mr Rogers should be liable for the Respondent's costs, there was an unavoidable conflict of interest. Consequently, all parties accepted that Mr Rogers ought not act for Ms Dorman in the costs proceedings.
Mr Rogers and Ms Dorman were then directed to separately file submissions with respect to costs. A further mention of the matter was scheduled for 20 February 2023. It is important to note here that from this juncture, Mr Rogers was not a ‘representative’ for the purposes of the IR Act in the costs proceedings.[15]
[15] Section 539(b)(v) of the Act.
Costs proceedings
Subject to an extension granted to each party, the Respondent and Ms Dorman filed their submissions in accordance with the Commission's orders. Mr Rogers did not comply (sixth contravention).
Relevantly, in his email seeking an extension for filing on 15 February 2023, Mr Rogers did not foreshadow any difficulties that might further impede his compliance once an extension was granted. Mr Rogers' request for an extension until 20 February 2023 was granted.
On 20 February 2023, Mr Rogers filed two (unsworn) statements. He did not file submissions as ordered. Instead, Mr Rogers sent an email to the Industrial Registry that relevantly said:
I note that I have not prepared written submissions in response to the written submissions received from the Respondent. This is due to time constraints and other commitments I have had to attend to during the last two weeks. I intend to make oral submissions on the day of the hearing directly addressing the matters raised by the Respondent regarding the application of section 545(2)(b) of the IR Act. If the Commission would prefer, I can provide written submissions on these matters within 48 hours. This can be discussed further at the Mention today at 1:30pm.
Fortunately, there was a pre-scheduled mention of the matter on 20 February 2023. Had there not been, Mr Rogers' failure to file submissions would have prompted one. Mr Rogers' non-compliance with the directions order was addressed with him and he was directed to file written submissions with respect to costs by 22 February 2023. Mr Rogers complied with this direction.
The costs proceeding proceeded to hearing on 17 March 2023. Ms Dorman gave her evidence during the first part of the proceedings. Relevantly, Ms Dorman was cross examined by Counsel for the Respondent and by Mr Rogers. The relevant potions of her evidence are discussed below.
The Crown also required Mr Rogers for cross examination.
Before Mr Rogers was required to give evidence, he sought a short adjournment. At that juncture in the proceedings, the Commission took the opportunity to share some preliminary views about Ms Dorman's evidence with Mr Rogers. In short, Mr Rogers was informed that, having heard Ms Dorman's evidence, the Commission was satisfied inter alia that Ms Dorman:
· appeared to have had no knowledge of the jurisdictional objections raised at the outset of the proceedings;[16]
· had no understanding of the submissions filed on her behalf; [17]
· had never seen the submissions filed on her behalf; [18]
· was not aware that her application was in peril of being dismissed;[19]
· was not aware of the costs risk;[20] and
· apparently did not provide any instruction to Mr Rogers to have the matter proceed to a hearing on 30 January 2023.[21]
[16] T 1-21, ll 20-47.
[17] T 1-21, ll 20-47.
[18] T 1-22, ll 25-45.
[19] T 1-26, ll 25-30.
[20] T 1-26, ll 40-47.
[21] T 1-24 to T 1-27.
Before commencing the short adjournment that Mr Rogers had requested, he was cautioned by the Commission that, if its preliminary conclusions about Ms Dorman's evidence became final conclusions, then any decision in the matter would likely reflect very poorly on him professionally. Mr Rogers was invited to reflect on these matters during the brief adjournment.[22]
[22] T 1-44, ll 40 - 48.
When the matter resumed, Counsel for the Respondent informed the Commission that the parties had reached an 'in principle' agreement to resolve the costs dispute. Mr Rogers confirmed this.[23] The matter was adjourned pending completion of settlement. As a consequence of this development, Mr Rogers was not required to give evidence about his conduct of the matter.
[23] T 1 – 47 – T 1 - 48.
Failure to settle
On 24 March 2023, Crown Law emailed the Industrial Registry on behalf of the Respondent and advised that it had provided Mr Rogers with a settlement agreement for his consideration but that it had not received any response from him.
On 27 March 2023, Mr Rogers emailed the Industrial Registry and Crown Law apologising for the delay in his response and further saying:
Agreeing to settle would be an admission of wrongdoing in circumstances where no such wrongdoing took place therefore I am unable to settle this matter.
Resumed costs hearing
After consultation with the parties about a suitable date, the costs proceeding was listed for resumed hearing on 23 May 2023. Mr Rogers indicated he would 'work around' the parties with respect to a suitable date. The parties were directed to attend the hearing in person. A listing notice was sent to Mr Rogers on 5 April 2023.
Crown Law attended the hearing on behalf of the Respondent as directed. Ms Dorman attended the hearing as directed.
Mr Rogers failed to attend (seventh contravention).
From approximately 10:00am on 23 May 2023 when it became apparent that Mr Rogers was absent from the hearing, two attempts were made to contact him by telephone. Both of those calls were diverted to message bank.
Before proceeding further, the Commission ensured that the email address used to issue the listing notice to Mr Rogers was correct. It was. In all of those circumstances the Commission proceeded in Mr Rogers' absence.
Given the only evidence left to be presented in the costs proceeding was that of Mr Rogers, and given he had filed a statement, it was determined to deal with the remainder of the matter on the papers. Crown Law were directed to file material informing the Commission of the quantum of costs incurred in the proceedings.
Following final adjournment of the hearing, an email was sent to the parties (including Mr Rogers) confirming the remainder of matter would be dealt with on the papers. In particular, the email informed the parties that the statement of Mr Rogers that had been filed on 15 March 2023 would become Exhibit 3 in the proceedings subject to any objections from any party.
Mr Rogers replied to the email after 1:00pm on 23 May 2023. He informed the Industrial Registry that he had made an error by noting the listing in his diary for 25 May 2023. His email confirmed he was aware of the proposal to proceed on the papers and he did not object to this.
On 2 June 2023, Crown Law responded. They did not object to the matter proceeding on the papers but indicated that, in the event that Mr Rogers statement filed on 15 March 2023 was accepted into evidence, the Respondent should not be taken to accept the truth of the matters contained within it.
On 4 July 2023, Crown Law filed an affidavit of Ms Rachel Maynard, Principal Lawyer at Crown Law ('the affidavit'). The affidavit sets out inter alia particulars of the costs incurred by the Respondent in the proceedings and was filed in response to a request from the Commission made at the hearing on 23 May 2023. The affidavit also contained certain information regarding the date upon which Mr Rogers obtained his practising certificate.
On 5 July 2023, Mr Rogers emailed the Industrial Registry seeking leave to reply to the matters contained in the affidavit. Mr Rogers was given leave to file a submission by 4:00pm on 14 July 2023 addressing the quantum of costs and details about his practising certificate only.
No submission was filed by Mr Rogers on 14 July 2023 as directed (eighth contravention).
On Saturday 15 July 2023 at 10:22am, Mr Rogers emailed the Industrial Registry. The email contained inter alia what appeared to be Mr Rogers' formal response to the quantum of costs claimed by the Respondent. The email contains a statement to the effect that it can be 'properly considered as submissions to the Commission' and then goes on to offer a wholly illogical explanation for why Mr Rogers elected not to respond to the affidavit with his own sworn testimony.
The Commission's power to award costs
Unless an application is made for costs, parties must bear their own costs in proceedings before the Industrial Court or the Commission.[24] To avoid confusion, it ought to be made clear that the Commission is not a 'no costs jurisdiction'. The Commission is a discretionary costs jurisdiction, and any party who incurs legal costs in the conduct of proceedings can legitimately anticipate that they might recover those costs in the circumstances prescribed by the IR Act.
[24] IR Act (n 3) s 545(1).
Section 545 of the IR Act relevantly provides:
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
(b)a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred—
(i)because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or
(ii)because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
(3) The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.
(Emphasis added)
It is plainly within the Commission's power to make orders for costs against a party to the proceeding or a representative of a party to the proceeding.
Section 545(2)(a) – Costs order against a party to the proceeding
In Kelsey v Logan City Council & Ors,[25] His Honour Davis J, summarised the general test used to determine whether the Commission's discretion to award costs against a party ought to be enlivened:
[25] [2021] ICQ 011. Note – while His Honour's order was displaced by the Court of Appeal in Kelsey v Logan City Council & Ors [2022] QCA 238, the commentary on costs was not disturbed.
[25] Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:
(a)The starting point is that each party bears their own costs.
(b)A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
(c)The assessment of “reasonable cause” in s 545(2)(a)(i) is:
(i)an objective assessment; and
(ii)made considering the facts existing as at the time of the institutions of the proceedings, here the appeal.
(d)Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.
(Emphasis added)
In Dawson v State of Queensland (Department of the Premier and Cabinet) ('Dawson'),[26] Vice President O'Connor said the following in respect of s 545(2)(a) of the IR Act:
[10] For the purposes of s 545(2)(a)(i), whether an application is commenced vexatiously or without reasonable cause is to be assessed objectively. The test is to be applied when the application is made.
[11] The same objective assessment applies in respect of s 545(2)(a)(ii) as to whether it would have been reasonably apparent to a party that their claim had no reasonable prospects of success. This limb is broader than s 545(2)(a)(i) as it can be triggered at a time subsequent to the filing of an application.
(Citations omitted)
[26] [2021] QIRC 436 ('Dawson').
In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[27] Vice President O'Connor comprehensively outlined the relevant principles in respect of an application pursuant to s 545 of the IR Act:
[27] [2020] QIRC 187 ('Watpac').
The test for “vexatiously or without reasonable cause”
[12] The principles to be applied in applications such as this were considered by Martin J in Wanninayake v State of Queensland (Department of Natural Resources and Mines). The case concerned the predecessor of s 545 – s 335 of the Industrial Relations Act 1999. In that case his Honour wrote:
An application has been made by the respondent for an order under s 335 of the Industrial Relations Act 1999. That Act permits the court to make an order that an unsuccessful applicant pay costs in circumstances where an application was made vexatiously or without reasonable cause.
It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her. Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her, but that is not a reason to deny a successful party its costs. The appeal was never going to succeed. It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.
Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded. It follows that the application was made without reasonable cause, and so the jurisdiction is enlivened.
[13] The Applicant referred the Commission to the decision of State of Queensland (South West Hospital and Health Service) v Crews-Bradley, which considered s 335(1)(a) of the Industrial Relations Act 1999 (the IR Act 1999), the equivalent to s 545(2) of the IR Act 2016:
The phrase 'vexatiously or without reasonable cause' is to be read disjunctively and not in a composite way.
It is not my understanding of the submissions of the applicant that they contend the respondent, in bringing the application, has acted 'vexatiously'; that is, with the intention of annoying or embarrassing the applicant.
In determining the expression 'without reasonable cause' in s 335(1) of the IR Act, it cannot be said that a party has made an application 'without reasonable cause', within the meaning of s 335(1) of the IR Act simply because the applicant's argument proves unsuccessful.
In considering the phrase 'without reasonable cause' Wilcox J in Kanan v Australian Postal and Telecommunications Union, wrote:
'It seems to me that one way of testing whether a proceeding is instituted "'without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.'
In practice, the test used to determine 'without reasonable cause' is not, in many ways, dissimilar to that applied in determining a summary judgment application. That test has been variously expressed, including that a case is 'manifestly groundless' or is 'so obviously untenable that it cannot possibly succeed'.
Martin J in Dominic Burke v Simon Blackwood (Workers' Compensation Regulator) in dealing with 'without reasonable cause' expressed the view that where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event.
[14] In MIM Holdings Ltd v AMWU, Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
[15] The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.
[16] It is acknowledged that s 545 of the IR Act 2016 preserves s 335 of the IR Act 1999 by providing that a person must bear their own costs in relation to a proceeding unless the court or commission has ordered costs to another party. However, s 545 goes further than s 335 by giving the Commission a discretion in circumstances where a party to the proceeding made the application, or responded to the application, when there was no reasonable prospect of success.
[17] As a matter of ordinary expression, the words 'reasonable prospects of success' involves weighing up the circumstances of the case to determine whether they are reasonable in the sense that they provide a rational base for a decision to proceed with a matter or, as in this case, whether to respond to the application.
[18] In Keddie & Ors v Stacks/Goudkamp Pty Ltd the New South Wales Court of Appeal was called on to consider a costs application in the context of s 345 of the Legal Profession Act and the obligation of a law practice not to provide legal services unless the claim has reasonable prospects of success.
[19] In considering the phrase "reasonable prospects of success" the Court of Appeal had reference to the reasoning of Barrett J (as his Honour then was) in Degiorgio v Dunn (No 2), where his Honour observed:
... 'without reasonable prospects of success' ... equates its meaning with 'so lacking in merit or substance as to be not fairly arguable'. The concept is one that falls appreciably short of 'likely to succeed'.
[20] Beazley JA (with whom Barrett JA and Sackville AJA agreed) held that the phrase 'without reasonable prospects of success' means 'not fairly arguable' and as to establish 'on the basis of provable facts and a reasonably arguable view of the law that the claim has reasonable prospects of success'.
(Citations omitted)
Section 545(2)(b) – Costs order against a representative
The application of s 545(2)(b) of the IR Act has not been significantly dealt by the Commission. Some assistance on its application can be had from regard to similar provisions in the Fair Work Act 2009 (Cth) ('FW Act').
In terms that are substantially the same as s 545(2)(b) of the IR Act, s 401 of the FW Act relevantly provides:
…
(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:
(a)the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b)of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
(Emphasis added)
While the relevant language is the same, there is an important distinction between s 401 of the FW Act and s 545(2)(b) of the IR Act.
Section 401 of the FW Act relevantly applies to parties who have engaged a lawyer or a paid agent.[28] Throughout the course of the proceedings, Mr Rogers was at pains to ensure the Commission was aware he was representing Ms Dorman on a 'charitable basis' which (presumably) meant he was not charging fees (though no evidence of this was before the Commission). Mr Rogers has also been adamant that he has not acted as a lawyer in the matter until 16 January 2023. For the purposes of costs liability in this matter, these assertions are irrelevant.
[28] Fair Work Act 2009 (Cth) s 401(1)(b).
Unlike s 401 of the FW Act, s 545(2)(b) of the IR Act does not contain any limits on the term 'representative'. That is, there is no restriction in its application to lawyers or paid agents only. It applies to all representatives.
On 30 September 2022, Mr Rogers filed a Form 36 – Notice of change of lawyer or agent that indicates he was either lawyer or agent for Ms Dorman. Accordingly, he falls within the discretion allowed under s 545(2)(b) of the IR Act at any relevant time he was Ms Dorman's representative.
There can be no doubt that Mr Rogers was, until 31 January 2023, Ms Dorman's 'representative' for the purposes of his potential liability for costs pursuant to s 545(2)(b) of the IR Act. But, at the mention held on that date, he was expressly excluded from acting for Ms Dorman thereafter because of the inherent conflict in their positions.
In the circumstances, in so far as any costs order might be contemplated against Mr Rogers in his capacity as a representative, the discretion cannot be informed by consideration of conduct after 30 January 2023.
Respondent's submissions
In accordance with directions issued on 3 February 2023, the parties filed written submissions in respect of costs.
The Respondent opens its submissions by contending that, pursuant to r 68(6) of the Rules, the Commission ought to discontinue the substantive proceedings on terms it considers appropriate, namely that the Respondent's costs of and incidental to the proceedings be paid, either by:
a. Ms Dorman, pursuant to s 545(2)(a)(i) or (ii) of the IR Act; or
b. Mr Rogers, pursuant to s 545(2)(b)(i) or (ii) of the IR Act.
Costs against Ms Dorman
The Respondent submits that the jurisdictional facts identified in both s 545(2)(a)(i) and (ii) of the IR Act are established and, in the circumstances, costs against Ms Dorman are justified.
In relation to s 545(2)(a)(i) of the IR Act, the Respondent submits that the grounds identified in Ms Dorman's application for reinstatement have all been advanced and settled by the Commission. In the circumstances, it is submitted that Ms Dorman's application could not succeed and was made with no reasonable cause.
In relation to s 545(2)(a)(ii) of the IR Act, the Respondent submits that throughout the course of the proceeding, Ms Dorman was provided with adequate information (from both the Respondent and the Commission) that her application was out of time, and the grounds identified in her application for reinstatement i.e. questioning the validity of the directive was a matter that had already been dealt with and determined multiple times by the Commission.
The Respondent therefore submits that it ought to have been reasonably apparent to Ms Dorman that her application could not be pursued on the grounds it relied and had no reasonable prospects of success.
Costs against Mr Rogers
The Respondent acknowledges that the application of s 545(2)(b) of the IR Act has not been explored in depth by the Commission. The Respondent instead points to decisions that have considered similar costs provisions, namely those in the FW Act.[29]
[29] Ibid s 401.
The Respondent refers to Veal v Sundance Marine Pty Ltd ('Veal'),[30] a decision of the Full Bench of the Fair Work Commission which observed that when considering the question of whether it should have been reasonably apparent that a person had no reasonable prospects of success, a higher standard must be applied to a legally qualified individual than that which would apply to an unrepresented party.[31]
[30] [2013] FWCFB 8960 ('Veal').
[31] Ibid [15].
The Respondent submits that it should have been reasonably apparent to Mr Rogers that Ms Dorman had no reasonable prospects of success in circumstances where Mr Rogers:
a. was admitted as a legal practitioner on 27 April 2010 and currently holds a practising certificate;
b. appeared at the mentions of the matter on 15 November 2022 and 8 December 2022 and was put on notice by the Commission of its pessimistic views with respect to Ms Dorman's application; and
c. conceded at the mention of the matter on 31 January 2023 that he agreed that Ms Dorman's application should have been dismissed because it was out of time.[32]
[32] T 1-3, ll 12-17.
The Respondent submits that, as contemplated by s 545(2)(b)(i) of the IR Act, Mr Rogers encouraged Ms Dorman to start, continue or respond to the proceeding.
The Respondent refers to Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café ('Khammaneechan'),[33] where it was held by Richards SDP that encouragement requires a 'positive act by the lawyer or paid agent, not merely an absence of discouragement'. The Respondent submits that Mr Rogers' actions demonstrate positive representations pressing the continuation of the application over the November and December 2022 period.
[33] [2011] FWA 651 ('Khammaneechan') [22].
The Respondent further submits that Mr Rogers' conduct is consistent with an unreasonable act or omission as contemplated by s 545(2)(b)(ii) of the IR Act, in that he:
· pursued the application on grounds that were well settled by the Commission and without contemplation of relevant authorities (none of which were found in favour of the employees);
· defended the out of time objection despite being of the view that the application ought to have been dismissed on that basis; and
· prosecuted the application and requested an oral hearing of the application in the absence of instructions from Ms Dorman.
Ms Dorman's submissions
Ms Dorman filed her submissions in response to the costs proceedings on 20 February 2023.[34] Her submissions are not especially responsive to the matters raised by the Respondent with respect to costs, but they do provide some insight into the conduct of the application generally.
[34] Exhibit 1.
Ms Dorman sets out that she commenced new employment from 12 October 2022. From that time on, Ms Dorman contends that she was unable to attend mentions before the Commission. She also contends that her new role was busy and this left her with no time to check emails. The inference in her submission (which was born out in her evidence) is that she had little meaningful contact with Mr Rogers from 12 October 2022 onwards.[35]
[35] T 1-19 – T 1-27.
Ms Dorman, who is an Indigenous woman, further sets out in her submissions that a relative in Rockhampton became gravely ill on or about 25 November 2022. From this time until her relative passed away on 17 December 2022, she was heavily preoccupied with supporting her family and had no contact with Mr Rogers at all. Following the passing of her relative, Ms Dorman then engaged in a traditional mourning period which eased on or about 15 January 2023.
Ms Dorman says that on 15 January 2023 she checked her emails and noticed an email from Mr Rogers. She describes herself in the submission as having been 'oblivious' of what was happening with her reinstatement application.
In essence, Ms Dorman describes an almost total disengagement with Mr Rogers from 12 October 2022 until 15 January 2023. A number of the factual 'gaps' apparent in Ms Dorman's submission are dealt with in her evidence before the Commission on 17 March 2023 and are discussed below. Relevantly, she was entirely unaware that the Commission had raised a concern about whether the matter ought to be allowed to proceed per s 541 of the IR Act, and that her application had been filed outside the prescribed time limit.
Submissions of Mr Rogers
Mr Rogers filed written submissions on 22 February 2023. Mr Rogers' submissions address each of the elements relevant to the Commission's consideration of whether it ought to award costs pursuant to ss 545(a) and (b) of the IR Act.
Costs against Ms Dorman
In respect of s 545(2)(b)(i) of the IR Act, Mr Rogers submits that it became reasonably apparent to him that Ms Dorman's application had no prospects of success once his preparation for the 30 January 2023 hearing commenced on 27 January 2023.
It can be inferred from Mr Rogers' submissions that, after having commenced preparation for the 30 January 2023 hearing, he came to the realisation that the application had in fact been filed out of time. After Mr Rogers had obtained further instructions from Ms Dorman on 28 January 2023, he proceeded to file in the Industrial Registry a Form 27 – Request to discontinue proceeding and a Form 35 – Notice of withdrawal of appointment of lawyer or agent.
Notwithstanding the above, Mr Rogers submits that he recommended Ms Dorman consider discontinuing the application on several occasions in light of the Commission's preliminary views expressed at the 15 November 2022 mention.
Costs against Mr Rogers
Mr Rogers submits that there is no evidence before the Commission that there was a 'positive act' as contemplated by Khammaneechan that would support the conclusion that Mr Rogers encouraged Ms Dorman to start, continue or respond to the proceeding.
Mr Rogers submits that he had in fact advised Ms Dorman to discontinue the application on a number of occasions. He further contends that the Respondent has made 'baseless accusations about my conduct without any evidence and before they have had an opportunity to review the evidence provided by Ms Kuth, Ms Dorman and myself'.
Mr Rogers submits that the Respondent was not required to undertake any further preparation for the 30 January 2023 hearing after having filed its submissions on 25 November 2022. This submission is made on the basis that the Respondent:
· did not indicate a need to address its submissions orally at the 8 December 2022 mention; and
· was not required to respond to any further material as Mr Rogers did not file any submissions in reply.
In response to the Respondent's submission that Mr Rogers had pursued the application on grounds already settled by the Commission (without any attempt to engage with the authorities and despite caution from the Commission), Mr Rogers submits that none of the authorities referred to address the 'uncontested fact' that manufacturers of COVID-19 vaccines do not claim that their products prevent transmission or contraction of COVID-19. On this point, Mr Rogers submits that there is 'nothing unreasonable about relying upon uncontested facts in an application before the Commission'.
In respect of the application having been filed out of time, Mr Rogers says 'Ms Misko had mislead (sic) me with respect to the filing of the application'. Again, it can be inferred from Mr Rogers' submissions that he had not become aware of the fact that the application was filed out of time until he had begun preparing for the 30 January 2023 hearing on 27 January 2023.
Mr Rogers closes his submissions by refuting the Respondent's submission that he prosecuted the application between November and December without Ms Dorman's instructions. Instead, Mr Rogers contends that he acted in accordance with Ms Dorman's instructions at the time, which were, in Mr Rogers' submission, to continue the application.
Affidavit material filed by Mr Rogers
Mr Rogers filed in the Industrial Registry two unsworn statements on 20 February 2023. Given that the statements were unsworn, Mr Rogers was given permission to file sworn statements on the basis that they were not materially different to those filed on 20 February 2023.[36] He did so on 15 March 2023.[37]
[36] T 1-4, ll 1 – 12.
[37] Exhibit 3.
On 16 March 2023, the Respondent emailed the Industrial Registry, highlighting the fact that each of the sworn statements were non-complaint with the Rules, in that they were not in the approved form,[38] did not include Certificates of Exhibit, and, despite each exceeding 30 pages, were not filed physically in the Industrial Registry.[39]
[38] A Form 20 – Affidavit.
[39] See Practice Direction Number 3 of 2021 – Electronic filing and hard copies of documents.
The Respondent objected to the statement of Ms Kuth. The Commission considered the objection and noted a number of technical and procedural difficulties with the statement of Ms Kuth.[40] Ultimately the statement of Ms Kuth was not admitted but a number of the attachments were able to be admitted via Ms Dorman.[41]
[40] T 1-4 to T 1-6.
[41] T 1-34; Exhibit 2.
The Respondent did not object to the statement of Mr Rogers as he was directed to be in attendance on 17 March 2023 and was required for cross-examination, but reserved the right to make submissions about how the Commission should treat such evidence. The salient portions of the sworn statement of Mr Rogers can be summarised briefly as follows:
· Mr Rogers began practising law in or about January 2023;
· Mr Rogers alleges he was informed by Ms Misko that the (unsigned) application sent to the Industrial Registry on 8 August 2022 was the only application filed;
· On 15 November 2022, Mr Rogers alleges contacted Ms Dorman and recommended that she consider discontinuing her application. Mr Rogers was told by Ms Dorman to 'continue the Application and have the matter heard by the Commission “in the usual manner”';
· By 8 December 2022, Mr Rogers had not been in contact with Ms Dorman. Mr Rogers maintains that he held instructions to 'continue the Application' and requested an oral hearing on that basis;
· On 22 January 2023, Ms Dorman contacted Mr Rogers. Mr Rogers alleges he advised Ms Dorman that she ought to consider discontinuing the application.
· On 27 January 2023, Mr Rogers began reviewing the application in anticipation of the 30 January 2023 hearing and discovered that it had been filed out of time.
· On 28 January 2023, Mr Rogers contacted Ms Dorman and advised her that he could no longer represent her as he had been misled by Ms Misko in respect of the filing of the application. Mr Rogers advised Ms Dorman that she should discontinue the application.
As it transpired, the Respondent did not have the opportunity to cross-examine Mr Rogers on 17 March 2023 or on 23 May 2023. The evidence of Mr Rogers therefore remains untested by the Respondent and they have placed the Commission on notice that they do not accept the matters alleged by Mr Rogers as facts. The Commission is equally conscious that Mr Rogers has not been subject to the scrutiny of cross-examination. The Commission further notes that there are significant matters dealt with by hearsay in Mr Rogers' affidavit.[42]
[42] Exhibit 3, paras. 10, 11 and 29.
Mr Rogers has (twice) missed the opportunity to give sworn evidence in the proceedings. For reasons set out below, the Commission considers that Mr Rogers was the architect of this through two separate, but equally unreasonable acts. Following Mr Rogers' unannounced failure to attend on 23 May 2023 at the resumed cost hearing, the Commission was not prepared to allocate any further time to give Mr Rogers an opportunity that he had twice squandered already.
While Mr Rogers' affidavit was admitted into evidence, the Commission will give it little weight.
Consideration
In any application for costs there are three essential questions that must be addressed:
1. Should the party applying for costs have their costs paid; and if so
2. Who should pay those costs; and
3. What amount should be paid?
In this matter, the Respondent applies for its costs. Ordinarily, such applications are a contest between the parties to the proceedings, and the question of which party should pay is routinely resolved. But in this instance, the Respondent's application extends to Mr Rogers in his representative capacity. So, in this matter, the second question set out above, is whether those costs ought to be paid by Ms Dorman, Mr Rogers or both.
And then there is the question of how much ought to be paid.
Should the Respondent have its costs?
In Dawson, Vice President O’Connor observed:
[14] Martin J observed in Blackwood v Egan, that an order for costs is a quintessential exercise of discretion and that the principles in House v The King will apply. The principles that govern an award of costs are well established. In Latoudis v Casey, Mason CJ wrote:
It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
His Honour the Chief Justice further stated:
Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.
McHugh J said:
The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.
(Citations omitted. Emphasis added)
The Vice President went on to make some observations in Dawson that were apposite to these proceedings:
[23] Notwithstanding the various submissions made by the Respondent and efforts made to explain to the Applicant the situation in which he was placed, the Applicant continued on an erroneous path. Even on the hearing of this application for costs, the Applicant continued to rehearse submissions which had failed in respect of the substantive application.
[24] In exercising the discretion, I have considered the fact that the Applicant was self‑represented. However, as the authorities suggest, that alone should not be a basis upon which a successful party should be denied their costs.
[25] In Northern Territory v Sangare, the High Court observed:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person.
[26] The Applicant's case was one without any prospects of success. In short, the Applicant failed to identify a breach of the IR Act or an industrial instrument under the Act; and never made an application that would have empowered the Commission to grant the relief sought by the Applicant. Those failures were fatal to his application.
[27] Equally, the application was brought to the Commission on a footing which was misconceived and doomed to fail. The case advanced by the Applicant was on any view of the material, 'so lacking in merit or substance as to be not fairly arguable'.
(Emphasis added) (citations omitted)
From the moment it was filed, Ms Dorman's application was beset with two obvious and significant problems. Firstly, it was filed outside the statutory time limit prescribed by s 317(2) of the IR Act, and therefore liable to be dismissed.
Secondly, Ms Dorman's application as filed had all of the same characteristics of a number of other misconceived applications involving applicants who had not complied with various directives compelling vaccination against COVID-19, and which had already been dismissed by the Commission.
The Respondent had issued the directive and required inter alia for its employees to be vaccinated against COVID-19. It was the same directive that had been found to be lawful and reasonable on multiple previous occasions by the Commission.[43]
[43] See, for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039.
Ms Dorman's application plainly revealed that she had declined to comply with this lawful and reasonable direction. Her application revealed that her reasons for doing so could best be described as 'vaccine hesitancy' i.e. she was not able to feel convinced that any of the available vaccinations were safe.
Mr Rogers' contemptuous disregard for the cautions offered by the Commission, which included cautions about the time limitation objection, plainly demonstrates the causal link between his unreasonable conduct and the costs incurred by the Respondent. Had Mr Rogers earnestly contemplated even just the time limitation issue alone before 4 November 2022, he would in all likelihood have arrived at the same conclusion he reached nearly three months later, after numerous costs had been incurred by the Respondent.
For completeness, it ought to be noted that, to the extent Mr Rogers seeks to lay blame on Ms Misko for not adequately instructing him about the late filing, he could easily have overcome that alleged disadvantage if he had made proper enquires when he first had the opportunity to became aware of the Respondent's objection i.e. on or around 4 November 2022, or by 25 November 2022 at the absolute latest.
Further, to the extent that Mr Rogers relies on his (alleged) previous 'recommendations to discontinue proceedings' that he says he made to Ms Dorman,[73] the Commission has already concluded that he did not make any such recommendation to her, ever. The period in late 2022 is dealt with above. Subsequent to the mention on 8 December 2022, with one exception, there is no hint of discontinuance raised by Mr Rogers until the Saturday before the hearing.
[73] Exhibit 3, para. 30.
In his statement filed on 20 February 2023 (which is not in evidence), a relevant email from Mr Rogers to Ms Dorman dated 19 January 2023 is attached.[74] It reads:
Hi Delma,
Can you please call me on the below number over the weekend at a time that is most convenient for you.
The Hearing date is 30 January 2023 and we need to discuss whether you should move forward given the comments the Commissioner has repeatedly made to me.
(Emphasis added)
[74] See IR Act (n 3) s 531(2).
This email is entirely inconsistent with Mr Rogers assertions that he had made 'recommendations to discontinue'. This email plainly contemplates the option to proceed albeit in the context of a need to discuss the implications of the Commission's comments to Mr Rogers.
Regrettably for Mr Rogers, he has missed two opportunities to have his version of events scrutinised under oath. Consequently, no conclusions can be reached about the veracity or otherwise of matters he has included in a sworn affidavit. But on the available evidence, it would appear that Mr Rogers' sworn account is, at the very least, unreliable.
As a consequence of the litany of unreasonable acts and omissions of Mr Rogers that are set out above, he has personally caused the Respondent to incur numerous costs. There could be few clearer factual scenarios warranting the exercise of the Commission's discretion to impose a personal costs order on him.
(b)The costs proceedings
For reasons already set out above, Mr Rogers cannot be the subject of a costs order in respect of the costs proceedings. He was not a representative in those proceedings.
Further, to the extent s 545(2)(a) of the IR Act might be considered to apply, the Commission considers that Mr Rogers conduct in defending the costs proceeding did not meet the jurisdictional threshold set out in ss 545(2)(a)(i) or (ii). In short, Mr Rogers was entitled to defend such an application. Such an application is sufficiently novel in the Commission such that it could not be said there were no reasonable prospects of success.
However, as a matter of public interest, it is worth describing the unreasonable conduct of Mr Rogers in respect of the costs proceedings.
Following mentions on 30 and 31 January 2023, the parties were directed to file submissions on costs. As noted above, Mr Rogers initially failed to comply with the direction, but ultimately did so after the Commission intervened and further directed him to do so. The hearing in respect of costs proceeded on 17 March 2023.
The costs hearing was scheduled for one day. Ms Dorman gave evidence. Following her evidence, Mr Rogers sought a short adjournment, and the matter was stood down. Upon the parties return, the Commission was advised that an 'in principle' agreement had been reached. Accordingly, Mr Rogers was not required to give evidence and the matter was adjourned pending settlement.
Within the next few weeks, the Respondent advised that Mr Rogers had declined to sign a deed they had proffered. Mr Rogers indicated in an email to the Industrial Registry that he could not agree because it would involve an admission of 'wrongdoing where no such wrongdoing took place'. Mr Rogers' excuse for not concluding the 'in principle' agreement is as implausible as it is nonsensical.
While the proposed deed is not before the Commission, it can be confidently assumed that it would not compel an 'admission' of any sort, either express or by inference, from Mr Rogers. It is a relatively standard drafting practice to include either a 'no admissions' clause or for a deed to remain silent on such matters. But more importantly, the only issue in contest was who ought to pay costs and how much those costs ought to be. Any agreement resolving this contest could not, on any characterisation, give rise to an admission of 'wrongdoing'.
In those circumstances, Mr Rogers has in, all probability, unreasonably reneged on the 'in principle' agreement reached on 17 March 2023. A cynical person might think that, when faced with the immediate prospect of having to give evidence at the costs hearing, Mr Rogers agreed with the Respondent to a settlement 'in principle' as a means of avoiding the scrutiny of the Commission that he (correctly) anticipated was about to be applied to his conduct of the matter.
Following confirmation of the failed settlement from Mr Rogers, dates for a resumed costs hearing were discussed. Mr Rogers stated in an email on 27 March 2023 that he would 'work around' a date that was convenient to the Commission and Respondent. Accordingly, a listing notice was issued on 5 April 2023 confirming a hearing date of 23 May 2023. The listing notice was sent to Mr Rogers.
At 10:00am on the morning of 23 May 2023, the Respondent and its lawyers attended as directed.
Ms Dorman attended as directed.
Mr Rogers failed to attend.
Mr Rogers could not be raised when attempts were made to contact him by telephone. The details of email delivery of the listing notice to him were also checked and confirmed. By this time, after all that had transpired since September 2022, the Commission was no longer prepared to waste time indulging Mr Rogers' recalcitrant conduct. The Commission adjourned the resumed hearing and advised the parties who were present that the matter would be finally determined on the papers. Further, the Respondent was given leave to file a further affidavit setting out their costs.
All parties (including Mr Rogers) received an email confirming this.
At 1:35pm on 23 May 2023, Mr Rogers emailed the Industrial Registry and explained that he had incorrectly diarised the resumed hearing for 25 May 2023. The Commission is sceptical about this explanation given the previous conduct of Mr Rogers.
For all of the above reasons, the Commission is of the view that Mr Rogers conduct between 30 January until 23 May 2023, but particularly from 17 to 27 March 2023 constituted unreasonable acts and omissions. If the Commission had jurisdiction to do so, it would have no hesitation in imposing a costs order on Mr Rogers for his conduct of the costs proceedings.
The only remaining question is what amount costs ought to be ordered.
What amount should be paid?
Rule 70 of the Rules relevantly provides:
70 Costs
(1)This rule applies if the court or commission makes an order for costs under section 545 of the Act.
(2)The court or commission, in making the order, may have regard to –
(a)for a proceeding before the commission – the costs payable on the scale of costs for Magistrates Court under the Uniform Civil Procedure Rules 1999, schedule 2; or
(b)for a proceeding before the court or the full bench – the costs payable on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
(c)any other relevant factor.
(3)The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.
The Commission is not bound to apply the Magistrates Court scale in determining what costs are to be paid.[75] Indeed, in the Commission's view, inviting pedantic arguments about which scale items apply will often give rise to fresh areas of dispute that can have the effect of further cost and delay being added. Subject to the Commission being satisfied of the basis for which broader claim for costs is made, the Commission is free to exercise a discretion as to the appropriate amount.[76]
[75] Ipswich City Council v Wendt & Ors [2020] QIRC 164 [76], discussing Marriage v Devine Ltd (2005) 178 QGIG 118.
[76] Golding v Sippel and Laundry Chute Pty Ltd [2021] ICQ 014.
On 4 July 2023, Crown Law filed the affidavit, setting out inter alia the costs incurred in the proceedings from 9 September 2022 until 3 July 2023. The affidavit claims the costs incurred amount to a total of $41,624.05. The grounds for the amounts claimed are particularised in the affidavit. The content of the affidavit is discussed in more detail below.
Shortly after receipt of the affidavit, Mr Rogers contacted the Industrial Registry and sought leave to reply to it. Leave was granted and direction for filing a response was issued. On 15 July 2023 (one day late) Mr Rogers emailed his reply to the Industrial Registry and the Respondent.
In essence. Mr Rogers' reply broadly responds that:
· it was not a complex matter.
· It should not require more than a few hours preparation time; and
· Costs after the discontinuance ought not be included.
Mr Rogers, without any hint of irony, submits that the time he took for preparation is a proper comparator for the Commission to gauge what should equate with reasonable preparation costs.
Beyond these very superficial submissions, contained in his email, Mr Rogers provides no challenge to the amounts claimed by the Respondent or the particulars provided to justify them.
The affidavit breaks the total costs sought into smaller amounts corresponding with the various stages of the proceedings. The affidavit also provides particulars of those costs which, while not especially illuminating, are sufficient such that the Commission can be confident that the costs claimed are reasonable.
The affidavit claims costs in respect of each period as follows:
a. 9 September to 4 November 2022 - $2,182.50;
b. 5 November to 15 November 2022 - $767.00;
c. 16 November 2022 to 30 January 2023 - $8,295.00;
d. 31 January to 17 March 2023 - $22,436.55;
e. 18 March to 23 May 2023 - $5,407.00; and
f. 24 May to 3 July 2023 - $2,536.00.
For all of the reasons set out above, the Commission is not inclined to allow costs for the period between filing of the application and 4 November 2022.
Further, the Commission would have been inclined to impose an order for costs associated with the hearing in the costs proceeding for the reasons set out above but is precluded from doing so because Mr Rogers did not participate in those proceedings as a representative and, in the Commission's view, he does not meet the jurisdictional criteria of s 545(2)(a) of the IR Act necessary to evoke the discretion.
In the circumstances the Commission considers it appropriate that Mr Rogers pay the Respondent's costs incurred during the period 4 November 2022 to 30 January 2023 being a total amount of $9,062.00.
Other matters
Mr Rogers was first admitted to the legal profession in or around October 2012. He held a practicing certificate until June 2022. At the time Ms Dorman came to be represented by Mr Rogers in September 2022, Mr Rogers was admitted to the legal profession but he did not hold a practicing certificate.
Mr Rogers appeared in the Commission as representative for Ms Dorman while employed by an entity named 'Reignite Democracy Australia' (‘RDA') which is a quasi-political organisation of the type spawned from the various anti-lockdown and anti-vaccine groups that emerged during the pandemic.
In his email response to the affidavit, Mr Rogers describes his role with RDA as having variously been 'in-house counsel' (during the period he previously held a practicing certificate) and 'a commercial role' during the first part of the period he represented Ms Dorman.[77]
[77] Email from Mr Rogers to the Industrial Registry dated 15 July 2023.
By 5 December 2022, Mr Rogers had been issued with a principle practicing certificate and had successfully registered an incorporated legal practice called 'Reignite Legal'. It is not clear whether Reignite Legal and RDA are related entities. The RDA website includes a link titled 'Legal' which redirects to Reignite Legal.[78]
[78] Note also: according to RDA, they are a 1/3 shareholder in Reignite Legal.
Mr Rogers states he did not commence legal work in his practice until 16 January 2023. Presumably Mr Rogers makes this submission because he somehow considers this means his conduct prior to 16 January 2023 was not regulated by the Legal Profession Act 2007 (Qld) (‘LP Act’).
Whether Mr Rogers held a practicing certificate or was operating his law firm at the relevant times between September 2022 and May 2023 is largely irrelevant. At all times during the proceedings Mr Rogers was either an 'Australian lawyer' or an 'Australian legal practitioner' within the meaning of the LP Act.[79] Therefore, Mr Rogers' conduct throughout these proceedings was all relevant to the question of his suitability to practice.[80] Further, from 5 December 2022 Mr Rogers' conduct was regulated by the Australian Solicitors' Conduct Rules ('the Solicitors' Rules').
[79] LPA (n 11) ss 5, 6.
[80] See generally LPA (n 11) ch. 4.
The foregoing reasons catalogue a range of conduct by Mr Rogers that, in the view of the Commission, raise serious questions about his suitability to practice. Unlike the Industrial Court of Queensland, the Commission does not have powers to punish for contempt.[81] But it is worth noting that there is at least one incident of explicitly contemptuous conduct by Mr Rogers in addition to his consistent display of disrespectful behaviour towards the Commission both in his demeanour and his repeated non-compliance with directions orders.[82]
[81] See IR Act (n 3) s 428.
[82] Australian Solicitors' Conduct Rules 2012 ('The Solicitors' Rules') r 4.
The Commission is a court of record in Queensland.[83] While non-legally qualified representatives and self-represented litigants will be allowed a degree of tolerance with respect to their conduct before the Commission, persons who meet the LP Act definitions of Australian lawyer or Australian legal practitioner can expect to be held to the same standard of conduct applied in any other court. This is so, regardless of whether they purport to appear as an 'agent'. Professional duties and the regulatory powers of the LP Act cannot be avoided by a practitioner simply 'rebadging' themselves under some other title.
[83] IR Act (n 3) s 429.
Mr Rogers appears to be closely associated with RDA. RDA was apparently founded on activism opposing lockdowns and vaccine mandates. Throughout the proceedings the Commission had the impression that Mr Rogers' personal views were at the forefront of his representation, and his professional duties to the Commission and his client were secondary.[84] More significantly, the Commission noted with increasing concern the consistent absence of Ms Dorman from the various mentions held throughout the latter part of 2022. It came as no surprise for the Commission to later learn that Ms Dorman was wholly incommunicado throughout the majority of the matter, and that Mr Rogers was pursuing the proceedings almost entirely uninstructed.
[84] The Solicitors' Rules (n 82) r 3.
It ought to be made clear that Mr Rogers is entirely free to hold and exercise his social and political views. But such freedom does not extend to Mr Rogers using clients as a mere vehicle to promote those views before a court or tribunal under the guise of legal proceedings.[85] It was immediately apparent that the extensive (but incompetent) submissions Mr Rogers filed early in these proceedings had the familiar 'anti-vax template' appearance. They made no material reference to Ms Dorman or the circumstances of her dismissal at all. When one then considers the complete absence of meaningful communication between Mr Rogers and Ms Dorman throughout the relevant period, Mr Rogers' conduct as a legal practitioner pressing his misconceived arguments is more than a little concerning.
[85] Ibid r 17.3.
It is not within the Commission's powers to sanction Mr Rogers for his conduct in these proceedings. However, if Mr Rogers continues to conduct himself in the same manner before other courts or tribunals, then in the Commission's view, he will inevitably bring the profession into disrepute. More concerningly, his conduct may adversely impact a member or members of the public.
Accordingly, the Commission intends to direct that the Registrar forward a copy of these reasons to the Legal Services Commissioner for her consideration.
Orders
For all of the foregoing reasons, the Commission orders:
1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matter TD/2022/197 are discontinued.
2. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the applicant in matter TD/2022/197, Mr Gareth Rogers, must pay the Respondent's costs in the amount of $9,062.00 within 14 days of the date of this order.
3. Direct the Industrial Registrar forward a copy of this decision to the Legal Services Commissioner for her consideration.
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