Horton v State of Queensland (Department of Justice and Attorney General)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Horton v State of Queensland (Department of Justice and Attorney General) [2025] QIRC 278
PARTIES:	Horton, Jan (Applicant) v State of Queensland (Department of Justice and Attorney General) (Respondent)
CASE NO:	B/2025/57
PROCEEDING:	Application for costs
DELIVERED ON:	20 October 2025
MEMBER: HEARD AT:	Dwyer IC Brisbane
ORDER:	The Applicant pay the Respondent's costs in the amount of $2423.00 within 21 days of the date of this order.
CATCHWORDS:	INDUSTRIAL LAW – COSTS – where the Applicant made an application to reopen Public Sector Appeal proceedings – where the Queensland Industrial Relations Commission determined the application to be misconceived – where the proceedings were dismissed – where the parties were invited to provide submissions on costs – where the Respondent seeks the costs in respect of responding to the application – consideration of whether to award costs against the Applicant – Respondent awarded costs
LEGISLATION:	Industrial Relations Act 2016 (Qld) s 541, s 545
CASES:	Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436 Gambaro v Workers’ Compensation Regulator [2017] ICQ 005 Horton v State of Queensland (Department of Justice and Attorney-General) [2025] ICQ 007 Horton v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2025] ICQ 013 Horton v State of Queensland (Department of Justice and Attorney-General) [2025] QIRC 206 Kelsey v Logan City Council & Ors [2021] ICQ 011 Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187

Reasons for Decision

Background

On 13 June 2025 Ms Jan Horton applied to the Queensland Industrial Relations Commission (‘the Commission’) to re-open her Public Sector Appeal proceedings in matter PSA/2023/192 ('the application').
In a decision released to the parties on 6 August 2025 I exercised the discretion conferred on the Commission by s 541 of the Industrial Relations Act 2016 (Qld) ('the IR Act') to dismiss the application on the basis that it was fundamentally misconceived.[1] I subsequently directed the parties to provide submissions on costs.
[1] Horton v State of Queensland (Department of Justice and Attorney-General) [2025] QIRC 206.
Submissions
In accordance with directions issued on 6 August 2025, the parties filed written submissions in respect of costs.
The respondent filed written submissions on 20 August 2025 seeking an order pursuant to s 545(2)(a)(i) and/or s 545(2)(a)(ii) of the IR Act, that Ms Horton pay the costs of and incidental to the proceeding in the amount of $2,423.00.
Ms Horton filed her submissions in response to the respondent on 3 September 2025, objecting to a costs order.
I do not intend to restate the parties' submissions in these reasons. I will refer to the salient portions in my consideration that follows.
The power of the Commission 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.[2] Notwithstanding this, the Commission is not a 'no costs jurisdiction'. The Commission is a discretionary costs jurisdiction. The existence of the discretion means that any party who incurs legal costs in the conduct of proceedings is at liberty to apply for costs orders where the circumstances prescribed by the IR Act permit.
[2] Industrial Relations Act 2016 (Qld) ('the IR Act') 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
…
(Emphasis added)
There can be no doubt about the Commission's power to make orders for costs against a party to the proceeding.
Section 545(2)(a) – Costs order against a party to the proceeding
In Kelsey v Logan City Council & Ors,[3] 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:
[3] [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.
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'),[4] Vice President O'Connor said the following in respect of s 545(2)(a) of the IR Act:
[4] [2021] QIRC 436 ('Dawson').
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.
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) (Emphasis added)

[10]In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[5] Vice President O'Connor comprehensively outlined the relevant principles in respect of an application pursuant to s 545 of the IR Act:
[5] [2020] QIRC 187 ('Watpac').
The test for “vexatiously or without reasonable cause”
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.
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.

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".
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.
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.
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.
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.
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'.
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)

Consideration
The application to reopen

At a mention of these proceedings on 11 July 2025 I plainly stated to Ms Horton that her application to reopen her public sector appeal was fundamentally misconceived. I raised the possibility of Ms Horton discontinuing her application. I additionally advised her that if she indicated a desire to press the application, I would first require submissions from her as to why it was in the public interest to proceed to deal with it.[6]
[6] T 1-2 to T 1-3.
Rather than requiring Ms Horton to make an election immediately, I gave her 7 days to consider which course she wished to take. Ms Horton had an opportunity to make a clear and informed choice. Ms Horton subsequently indicated that she wished to press her application.
Consequently, directions were issued requiring Ms Horton to provide submissions as to why it was in the public interest to continue dealing with her application. This was put to Ms Horton in the context of s 541 of the IR Act.
Notwithstanding that she had every indication that her application was fundamentally misconceived, Ms Horton pressed the matter and filed submissions. As anticipated, those submissions revealed no unique factual or legal basis upon which the Commission might be persuaded to re-open her public sector appeal, and nor could they in the circumstances. Consequently, I dismissed the application on 6 August 2025.
Costs application
Ms Horton is now confronted with an application from the respondent for their costs. The amount sought is $2423.00 and the rationale for this amount is set out in an attachment to the respondent’s submissions filed on 20 August 2025. They seek costs in respect of their two appearances and the preparation of written submission in the matter. In those circumstances the amount and the rationale are reasonable in my view. It is now simply a question of whether Ms Horton ought to be ordered to pay those costs.
I concluded in Horton v State of Queensland (Department of Justice and Attorney- General)[7] that, from 11 July 2025, Ms Horton could not have been under any illusion that her application was anything but misconceived and lacking any prospect of success. From that time, Ms Horton had the benefit of the clear and impartial observation that I offered her and yet she pressed ahead, thus requiring the respondents to consider her submissions and prepare a response.
[7] [2025] QIRC 206 at [52]-[53].
In her submissions responding to the costs application filed on 3 September 2025 Ms Horton included largely irrelevant chronology and merit arguments from her public sector appeal.
Relevant to the questions of costs, Ms Horton’s submissions do include a submission that seeks to dimmish the clarity and effect of the message I communicated to her on 11 July 2025 at the mention. In her submissions she says:[8]
On 11 July 2025, a mention was held with respect to the Application (Mention). Commissioner Dwyer, not dismissing the matter but giving the applicant an opportunity to submit an explanation as to why it would be in the public interest to reopen the matter…
(Emphasis added)
[8] Submissions filed 3 September 2025 at paragraph 10.
The transcript of the mention on 11 July 2025 is short and clear. No reasonable person could have misunderstood the tenor of the proceeding. I plainly told Ms Horton her application had no merit, and I told her why. Notwithstanding the views I clearly expressed to her, Ms Horton was entitled to an indulgence consistent with the principles of natural justice and procedural fairness and to this end, she was invited to firstly consider her position and later, invited to provide submissions addressing the discretion conferred by s 541 of the IR Act. To be completely clear: the opportunity afforded Ms Horton to consider her position and provide those submissions was merely a feature of procedural fairness that must be afforded to any litigant before their proceedings are dismissed.
Nothing about Ms Horton’s demeanour on 11 July 2025 would suggest she misunderstood the seriousness of the situation. Nothing about her written submissions would suggest that she (or whoever is responsible for her written submissions) is, in any way, intellectually or cognitively impaired. Indeed, as I have previously observed, Ms Horton’s written submissions demonstrate a higher degree of capability than the typical offerings of a self-represented litigant.[9]
[9] Horton v State of Queensland (Department of Justice and Attorney- General) [2025] QIRC 206 at [29].
In those circumstances it is wholly disingenuous for Ms Horton to attempt to distort the very clear message she was given on 11 July 2025 into something more equivocal. I reject any suggestion that Ms Horton could have misunderstood my clear indications to her.
In opposing the costs application Ms Horton further seeks to rely on the fact that she is self-represented. It is a common enough mantra from those who seek disproportionately favourable treatment from the Commission when, having launched their misconceived proceedings, they find themselves having to deal with the adverse outcomes that inevitably follow.
The response to that mantra was most eloquently expressed by President Martin (as he then was) in Gambaro v Workers’ Compensation Regulator[10] as follows:
Although the appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege . In Robertson v Hollings, Keane JA (with whom Fraser JA and Cullinane J agreed) said:
“Litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.”
(Emphasis added)
[10] [2017] ICQ 005 at [14].
Given the plain language used at the mention on 11 July 2025 I am confident that it would have been more than reasonably apparent to Ms Horton that her application was without merit. Ms Horton’s lack of legal representation is not sufficient in those circumstances to insulate her from the cost consequences enlivened by her conduct of these proceedings.
Ms Horton also submits that costs orders ought not to be used as a means of punishing a litigant. The fact that Ms Horton characterises the prospect of an adverse costs order as a punishment demonstrates her ongoing lack of insight into the financial consequences for the State of Queensland in continuing to entertain her patently futile claim.
It must be said that Ms Horton was perfectly entitled to pursue her public sector appeal. She had the benefit of a full hearing of the matter before Commissioner Power. She further had the benefit of fulsome reasons from Commissioner Power addressing her appeal, albeit the appeal was dismissed. None of that was (or could be) the subject of any application for costs. Significant resources of the respondent (and the Commission) are drawn upon to deal with such appeals. Ms Horton was entitled to the benefit of those resources in having her appeal heard, and she had that benefit.
Not content with the decision of Commissioner Power, Ms Horton then exercised her right to appeal to the Industrial Court of Queensland (‘the Court’). Again, Ms Horton cannot be criticized for exercising her right in this way. Ms Horton had the benefit of not only a hearing of her appeal, but she also had the benefit of hearings of interlocutory applications that she made in respect of inter alia alleged ‘fresh’ evidence.

The various decisions of Deputy President Merrell demonstrate that Ms Horton was given a full and fair hearing on all aspects of her appeal and the interlocutory applications, and she received the benefit of comprehensive written reasons for the decisions.[11] Again, significant resources of the respondent (and the Court) were utilised to accommodate Ms Horton’s appeal.
[11] See Horton v State of Queensland (Department of Justice and Attorney-General) [2025] ICQ 007 and Horton v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2025] ICQ 013.
Despite the repeated and resounding failure of her various proceedings before the Commission and the Court, the rights Ms Horton exercised were legitimate. As such, up to the point of the conclusion of the proceedings before the Court, Ms Horton’s conduct of proceedings was unlikely to attract consideration of costs orders. Up until that point, Ms Horton was entitled to the benefit of being heard on matters that were untested and otherwise free of any technical barriers to hearing. But the application the subject of these proceedings is of a different character.
Reasonably apparent there was no prospect of success
The power to make costs orders is confined. The limited circumstances under which costs orders may be considered include where it would have been reasonably apparent to a party that the application had no reasonable prospect of success.[12]
[12] Section 545(2)(a)(ii) of the IR Act.
As to the absence of merit being reasonably apparent, Ms Horton asserts ignorance on the basis of her self-representation. I reject this. Her previous submissions and conduct would suggest she is capable of research and analysis of legal concepts to a relatively advanced degree. In my view, this demonstrates that she is not beyond reason and would be capable of understanding the misconceived nature of her application to reopen her public sector appeal. This is especially so after my comments to her on 11 July 2025.
It would appear in the circumstances of this matter that, rather than labouring under some innocent impediment to understanding this, Ms Horton proceeded (despite my clear caution to the contrary) because she simply refused to see reason.
Ms Horton has been extensively heard on her various grievances. She has been heard by both the Commission and the Court. Despite her comprehensive failure at all levels on all matters, she has never been subject to any adverse consequence in the form of costs. Up to the point of the conclusion of the proceedings before the Court, the absence of adverse consequences is in keeping with the statutory protections against costs orders.
But on this occasion, having persisted with a patently unmeritorious application, Ms Horton has undoubtedly invoked my discretion to impose a costs order on her pursuant to s 545(2)(a)(ii) of the IR Act, and I intend to do so.
Order
I make the following Order:
The Applicant pay the Respondent's costs in the amount of $2423.00 within 21 days of the date of this order.

[2025] QIRC 278

20 October 2025