Mackenzie v State of Queensland (Queensland Health) (No. 3)
[2023] QIRC 361
•18 December 2023 On the papers
INDUSTRIAL REGISTRAR
| CITATION: | Mackenzie v State of Queensland (Queensland Health) (No. 3) [2023] QIRC 361 |
PARTY: | Mackenzie, Beverley v State of Queensland (Queensland Health) |
CASE NO: | TD/2022/133 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: HEARING DATE: | 18 December 2023 On the papers |
| MEMBER: | Industrial Registrar Shelley |
ORDERS: | 1. That the Respondent's costs of and incidental to the substantive application have been assessed as being in the amount of $7,685.17, calculated in accordance with the scale of costs of the Supreme Court and District Court as outlined in Schedule 1 of the Uniform Civil Procedure Rules 1999. 2. The Applicant is to pay the Respondent's costs within 28 days of the date of this assessment decision, as ordered in the decision of the Full Bench on 29 September 2023. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – application in existing proceedings pursuant to s 545 of the Industrial Relations Act 2016 and r 70 of the Industrial Relations (Tribunals) Rules 2011 – Court ordered costs be assessed by Industrial Registrar – Costs assessed on the scale of costs of the Supreme Court and District Court as outlined in Schedule 1 of the Uniform Civil Procedure Rules 1999 |
LEGISLATION: | Industrial Relations Act 2016, s 545 Industrial Relations (Tribunals) Rules 2011, r 70 Uniform Civil Procedure Rules 1999, r 702, Schedule 1 |
Reasons for Decision
Background
On 29 September 2023, a Full Bench of the Queensland Industrial Relations Commission (Commission), constituted by His Honour, Justice Davis, President, His Honour, Vice President O'Connor and Industrial Commissioner Dwyer, released a decision in this matter, in which the following orders were made:
1. That the applicant pay the respondent's costs of and incidental to the appeal, on the standard basis, to be calculated on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999.
2. The costs be in an amount agreed, or if the parties fail to reach agreement by 20 October 2023:
(a)the respondent is to file in the Industrial Registry and serve on the applicant its schedule of costs claimed by 17 November 2023;
(b)the applicant is to file and serve any objection to the costs claimed within 21 days of being served with the schedule of the costs claimed; and
(c)costs are to be assessed by the Industrial Registrar following an application for costs assessment being made by the respondent and the Registrar may have regard to the Uniform Civil Procedure Rules 1999, Chapter 17A when assessing the costs.
3. The applicant is to pay the respondent's costs of any assessment.
4. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment.
In accordance with those orders, the State of Queensland (Queensland Health) (Respondent) filed an Application in existing proceedings on 3 November 2023 which was accompanied by an Affidavit sworn by Ms Jelena Versteeg, a lawyer employed by the Crown Solicitor on behalf of the Respondent. These documents were also served on the Applicant.
The details of the decision sought by the Respondent within that application were outlined as follows:
Pursuant to the order for costs made by the Full Bench of the Queensland Industrial Relations Commission (Commission) on 29 September 2023 in accordance with s 545(2) of the Industrial Relations Act 2016, the Respondent applies to the Commission pursuant to r 70(3) of the Industrial Relations (Tribunals) Rules 2011 for the Respondent's costs of and incidental to the application for dismissal filed 30 March 2023 to be assessed by the Industrial Registrar on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.
Ms Beverley Mackenzie is the Applicant in the substantive matter.
As outlined in exhibit JV-04 to the Affidavit of Ms Versteeg, the total amount claimed for recovery by the Respondent is $7,685.17.
The Applicant was required to file any objections to the cost statement within 21 days of being served. No such objection was filed.
On the 6 December 2023, the Respondent filed in the Industrial Registry an Amended Schedule of Costs. The Applicant was served these documents.
In response to the filing of the Amended Schedule of Costs, a Further Directions Order was issued on 6 December 2023 requiring the following of the parties:
1. That the Applicant may file in the Industrial Registry, and serve on the Respondent, a Response (of no more than five pages in length) to the Amended Schedule of Costs claimed by the Respondent by 4.00 pm on Thursday 14 December 2023. Should no response be received by that date, it will be taken to mean there is no response.
2. That the matter of the assessment of costs be dealt with on the papers, unless otherwise advised.
No response was received from the Applicant and as such was taken to mean there is no objection to the Amended Schedule of Costs.
Relevant legislative framework
The power to award costs falls directly with the Industrial Court of Queensland or the Queensland Industrial Relations Commission pursuant to s 545 of the Industrial Relations Act 2016 (Act) and r 70 of the Industrial Relations (Tribunals) Rules 2011 (Rules).
Section 545 of the Act 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.
Rule 70 of the Rules 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 Courts 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.
Rule 702(2) of the Uniform Civil Procedure Rules 1999 provides:
702 Standard basis of assessment
…
(2)When assessing costs on the standard basis, a costs assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.
Consideration
As outlined above, the Further Directions Order stated the Applicant may file, by 4.00 pm on Thursday 14 December 2023, a response to the Amended Schedule of Costs claimed by the Respondent and that should no response be received by that date, it will be taken to mean there is no response.
As no response was filed by the Applicant, it has been taken that the Applicant does not object to the Amended Schedule of Costs.
I have considered the Application in existing proceedings filed by the Respondent, including the Affidavit of Ms Versteeg, as well as the Amended Schedule of Costs, and have assessed the costs payable by the Applicant to the Respondent, pursuant to the Order of the Full Bench dated 29 September 2023, to be in the amount of $7,685.17, as claimed.
Conclusion
As a consequence of the above consideration, I order as follows:
1.That the Respondent's costs of and incidental to the substantive application have been assessed as being in the amount of $7,685.17, calculated in accordance with the scale of costs of the Supreme Court and District Court as outlined in Schedule 1 of the Uniform Civil Procedure Rules 1999.
2.The Applicant is to pay the Respondent's costs within 28 days of the date of this assessment decision, as ordered in the decision of the Full Bench on 29 September 2023.
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