Reh v State of Queensland (Department of Education) (No. 2)
[2023] ICQ 32
•15 December 2023
INDUSTRIAL REGISTRAR
| CITATION: | Reh v State of Queensland (Department of Education) (No. 2) [2023] ICQ 032 |
PARTY: | Reh, Ely May v State of Queensland (Department of Education) |
CASE NO: | C/2023/23 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: HEARING DATE: | 15 December 2023 On the papers |
| MEMBER: | Industrial Registrar Shelley |
ORDERS: | 1. That the Respondent's costs of and incidental to the substantive appeal have been assessed as being in the amount of $7,821.50, 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 Appellant is to pay the Respondent's costs within 28 days of the date of this assessment decision, or other such period as may be agreed between the parties, as ordered in the decision of Vice President O'Connor on 1 August 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 1 August 2023, His Honour, Vice President O'Connor released a decision in this matter, in which the following orders were made:
1. By consent, the appeal is dismissed.
2. The Appellant pay the Respondent's costs of and incidental to this appeal, such costs 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.
3. The costs be paid within 28 days of the date of the assessment, or such other period as may be agreed between the parties.
As a consequence of those orders, the State of Queensland (Department of Education) (Respondent) filed an Application in existing proceedings on 20 October 2023 which was accompanied by an Affidavit sworn by Ms Samantha Gray, a lawyer employed by the Crown Solicitor on behalf of the Respondent.
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 Industrial Court of Queensland (Court) on 1 August 2023, in accordance with s 545(2) of the Industrial Relations Act, the Respondent applies to the Court, pursuant to rule 70(3) of the Industrial Relations (Tribunals) Rules 2011, for the Respondent's costs of and incidental to this appeal, 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 Ely May Reh is the Appellant in the substantive matter.
As outlined in exhibit SKG-02 to the Affidavit of Ms Gray, the total amount claimed for recovery by the Respondent was $7,876.92.
In response to the Application, a Further Directions Order was issued on 24 October 2023 requiring the following of the parties:
1. That the Appellant may file in the Industrial Registry, and serve on the Respondent, a Response (of no more than five pages in length) to the Schedule of Costs claimed by the Respondent (as outlined in SKG-02 of the Affidavit of Samantha Gray filed with the Application in Existing Proceedings) by 4.00 pm on Tuesday 7 November 2023. Should no response be received by that date, it will be taken to mean there is no response.
2. That the Respondent may file in the Industrial Registry, and serve on the Appellant, any Response in reply (of no more than five pages in length) by 4.00 pm on Tuesday 14 November 2023.
3. That the matter of the assessment of costs be dealt with on the papers, unless otherwise advised.
No response was received from the Appellant and as such was taken to mean there is no objection to the Schedule of Costs.
On the 30 November 2023, the Respondent filed in the Industrial Registry an Amended Schedule of Costs which amended the total amount claimed for recovery by the Respondent to $7,821.50. The Appellant was served these documents.
In response to the filing of the Amended Schedule of Costs, a Further Directions Order was issued on 1 December 2023 requiring the following of the parties:
1. That the Appellant 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 Friday 8 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 Appellant 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:
702Standard 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 Appellant may file, by 4.00 pm on Tuesday 7 November 2023, a response to the 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.
The Appellant's email contact details were recorded on the file as originally provided by the Appellant. On the 19 September 2023, the Industrial Registry received an email from the Appellant from an alternative email address advising that emails sent to the previously provided email address will be regarded as spam. On the same day, the Industrial Registry confirmed with the Appellant, by return email, that the new email address provided by the Appellant had been recorded as the correct and current email address.
The Further Directions Order was emailed to the parties on 24 October 2023 with the new email address provided by the Appellant utilised as the contact email. For completeness, the Industrial Registry also posted a copy of the Further Directions Order, along with copies of the Application in existing proceedings and Affidavit of Ms Gray to the Appellants Post Office Box address noted in their original Application.
The Industrial Registry received, by return post on 9 November 2023, the envelope posted to the Appellant on 24 October 2023. Written on the envelope were the words "Deceaced[sic] Estate".
As noted above, the second Further Directions Order regarding the Amended Schedule of Costs was issued to the parties on 1 December 2023. In this instance, the Industrial Registry received an auto-response advising that the email could not be delivered as the "Recipient email server rejected the message". The second Further Directions Order was also posted to the Appellant's Post Office Box which, to date, has not been returned.
Rule 17 "Change of address for service" of the Rules provides as follows:
Notice of any change in a party's address for service must be filed and served on all other parties to the proceeding immediately after the change.
Rule 30 "Service of directions order on party" of the Rules states:
The registrar may serve a copy of a directions order on the party who applied for the directions order by any of the following means –
(a) if the party has given an email address under these rules - emailing the order to the party;
…
(c) posting the order to -
(i)the party's address for service; …
The Appellant has not contacted the Industrial Registry since 19 September 2023 to advise of any updated email or postal address. I am satisfied that the Appellant has been appropriately served.
Therefore, as no response was filed by the Appellant, it has been taken that the Appellant 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 Gray, as well as the Amended Schedule of Costs, and have assessed the costs payable by the Appellant to the Respondent, pursuant to the Order of Vice President O’Connor dated 1 August 2023, to be in the amount of $7,821.50, as claimed.
Conclusion
For the reasons outlined above, I order as follows:
1.That the Respondent's costs of and incidental to the substantive appeal have been assessed as being in the amount of $7,821.50, 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 Appellant is to pay the Respondent's costs within 28 days of the date of this assessment decision, or other such period as may be agreed between the parties, as ordered in the decision of Vice President O'Connor on 1 August 2023.
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