Taylor v Clermont Coal Pty Ltd - [2021] QIRC 430

INDUSTRIAL REGISTRAR

CITATION:	Taylor v Clermont Coal Pty Ltd [2021] QIRC 430
PARTY:	Taylor, Craig (Applicant) v Clermont Coal Pty Ltd (Respondent)
CASE NO:	WC/2021/38
PROCEEDING:	Application in existing proceedings
DELIVERED ON: HEARING DATE:	17 December 2021 On the papers
MEMBER:	Industrial Registrar Shelley
ORDERS:	1. That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $5,805.88. 2. Payment is to be made within 21 days of the date of this decision.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND - application in existing proceedings pursuant to r 64I of the Industrial Relations (Tribunals) Rules 2011 regarding reasonable expenses of producing documents sought in a Notice of Non-Party Disclosure - Meaning of costs - Meaning of reasonable expenses - Reasonable expenses of $5,805.88 to be paid by Applicant to Respondent
LEGISLATION: CASES:	Acts Interpretation Act 1954 (Qld) Industrial Relations Act 2016 Industrial Relations (Tribunals) Rules 2011, r 64I Uniform Civil Procedure Rules 1999 Encyclopaedic Australian Legal Dictionary (online at 15 December 2021) 'costs' (def 1) Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112 Fraser Coast Regional Council v Alderton [2020] QIRC 001 Macquarie Dictionary (7th Edition, 2017) 'reasonable' (def 1-4) Macquarie Dictionary (7th Edition, 2017) 'expense' (def 1-4) Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136 Ure v The National Mutual Life Association of Australasia [1999] QSC 10

Reasons for Decision

Background

On 23 June 2021, a Form 29 - Notice of non-party disclosure was filed with the Industrial Registry by Turner Freeman Lawyers on behalf of the Appellant in the substantive matter, Mr Craig Taylor (Applicant). That Notice required Clermont Coal Pty Ltd (Respondent) to produce a number of documents mentioned or described in the schedule of documents contained within the Notice relevant to the substantive matter.
On 26 October 2021, the Applicant applied to the Industrial Registrar for an assessment of the costs and expenses as a consequence of receiving correspondence from Barry Nilsson Lawyers, on behalf of the Respondent, giving notice of its reasonable expenses of producing, in part, disclosed documents.
The amount sought by the Respondent was $13,235.50, which is broken down as follows:
· professional costs paid to Barry Nilsson Lawyers totalling $7,635.50 (exclusive of GST); and
· costs of the Respondent totalling $5,600 - equating to approximately 56 hours spent in searching for and collating said documents.

In response to the request, I issued a Directions order, dated 27 October 2021, requiring the following of the parties:

1. That Barry Nilsson Lawyers, on behalf of Clermont Coal Pty Ltd, file in the Industrial Registry, and serve on the Appellant, a Statement outlining the breakdown of reasonable expenses incurred in complying with the Notice of Non-Party Disclosure issued on 23 June 2021 by 4.00 pm on Monday 8 November 2021.
2. That the Appellant file in the Industrial Registry, and serve on Barry Nilsson Lawyers, on behalf of Clermont Coal Pty Ltd, any objection to the Statement by 4.00 pm on Monday 15 November 2021.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v Clermont Coal Pty Ltd

Details

AGLC: Taylor v Clermont Coal Pty Ltd [2021] QIRC 430
Case: [2021] QIRC 430
Decision Date: 17 December 2021 On the papers

CaseChat Overview and Summary

In the matter of Taylor v Clermont Coal Pty Ltd, the court was called upon to resolve a dispute regarding the reasonable expenses incurred by the Respondent in producing documents pursuant to a Notice of Non-Party Disclosure. This was an application made in existing proceedings under rule 64I of the Industrial Relations (Tribunals) Rules 2011. The primary issue before the court was to determine the extent to which the Applicant should bear the expenses of producing the requested documents, specifically whether these costs included legal advice, and if so, to what extent.

The legal issues revolved around the interpretation of 'reasonable expenses' under the context of a Notice of Non-Party Disclosure. The Respondent argued that these expenses could include legal advice, citing a precedent from Ure v The National Mutual Life Association of Australasia Limited. However, the court disagreed with this submission, noting that the case was primarily concerned with the taxation of costs rather than the inclusion of legal advice in the expenses. The court found that the expenses claimed by the Respondent included elements reflective of costs rather than reasonable expenses.

After carefully considering the Reasonable Expenses Statement submitted by the Respondent, the objections raised by the Applicant, and the subsequent reply statement, the court determined that the reasonable expenses should be limited to certain items as outlined in the statement. The court concluded that 75 per cent of Item 8 within Category A and 100 per cent of Item 1 in Category B of the Respondent's Reasonable Expenses Statement, dated 8 November 2021, should be paid by the Applicant. Consequently, the court ordered that the Applicant pay the Respondent the sum of $5,805.88 within 21 days of the decision date. This amount was calculated based on the court's determination of the allowable expenses.

Orders

Orders of the court

1. That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $5,805.88.

2. Payment is to be made within 21 days of the date of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Specifically, in relation to non-party production, Justice Refshauge in Taylor v Dixon Advisory Ltd[7], said:…though part of the regime of disclosure, the notice for non-party production has close similarity to the subpoena to produce documents. Justice Refshauge went on further to state:…costs complying with the notice include the searching for, collating, copying if necessary, and producing the documents.[7] Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136Conclusion The Respondent submitted that costs recoverable in respect of compliance with a notice of non-party disclosure can include legal advice, citing Ure v The National Mutual Life Association of Australasia Limited[8]. I do not agree with this submission for the reason that this matter was dealing with costs, specifically taxation on costs. The 'reasonable expenses' submitted by the Respondent included items that are reflective of costs and not reasonable expenses.[8] Ure v The National Mutual Life Association of Australasia [1999] QSC 10 I have considered the Reasonable Expenses Statement submitted by the Respondent, the objections of the Applicant and subsequent statement in reply and, for the reasons outlined above, I order as follows:1.That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $5,805.88.2. Payment is to be made within 21 days of the date of this decision. This amount has been calculated as 75 per cent of Item 8 within Category A and 100 per cent of Item 1 in Category B of the Reasonable Expenses Statement of the Respondent dated 8 November 2021.

Ratio Decidendi

Legal Principle Established

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