Wearne v Dib

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Wearne v Dib [2021] QIRC 425 Wearne, Elly (Applicant) v Dib, Mahamad (Respondent)
CASE NO:	AD/2020/53
PROCEEDING:	Application for costs
DELIVERED ON:	13 December 2021
HEARING DATES: MEMBER: HEARD AT: ORDERS:	6 October 2021 Pidgeon IC Brisbane The Respondent is to pay the Applicant costs in the amount of $15,050.00.
CATCHWORDS: LEGISLATION: APPEARANCES:	INDUSTRIAL LAW – ANTI-DISCRIMINATION – where the matter was set down for hearing - where the respondent did not attend - whether it in the interests of natural justice to award costs Anti-Discrimination Act 1991 Industrial Relations Act 2016 Mr McGuire of counsel instructed by WorkerLaw for the Applicant Mr Dib (junior) of Dib and Associates for the Respondent

Reasons for Decision

Background to the proceeding of the matter

While the costs application is specific to the dates the hearing was set down for, being 5-8 October 2021, it is useful to set out some of the history of the matter without going into the facts and contentions relating to the substantive matter.
Ms Wearne (the Applicant, and Complainant in the substantive matter) had her complaint referred to the Queensland Industrial Relations Commission (the Commission) by the Human Rights Commission on 8 June 2020.
Ms Wearne retained Human Rights Claims jointly with Worker Law to assist with anti-discrimination matters.
On 22 June 2020, the Respondent sought leave to be legally represented in an application made on his behalf by MKW Legal.
First conference listed
A conference of the matter was listed for Monday 13 July 2020.
On Friday 10 July 2020, MKW Legal sent an email citing 'unavailability and current business pressures' and seeking an adjournment of the matter 'for a period of say 4 weeks'.
The adjournment was granted and a further conference was held on 21 August 2020. The matter was not resolved at that conference.
Statement of facts and contentions and response to statement of facts and contentions filed
Directions were issued by Commissioner Dwyer and the Applicant's statement of facts and contentions was filed on 11 September 2020.
The Response to the complainant's statement of facts and contentions was filed on 9 October 2020.
Second conference listed
A second conference of the matter was listed for Monday 24 May 2021.
On Friday 21 May 2021, MKW Legal sent an email stating that the Respondent was 'unwell' and seeking an adjournment of the conference for a period of one month.
The adjournment was granted and a further conference was listed for Wednesday 23 June 2021.
On 1 June 2021, the Applicant's representative contacted the Commission to raise concerns about the adjournment requests and asked that the matter be listed for hearing. Commissioner Dwyer sought medical evidence from the Respondent explaining the basis for the Respondent's inability to participate in a conference.
A medical certificate was provided to the commission through MKW Legal on 8 June 2021 and on 9 June 2021, Commissioner Dwyer's Associate confirmed via email that the conference would not go ahead.

Registry allocates matter for hearing

The matter was allocated to me for hearing and the matter was mentioned on 25 June 2021.
At that mention, the Respondent was represented by Dib and Associates as town agents.
I issued directions regarding exchange of witness lists and outlines of evidence and listed the matter for Tuesday 5 October to Friday 8 October 2021 at the Commission in Brisbane (noting that Monday 4 October was a public holiday in Brisbane).
On 26 August 2021, Dib and Associates filed a Form 36 Notice of Change of Lawyer, placing themselves now as the solicitor on record.
Correspondence in the immediate lead up to the hearing
At 6.03pm on Friday 1 October 2021, the Applicant's representative emailed the Industrial Registry and attached a draft trial plan. The email said, in part
We attach a draft trial plan on behalf of the Applicant.
We have also attached the proposed draft trial plan provided to the Respondents. We have sought to consult with the Respondent representatives but have, at the time of sending, not been advised of their expected plan….
On Sunday 3 October 2021 at 12.22pm, Mr Torik Dib of Dib & Associates Lawyers sent an email to the Industrial Registry and copied the correspondence to the Applicant's representatives. That email said, in part:
We refer to the above-mentioned matter and the hearing listed to commence Tuesday 5 October 2021.
Unfortunately there has been a recent breakdown and we have received instructions to replace counsel in the matter. Our office may also be seeking to withdraw from the matter.
On that basis, Mr Dib will not be in a position to proceed with the hearing and will be seeking the hearing be vacated.
We apologise for the late notice of this but we have only recently received these instructions are notifying the Registry and any other party on an urgent basis.
We will be in attendance on Tuesday 5 October 2021 to make an application to vacate the hearing.
…

Day one of the hearing – Tuesday 5 October

The hearing commenced at 10.16am on 5 October 2021. At the outset of the proceeding, Mr Dib Jr[1] informed the Commission that 'unforeseen circumstances…have arisen, particularly in relation to Mr Dib's mental health'. The Commission were told that the Respondent had just attended a medical centre of his long-term doctor and that the Respondent was 'also attending the hospital now'.[2]
[1] For clarity I will refer to the Respondent's representative as Mr Dib Jr and the Respondent as either 'the Respondent' or 'Mr Dib Sr'.
[2] T1-2, ll24-29.
Mr Dib Jr read from a letter provided by the doctor that said
This is to certify that the above-named presented here today with symptoms of severe anxiety and panic attacks. He is unfit to stand trial under the current circumstances and is seeing a psychiatrist who I understand will assess him in due time.[3]
[3] T1-2, ll31-34.
Mr Dib Jr submitted that the Respondent had taken 'every step' to prepare for and attend the trial. This was said to include: provision of outlines of evidence and booking of flights and accommodation for witnesses to attend.[4]
[4] T1-2, l40.
Relevant to the Respondent's stated health issues, Mr Dib Jr said
Now, as soon as I was made aware of this, which was the Friday I suspected that there were mental health issues, I contacted a psychologist. That psychologist, upon my instructions, he organised an urgent conference with Mr Mahamad Dib and it was upon that conference and the findings of that conference that he provided that report which I tendered to the Commission.
Unfortunately, there – in unforseen circumstances like this there really isn't much preparation that can be made because it's unforseen. I couldn't have prepared for this…[5]
[5] T1-2, l45 – T1-3 l6.
Mr Dib Jr also handed up a report from Sam Albassit, Psychologist dated 4 October 2021. That report stated that on Friday 1 October 2021, Dib and Associate Lawyers had referred the matter of the Respondent's current mental health status to him and he had scheduled an audio-visual psychological assessment for Saturday 2 October 2021.
Mr Albassit said that he spent approximately two hours assessing the Respondent. Mr Albassit said that the Respondent
…has been experiencing ongoing depression and anxiety as a result of this legal matter he is involved in. During his most recent consultation it was evident to me that he was exhibiting heightened anxiety, and that it has progressively worsened over the last month.
Relevantly, Mr Albassit stated:
…due to the exacerbation of his mental health condition over the last four weeks, I believe Mr Dib is unable to confidently and efficiently direct or convey information relating to his legal proceedings. He requires the assessment by the Psychiatrist and intensive therapy over the next three to six months. A review of his treatment and his condition will occur thereafter.
Mr Albassit concluded by saying 'if you have any further questions in relation to Mr Dib's Psychological well-being, please do not hesitate to contact me at your earliest convenience at my Yagoona Office'.
Mr Dib Jr then addressed what he said was the 'second reason for the adjournment'. The reason given was that the Respondent has 'lost faith in counsel and so we've had to re-brief the matter. He said, 'it's really a – predominantly his mental health issues but an adjoining effect of having to brief counsel'.[6]
[6] T1-3 ll20-23
The applicant's representative replied with reference to the email communication at [20] and submitted that there are strong grounds to believe that the application to adjourn the matter is disingenuous. Mr McGuire addressed various aspects of the history of the matter and previous adjournments. He referred to the medical evidence presented to Commissioner Dwyer on 8 June 2021 which says:
I have been Michael Dib's family doctor since 2017. Since mid-2020 allegations started by his past employee started his mental health stress disorder condition has deteriorated. At this time due to severely stress he has been under he is not mentally capable to process and comprehend any more mediations and meeting regarding the mid-2020 allegation.
Mr McGuire said that as of 3 October 2021, the Respondent had been led to believe that Mr Dib was simply going to be unrepresented and planned to strenuously oppose any application for adjournment.
Mr McGuire questioned whether the application was genuine in circumstances where the Respondent was now saying that the matter was predominantly the mental health matter but was not mentioned in the 3 October 2021 email.[7] Mr McGuire requested that Mr Albassit be made available for cross-examination or that in the alternative, the matter proceed in the Respondent's absence.
[7] T1-6 ll
Mr Dib Jr said that he is not a mental health practitioner and that it was not for him to say that the Respondent was suffering mental health issues.[8]
[8] T1-6, ll25-27.
Mr Dib Jr said that there was no 'disingenuous intent' and submitted that the mental health issues cited for being unable to attend the conciliation are the same mental health issues the Respondent is now suffering from and which have significantly escalated as of late are stemming from the same matter and the matter ongoing.[9]
[9] T1-7, ll32-40.
Mr Dib Jr submitted that to proceed with the trial without the Respondent being able to provide ongoing instructions would be detrimental to his case and his defence and would be against procedural fairness. In asking for the trial to be vacated, Mr Dib Jr submitted that the matter be listed for mention in a period of four to six weeks so that Mr Dib's mental health issues could be reassessed.
I asked Mr Dib Jr if the matter could go ahead in the Respondent's absence given the submissions he had made about being prepared and following all steps in getting ready for the hearing. Mr Dib Jr said that he was not prepared for cross-examination, rather he had prepared for his role in the matter, that being 'preparation for the trial and providing material to my friend's office but not for the cross-examination of the witness'.[10]
[10] T1-8, ll28-40.
Mr Dib Jr said that he had just received correspondence from the doctor regarding the Respondent's attendance at the medical centre that morning. He also said that the Respondent was 'attending the hospital now'.
Dr Seton's evidence
In circumstances where the Respondent was requesting the matter be vacated and the Applicant's representative was seeking that the matter go ahead, I determined to call the Respondent's doctor and the psychologist to ascertain the Respondent's capacity to provide instructions should the matter continue.
Dr Seton made himself available and gave evidence to the Commission. He said that he had been the Respondent's family doctor for the last six years and that he was unaware of the Respondent seeing anyone else.[11]
[11] T1-11, l40 - T1-12 l17.
When asked how the appointment that morning had come about, Dr Seton said:
He came to see me because he said he was feeling terrible, terribly anxious. He didn't feel he was in a position to attend court because he just didn't think he'd be coherent and manage to deal with the situation and…[12]
[12] T1-14, ll1-4.

Dr Seton's letter regarding the consultation that morning said 'he is unfit to stand trial in the current circumstances and is seeing a psychiatrist who I understand will assess him as fit to stand trial in due course'. When asked what he was trying to say there, Dr Seton said:
Well, just basically that he was going to prepare himself emotionally so he didn't have a – you know, that – that he would be capable of standing and being able to defend himself in the situation because of his anxiety. As I say, he's normally a very coherent man. He didn't appear terribly coherent this morning. He looked really anxious.[13]
[13] T1-15, ll31-35.
Dr Seton said that he understood that every trial was stressful and that trials may be stressful for all parties. Dr Seton said that he can only base what he says on what a person says to him and that the Respondent had told him that he 'wasn't going to be in a position to be coherent and to talk normally'.[14]
[14] T1-16, ll1-7.
Dr Seton said that he was not concerned about the Respondent's health to an extent that he thought he should go to the hospital and that all he had done today was prescribe some sedatives.[15]
[15] T1-16, ll32-40.
I asked Dr Seton regarding the Respondent's capacity to communicate instructions over the phone:
COMMISSIONER: A question that I have is whether your sense was that Mr Dib Senior would be in a position, for example, to - to take a phone call or phone calls from his son [Mr Dib Jr]… to get updates on how things are going … to provide some instructions to his son in a way that would enable some of the evidence here to be heard, not necessarily Mr … Dib's evidence?
DR SETON: No, that sounds very reasonable because, I mean, he – he would obviously be in a position to, you know – to – to be able to provide – if – if – if the – it the matter is doing to – going to be done today it would obviously be better for him to be able to at least provide some sort of evidence to his son that his son can use and in the calm reaction – the calm environment of being at home, not being in – you know, in front of a court where he could have a full-blown panic attack which was really my concern, you know, that he is in – in front of the court. The way he looked to me this morning is that he just wouldn't cope, you know. This won't – you know, I've obviously had to present in court before on behalf of situations and I know the difference between being anxious, which obviously we always are, and the other thing as being – having a panic attack, full-blown panic attack in front of, you know, the - - -
COMMISSIONER: Yes? ---
DR SETON: Being in that situation. So I just felt that he – he might be better able to defend himself if he was better emotionally prepared. But I think if he's talking to his son from home obviously I – I think that could be quite reasonable.
COMMISSIONER: Okay?---
DR SETON: That he wouldn't be in the spotlight and if he was having a panic attack at least it wouldn't – you know, he wouldn't have the spotlight on him per se which is when that sort of thing is more likely to occur.[16]
[16] T1-17, ll15-44.
I confirmed with Dr Seton 'that it might be reasonable for him (the Respondent) to be able to take phone calls from his son to be able to provide his son with some – some instruction about matters as the week goes by?'. Dr Seton replied 'It sounds very reasonable to me because – yep, I – I think that will work well.'[17]
[17] T1-18, ll30-33.

Attempts to call evidence from Mr Albassit

On the day of the hearing my Associate called and left messages for Mr Albassit at his Yagoona office (as per the letter he provided) at 11.45pm; 12.25pm and 3.45pm. During this time Mr Dib Jr reported to the Commission that he had spoken to Mr Albassit and that:
MR DIB JR: it was a very short conversation and he said that his unavailable for the next five to six weeks. He didn't specifically say, 'If the court requires me in the next however many weeks I can't appear.' But he said that, "I'm fully booked with clientele from morning to evening for the next five to six weeks"
COMMISSIONER: Yes.
MR DIB JR: And he said, "Particularly today, I won't be able to appear."[18]
[18] T1-19, ll20-27.
I decided to wait and see if Mr Albassit would make himself available as he had indicated in his letter of two days earlier.

Mr Dib Jr foreshadowing matters arising from Mr Ablassit's evidence

Mr Dib Jr submitted that if Mr Albassit were to become available, 'his evidence would be more indepth' than Dr Seton. However, Mr Dib Jr said that ultimately 'either way, I'm not in a position and my office is not in a position to proceed to today with any part of the matter'.
I told Mr Dib Jr that in the event I decided that the hearing would proceed, there would be no evidence heard in the matter for the rest of the day and that the evidence would commence the following morning, giving him time to prepare. I also told Mr Dib Jr that it was my expectation that he should have been commencing the process of preparing to cross-examine witnesses because there was no guarantee that the application to adjourn or vacate the matter would be successful. To which Mr Dib Jr replied:
MR DIB JR: And it also may be – and I don't mean to put you in a more difficult or precarious situation, but it also may be the – the – case that, should that occur, then my office may have to withdraw from the matter and then he would not be legally represented.
The trial dates were vacated
At the end of the day when it had reached 4.00pm and Mr Albassit was unable to be contacted, the Commission resumed.
In requesting that the hearing proceed the following morning, Mr McGuire made some submissions regarding inconsistencies between Dr Seton's evidence, the things reported by Mr Albassit and the submissions of Mr Dib Jr. Specifically, Mr Maguire said that as of Sunday 3 October, the Respondent had been well enough to provide instructions about counsel for the matter.
I asked Mr Dib Jr to clarify for me the comments he had made about potentially withdrawing as legal representative in the event that I decided not to grant the application to vacate the hearing, to which Mr Dib Jr responded:
MR DIB JR:So if the trial was to proceed, then I personally would not be in a position to be able to best defend Mr Mahamad Dib.
COMMISSIONER: And why is that?
MR DIB JR: Because, firstly, issues of preparation and secondly, he – with acknowledgement to my own skills, and – I'm still a junior practitioner, and Mr Dib wishes to have someone more senior and someone more experienced in the Commission to be able to represent him in this kind of matter.[19]
[19] T1-28, ll1-9.
Mr McGuire submitted that no regard should be paid to the psychologist's report and that the evidence of Dr Seton was that the Respondent would be fit to proceed and could give instructions to whoever would be cross-examining the Applicant. Mr McGuire argued that it would be possible for the matter to be part-heard.[20]
[20] T1-29, ll29-44.
I raised concerns with Mr Dib Jr regarding the fact that he was aware on Friday that the Respondent's mental health issues were such that his legal representative decided he needed to be referred for assessment by a psychologist on Friday but that no mention was made of mental health issues being a potential reason for an application to vacate the trial until the morning the trial was due to commence. Mr Dib Jr said that he understood the concerns that I may have, 'particularly around the chronology of how it played out'.[21]
[21] T1-30, l44 – T1-31, l14.
Mr Dib Jr said that while there were concerns about the Respondent's mental health and capacity to attend the hearing, this was not confirmed until after the psychologist appointment on Saturday and when the report was provided on Monday.

I asked Mr Dib Jr why, when he had made arrangements on Friday for the Respondent to be assessed by a psychologist regarding fitness to attend the hearing, that he didn't take the next step of informing the Commission that there was potentially an issue regarding the capacity for the hearing to go ahead. Mr Dib Jr said that in hindsight he should have included that in the email he sent but that
the most urgent thing on his mind at the time was to advise all parties that we were seeking to vacate the trial. So I just wanted to put everybody on notice…I thought the most important message in that email to my friend's office and to the Commission was just to simply advise that he's not going to be able to proceed…[22]
[22] T1-32, ll5-24.
Following the submissions of the parties, I determined that it was not viable to wait until Mr Albassit was available to provide evidence to the Commission regarding the Respondent's capacity to provide instructions to allow the matter to be part heard. Mr Albassit had not returned phone calls from the Commission requesting his attendance although he had managed to speak on the phone to Mr Dib Jr and indicate that he was not going to be available to speak with the Commission. As of the date I am releasing these reasons, Mr Albassit has never returned the Commission's phone calls.
On the basis of Dr Seton's advice that the Respondent was not well enough to attend the hearing, Mr Albassit's (albeit untested report) that the Respondent would be unable to convey information regarding the legal proceedings and the advice of both Mr Albassit and Dr Seton that the Respondent had been prescribed medication, I reluctantly came to the view that the hearing would be unable to proceed.
I asked the Applicant if there was an intention to seek costs thrown away for the hearing and Mr McGuire confirmed that the Complainant would be seeking costs. I said that we would resume the following morning at 10.00am for the parties to be heard regarding costs.
Mr Dib Jr indicated that he had another matter to attend in the Magistrates Court at 9.00am on 6 October 2021. I found this curious as I would have expected Mr Dib Jr to have scheduled himself to attend the Commission all week given that I had only just decided to grant the application to vacate the hearing. Mr Dib Jr said that counsel and a clerk from his office were going to appear for day 2 of the hearing. I granted leave for Mr Dib Jr to appear and make submissions regarding costs the following morning via video-link.
On 6 October 2021, an application in existing proceedings was filed by the Applicant seeking that the Respondent pay to the costs thrown away for the vacated trial dates of 5 October to 8 October 2021 at an amount fixed by the Commission pursuant to s 548 and paragraph 4 of schedule 2 of the IR Act.
Legal Framework

Section 548 of the IR Act provides costs provisions for proceedings under the Anti-Discrimination Act 1991 (AD Act)
Costs provisions
(1) The provisions for costs in schedule 2 apply to a proceeding –
(a)heard by the commission under the Anti-Discrimination Act 1991; or
(b)for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a).
(2) If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.
Schedule 2 at para 2 states that other than as provided for under the schedule, each party usually bears own costs. Section 4 of the schedule deals with costs against a party in the interests of justice

Costs against party in the interests of justice

(1)      The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.
(2)      In deciding whether to award costs under subsection (1) the commission may have regard to the following –
(a)whether a party to the proceeding in acting in a way that unnecessarily disadvantages another party to the proceeding;
(b)the nature and complexity of the proceeding;
(c)the relative strengths of the claims made by each of the parties to the proceeding;
(d)the financial circumstances of the parties to the proceeding;
(e)anything else the commission considers relevant.

Paragraph 8 of sch 2 provides that if the Commission may order costs under a provision of the schedule, the costs may be awarded at any stage of the proceeding or after the proceeding has ended.
Section 545 of the IR Act provides the general power to award costs and like sch 2, para 2 states that a person must bear a person's own costs in relation to a proceeding before the court or commission. However, s 548 makes it clear that for Anti-Discrimination matters, the regime set out at sch 2 applies to the extent of any inconsistency.
Given that sch 2 clearly provides that in the usual course of things, the parties bear their own costs, the question for me is to consider whether the 'interests of justice' are such that they displace the general principle that the parties bear their own costs.
Paragraph (9)(1) of sch 2 requires that in the event the commission makes a costs order under a provision of the schedule, the commission must fix the costs if possible.
Rule 70 of the Industrial Relations (Tribunal) Rules 2011 provides as follows:
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 3; or
(b)for a proceeding before the full bench – the costs payable on the scale of costs for the District Court under the Uniform Civil Procedures Rules 1999, schedule 2; or
(c)for a proceeding before the court – the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedures Rules 1999, schedule 1; or
(d)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.
Costs sought by the Applicant
As a result of the vacation of the trial at the initiative of the Respondent, the Applicant says that she has suffered costs thrown away in four areas:
·Counsel's costs;
·Worker Law's professional costs;
·expert evidence costs; and
·Applicant's own costs.
The Applicant says that these are costs she will be liable for, in addition to the costs when the trial is relisted and proceeds.

Counsel's costs

Mr McGuire, of Counsel, had been briefed to appear for four days on behalf of the Applicant.
Mr McGuire's rate is set at $3,000 (incl GST) per day. In the event that the trial did not occupy the full four days, Mr McGuire would charge a half day fee of $1,650 (incl GST) per day for the remainder of the allocated four days.
As a result of the dates being vacated, after a first full day of hearing, the Applicant is liable for the costs of one full day and three half days. This amounts to a total of $8,250.
Worker Law's professional costs
Submissions addressed Worker Law's carriage of the matter and instructions and preparations for the trial. Worker Law submits that the matter necessitated both Counsel and a solicitor from Worker Law.
The costs agreement between the Applicant and Worker Law sets the hourly rate of a solicitor with Worker Law at $350 per hour. As a result of the Respondent's application to vacate, the costs associated with Worker Law said to be thrown away are
a. 3 hours in the drafting, preparation and finalisation of the Affidavit of Christian van Oeveren dated 5 October 2021, relevant to and prepared specifically for the application to vacate;
b. 7 hours in attendance at the hearing on 5 October 2021 from 10am to shortly after 5pm.
The costs outlined at [75] are said to amount to $3,500. It is submitted that Worker Law has incurred further costs associated with the costs application, through preparation of affidavits and attendance on 6 October 2021. The estimate for these additional costs is approximately two hours for preparation of affidavits and two hours for attendance at the commission.

Expert evidence costs

Dr Ashwaniut Garg, Psychiatrist, was booked to give expert evidence on 6 October 2021 called by the Applicant.
Dr Garg, through his provider, charges an attendance fee, even if the attendance does not proceed.
While an invoice for the attendance had not been provided at the time of the application for costs, the Applicant has been informed that the costs will be $3,300.00 (incl GST) and that this is a standard national rate.
Parties submissions on costs
Submissions of Applicant
The Applicant submits that the jurisdiction to award costs has been enlivened in the Commission, so far as it being in the interests of justice to make the order.
With reference to the events outlined above, it was submitted that Ms Wearne is 'on social security' and has incurred unnecessary costs because of the way in which the Respondent and/or his son or his son's firm of solicitors, have conducted the matter.
The Applicant submits that the test is simply whether the Commission considers it in the interests of justice that the order is made. It is a very common matter for interlocutory proceedings to involve separate costs order, independent of end result.
Submissions for Respondent
The Respondent agrees that the matter is complex. With regards to the merits of the matter, the Respondent says that the Applicant's case is weak. With regard to the financial circumstances of the parties, the Respondent is retired and is the sole financial provider for himself and his wife. He also provides for his daughter who is over 18 and not a dependent.
The Respondent's representative says that as soon as their office became aware that the trial would likely need to be vacated, all parties were placed on notice. As soon as the Respondent had the report of Mr Albassit, it was provided to the Commission and to the Applicant's representatives.
It was submitted that costs for this matter be reserved until after the final hearing. Reference was made to the general principle that costs follow the event or the success of the litigant and that if a litigant is unsuccessful, the respondent need not bear their costs.

Consideration

Paragraph 4(2) of sch 2 sets out matters which I may have regard to in deciding whether it is in the interests of justice to depart from the convention of each party bearing their own costs,[23] to make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to a proceeding.

(para 4(2)(a)) Whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding

[23] Industrial Relations Act 2016, schedule 2, paragraph 2.

Some of the history of the matter since it was referred to the Commission and the events of 5 and 6 October 2021 are set out above.
I find it implausible that it was not until 3 October 2021 when Mr Albassit's report was provided that either the Respondent or his representative determined that he would be unfit to attend the hearing two days later.
Firstly, the submissions were made about what Mr Dib Jr says is the Respondent's ongoing and deteriorating state of health. Mr Dib Jr knew as early as Friday 1 October that there was potential for the Respondent to be unable to attend the hearing as it was on this day that he urgently requested Mr Albassit to undertake the assessment of the Respondent.
Secondly, Dr Seton told the Commission that he had seen the Respondent on 27 September 2021 and that the Respondent had reported feeling 'stressed and anxious and he wasn't able to sleep…he was battling with a stress situation.[24]
[24] T1-12, ll19-27.
Essentially, while the Applicant was preparing to attend the hearing and her representatives were both making preparations for hearing and in fact, corresponding with the Respondent's representatives by way of sharing a proposed trial plan, Mr Dib Jr was making plans for the Respondent to undergo a mental health assessment to establish if it would be necessary to vacate the trial dates the following week.
At no time on Friday 1 October did the Respondent seek to update the Applicant or the Commission as to the possibility for the hearing to be unable to go ahead on Tuesday.
In fact, the first correspondence indicating that there may be a need to vacate the hearing dates was by way of an email on Sunday 3 October. That email made no mention of the Respondent's mental health issues or the potential for the hearing to be vacated on grounds of ill-health. That email only made reference to legal representation.
The only evidence before the Commission that can be given any weight, is that of Dr Seton who made himself available to answer questions about his diagnosis. Dr Seton was of the view that the Respondent would be able to provide instructions by phone. This would have allowed the matter to proceed, and for the matter to be heard, at least in part.
However, when this looked like it may be a possibility, Mr Dib Jr made submissions that led me to think that in the event I determined to go ahead with the part-hearing of the matter, legal representation would likely be withdrawn.
It is not unusual for a Respondent to be self-represented in matters before the Commission. However, in the absence of the Respondent, there was not even able to be a consideration of the matter proceeding without legal representation.
The Applicant has been placed in a situation where, in circumstances completely beyond her control, the matter was vacated with no confirmation as to when it may be able to be set down for hearing again.
(para 4(2)(b)) The nature and complexity of the proceeding
It is not in dispute that the proceeding is complex in nature. Both the Applicant and the Respondent have successfully applied to be legally represented on the grounds of the matter's complexity warrants legal representation.

(para 4(2)(c)) The relative strengths of the claims made by each of the parties to the proceeding

I am not in a position to determine the relative strengths of the claims made by each of the parties to the proceeding.

[100]While I have read the statement of facts and contentions and the Respondent's reply statement, I have not heard any evidence from the parties.
(para 4(2)(e)) The financial circumstances of the parties

[101]It is submitted that the Complaint is currently in receipt of social security benefits. The Respondent's representative says that the Respondent is retired and is the sole provided for himself and his wife but no submissions were made about his financial position.

Anything else the commission considers relevant
[102]Submissions were made by the Respondent that the matter of costs should be left until the final conclusion of the matter. However, I do not find this is satisfactory. It may be some significant time until the matter is able to be heard and I think that this is an occasion that warrants the awarding of costs in the interlocutory stages of a matter per sch 2, para 2 of the IR Act.

(para 4(2)(f)) Commission must fix costs if possible
[103]The Applicant has provided details of the costs thrown away given the inability of the Respondent to participate in the hearing.

[104]The Respondent had that application and made no submissions regarding the amounts of costs sought by the Applicant.
[105]While the IR Act specifies costs are to be fixed if possible, and if not, an order may be made for an assessment under the rules - I do not think that is necessary in this circumstance. The hearing was set down for four days. The parties had previously agreed that four days should be set down for the hearing. The trial plan provided by the Applicant indicated that the Applicant's evidence, witness evidence and expert evidence would take two days. The trial plan allowed for two days for the Respondent's case, however the Respondent never provided a trial plan as requested or replied to the Applicant's representative.
[106]The Respondent's witness list included four witnesses and the evidence was going to be taken viva voce. I have no reason to believe that the hearing would have concluded earlier than the time set down.
[107]For the reasons given above, I am granting the application for costs and order that the Respondent pay the Applicant's costs thrown away due to the hearing dates being vacated.
[108]The Respondent is to pay the Applicant costs in the amount of $15,050.00.

[2021] QIRC 425

13 December 2021