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Golding v Sippel and The Laundry Chute Pty Ltd (No 2)[2021] ICQ 18

Golding v Sippel and The Laundry Chute Pty Ltd (No 2)[2021] ICQ 18

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Golding v Sippel and The Laundry Chute Pty Ltd (No 2) [2021] ICQ 018

PARTIES:

PERLITA GOLDING

(appellant)

v

IAN SIPPEL

(first respondent)

THE LAUNDRY CHUTE PTY LTD

(second respondent)

FILE NO/S:

C/2021/5

PROCEEDING:

Appeal

DELIVERED ON:

15 September 2021

HEARING DATE:

Decided on written submissions without oral hearing

MEMBER:

Davis J, President

ORDERS:

The respondents pay the appellant’s costs of the appeal, including the costs reserved by orders on 14 April 2021, 5 May 2021 and 7 May 2021, to be assessed on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1 as if it were a matter brought in the Supreme Court.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – RELEVANT CONSIDERATIONS GENERALLY – where judgment was given in favour of the appellant against the respondents in the Queensland Industrial Relations Commission (the QIRC) for compensation under the Anti-Discrimination Act 1991 (the ADA) – where the appellant appealed to the Industrial Court of Queensland against the quantum of the award of compensation and against the failure of the QIRC to fix the costs – where the appellant was successful in having the compensation substantially increased on appeal – where the appellant was unsuccessful in disturbing the costs order – where the Industrial Relations Act 2016 provides for considerations in costs orders under the ADA – where costs are awarded if it is in the interests of justice to do so – where the appellant seeks costs on an indemnity basis – where the appellant seeks to have the costs fixed – where the only evidence of quantum of costs is of costs calculated on an indemnity basis – whether it was unreasonable for the respondent to resist the appeal

Anti-Discrimination Act 1991 (Qld), s 133
Industrial Relations Act 2016, s 545
Industrial Relations (Tribunal) Rules 2011, r 70

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Di Carlo v Dubois [2002] QCA 225, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, cited
Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 074, related
Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14, related
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, cited
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, followed

COUNSEL:

Written submissions prepared by JE Murdoch QC and T O'Brien for the appellant

Written submissions prepared by Mr Sippel on his own behalf

No submissions received for The Laundry Chute Pty Ltd

SOLICITORS:

Shine Lawyers for the appellant

The respondent, Mr Sippel, on his own behalf

No submissions filed for The Laundry Chute Pty Ltd

  1. [1]
    The appellant, who successfully appealed[1] the quantum of a compensation award made in her favour in the Queensland Industrial Relations Commission (the QIRC), seeks costs of the appeal on an indemnity basis against the respondents.

Background

  1. [2]
    Ms Golding brought an application to the QIRC claiming compensation for contravention of the Anti-Discrimination Act 1991 (the ADA).  The QIRC found serious breaches of the ADA by Mr Sippel committed against Ms Golding over a lengthy period.  The Industrial Commissioner found both harassment and discrimination and awarded compensation against Mr Sippel, the perpetrator, and The Laundry Chute Pty Ltd (The Laundry Chute) who was vicariously liable for Mr Sippel’s behaviour.[2]
  2. [3]
    Compensation was assessed by the Industrial Commissioner at:
    1. (a)
      economic loss - $15,960.75
    2. (b)
      “general damages” - $30,000.00
    3. (c)
      “aggravated damages” - $5,000.00.
  3. [4]
    Ms Golding sought an order for costs of the proceedings in the QIRC to be fixed at $60,000.  That was refused by the Industrial Commissioner on the basis that there was no evidence before her upon which she could assess the costs.  She ordered Mr Sippel and The Laundry Chute to pay Ms Golding’s costs agreed, or assessed on the Magistrates Court’s scale.
  4. [5]
    Ms Golding appealed on a number of grounds the upshot of which is:
  1. economic loss had been calculated under a wrong principle.  The Industrial Commissioner assessed the income which Ms Golding would have earned had the harassment and discrimination not occurred and she had been able to continue her employment with The Laundry Chute rather than more broadly assessing her loss of income;
  2. the award of compensation described as “general damages” was manifestly inadequate;
  3. the award of compensation described as “aggravated damages” was manifestly inadequate;
  4. the Industrial Commissioner ought to have fixed the costs of the proceedings at $60,000.
  1. [6]
    The appeal was listed for hearing on 15 April 2021.
  2. [7]
    On 14 April 2021, the appeal was adjourned due to Mr Sippel’s ill health.  The costs of the adjournment were reserved.  The new date for the appeal was set as 14 May 2021.  Indications were that Mr Sippel was planning to appeal against the orders of the QIRC.  Neither he, nor The Laundry Chute had filed an appeal.  The matter was mentioned before me on 5 May.  Mr Sippel indicated that he was contemplating an appeal, had retained lawyers and was conferring with them on 6 May.  The matter was adjourned for further mention on 7 May 2021.  The costs of the mention on 5 May 2021 were reserved.
  3. [8]
    On 7 May 2021, the matter was mentioned again.  There was no appearance for either Mr Sippel or The Laundry Chute.  Ms Golding appeared by counsel instructed by solicitors.  The appeal remained listed for hearing on 14 May 2021.  The costs of the appearance on 7 May 2021 were reserved.
  4. [9]
    The appeal was heard on 14 May 2021.
  5. [10]
    On 6 August 2021, I allowed the appeal and made the following orders:

“1. The appeal is allowed to the extent of:

  1. (a)
     setting aside the award of $15,960.75 for economic loss;
  1. (b)
     substituting as the award for economic loss the sum of $28,702.60;
  1. (c)
     setting aside the award of $30,000 for general damages;
  1. (d)
     setting aside the award of $5,000 for aggravated damages;
  1. (e)
     substituting for the award of general damages and aggravated damages the sum of $130,000.
  1. The appeal is otherwise dismissed.
  1. I will hear the parties on the question of costs of the appeal.”
  1. [11]
    As can be seen from the orders made on the appeal, I did not disturb the order made by the Industrial Commissioner concerning the costs of the proceeding in the QIRC.
  2. [12]
    On 19 August 2021, written submissions were filed by Ms Golding on the question of costs. 
  3. [13]
    On 23 August 2021, I made the following directions:

“1. The respondent Mr Sippel file and serve any written submissions on costs by 4pm on 6 September 2021.

2. In the absence of any application by the respondent to extend time for filing and serving his written submissions, and in the absence of any application by either party filed before 4pm on 13 September 2021 for leave to make oral submissions on costs, the issue of costs will be determined on the written submissions without oral hearing;

  1. Both parties have liberty to apply.”
  1. [14]
    Neither Mr Sippel nor The Laundry Chute have filed written submissions pursuant to the directions.  However, on 21 May 2021, shortly after the hearing of the appeal and before judgment, Mr Sippel sent an email to my Associate and the solicitors for Ms Golding in these terms:

“Response to costs as ordered

The respondent does not accept the the costings amount awarded against due to the following

1) There is no supporting documentation as to how the amounts were calculated and the end figure arrived at.

2) There is no supporting documentation to support that there was a cost agreement between Shine Lawyers and Ms Golding put in place.

3) In relation to appeal costs, the document (Cost Disclousure (sic) and Conditional Costs Agreement) submitted by the Ms Goldings Representative’s is headed ‘Employment Law - Litigation New South Wales’ not Qld. The Agreement is signed and dated 14/5/21 only by Ms Golding and not Shine Lawyers. There fore I do not accept that this agreement is valid. The appeal was instigated by Ms Golding and her Representative’s and not myself, therefore any costs of the appeal should be worn by Ms Golding”[3]

  1. [15]
    I have taken the contents of Mr Sippel’s email into account on the question of costs of the appeal.

Jurisdiction to award costs

  1. [16]
    Section 545 of the Industrial Relations Act 2016 (the IR Act) provides a general power (with certain limitations) to award costs.  However, s 545 does not apply to proceedings heard by the QIRC or the Court under the ADA.  Section 548 of the IR Act provides:

548 Costs provisions

  1. (1)
     The provisions for costs in schedule 2 apply to a proceeding—
  1. (a)
     heard by the commission under the Anti-Discrimination Act 1991; or
  1. (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).
  1. (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.”
  1. [17]
    Schedule 2 of the IR Act provides:

1 Definitions for schedule

In this schedule—

commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti-Discrimination Act 1991, includes the court.

proceeding means a proceeding mentioned in section 548.”

And:

2 Each party usually bears own costs

Other than as provided under this schedule, each party to the proceeding must bear the party’s own costs for the proceeding.”

And:

4 Costs against party in interests of justice

  1. (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.
  1. (2)
     In deciding whether to award costs under subsection (1) the commission may have regard to the following—
  1. (a)
     whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;
  1. (b)
     the nature and complexity of the proceeding;
  1. (c)
     the relative strengths of the claims made by each of the parties to the proceeding;
  1. (e)
     the financial circumstances of the parties to the proceeding;
  1. (f)
     anything else the commission considers relevant.”

And:

9 Fixing or assessing costs

  1. (1)
     If the commission makes a costs order under a provision of this schedule, the commission must fix the costs if possible.
  1. (2)
     If it is not possible to fix the costs having regard to the nature of the proceeding, the commission may make an order requiring the costs to be assessed under the rules.[4]
  1. (3)
     The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.”
  1. [18]
    Rule 70 of the Industrial Relations (Tribunal) Rules 2011 provides:

70 Costs

  1. (1)
     This rule applies if the court or commission makes an order for costs under section 545 of the Act.[5]
  1. (2)
     The court or commission, in making the order, may have regard to—
  1. (a)
     
  1. (c)
     for a proceeding before the court—the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
  1. (d)
     any other relevant factor.
  1. (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.”

Do the interests of justice require an order for costs to be made against Mr Sippel and The Laundry Chute?[6]

  1. [19]
    The question must be considered by reference to the matters prescribed by paragraph 4(2) of Schedule 2 of the IR Act.
  2. [20]
    Ms Golding did not succeed in her appeal against the refusal of the QIRC to fix the costs of the proceedings before it.  However, in all other respects, she was successful.
  3. [21]
    The appeal was such that the engagement of legal representatives was clearly justifiable.  The appeal in relation to the claim for economic loss raised the consideration of legal principles governing the assessment of such loss.  The appeal in relation to the assessment of compensation equivalent to general damages raised questions as to when appellate interference is justified in an assessment of damages based on the manifest inadequacy of an award.  This question was complicated somewhat because the Industrial Commissioner was faced with a body of comparative awards made in Queensland courts and tribunals and another body of comparative awards made in the Federal jurisdiction where significantly larger amounts of compensation had been awarded.
  4. [22]
    As the judgment on appeal demonstrated, Ms Golding had a strong case which she was well justified pursuing on appeal. 
  5. [23]
    While there is no evidence as to Mr Sippel’s financial position, there was evidence before the QIRC that Ms Golding was of limited financial means.
  6. [24]
    Ms Golding has achieved a substantial compensation award as a result of what can only be described as appalling conduct against her by Mr Sippel over a lengthy period of time.  Given that she has been successful in her appeal, it is in the interests of justice that Mr Sippel and The Laundry Chute should bear the costs of the appeal, at least on a party/party basis.

Should the costs be assessed on an indemnity basis and fixed?

  1. [25]
    The court should fix the costs if possible.[7]  Ms Golding has filed two affidavits of Justin Penafiel, a solicitor employed by Shine Lawyers.  He swears that the total costs of the appeal are $60,028.10.
  2. [26]
    The court only has evidence enabling it to fix costs on an indemnity basis.  No evidence of party/party costs is before the court.  It then follows that if indemnity costs are not justified, the appropriate order is to award costs to be assessed pursuant to the Rules.
  3. [27]
    Ms Golding points to the following factors which she says should result in the conclusion that it is in the interests of justice that she recover her costs on an indemnity basis.  In particular:
  1. the proceedings were complicated;
  2. she has been awarded a significant sum for compensation for serious conduct by Mr Sippel;
  3. she is impecunious;
  4. the case was a test case and therefore it was in the interests of justice for her to bring the case;
  5. costs were increased by Mr Sippel’s conduct of the appeal as his conduct necessitated the adjournment of the hearing of the appeal and the mentions on 5 and 7 May;
  6. the compensation award ought not be eroded by an award of costs that did not indemnity her fully.
  1. [28]
    Ms Golding’s reference to her case being a “test case” concerns the way the Industrial Commissioner dealt with differing comparative awards.  The Industrial Commissioner found as follows:

“[264] Second, it is necessary to bear in mind the prevailing community standards as to the value of intangibles such as enjoyment of life, and the right to a safe workplace. Ascertaining those community standards and expectations would necessarily require considering decisions which dealt with comparable circumstances and losses.”

And later:

“[279] Community expectations and standards as to sexual harassment and discrimination have changed dramatically in recent years. So too has the monetary value attributed to the loss of dignity suffered by victims. Mental health impact holds a place of increasing significance amongst the community.

[280] Despite that, in Queensland the monetary value attached to psychological and other nontangible losses arising from discrimination has been slightly less than in the Federal jurisdiction.

[281] At first blush, there is no reason why a person in Queensland ought to receive less compensation for an identical injury suffered interstate. On the other hand, community standards are nuanced, and espoused in part by other decisions. I would be remiss to ignore the monetary values attributed to similar losses in previous Queensland cases.”

And later:

“[291] I have borne in mind the intangible losses which I have found Ms Golding has suffered, including the evidence of Dr Relan.[8] In considering the prevailing community standards as to the monetary value attached to such losses, I have also noted where those losses fall in comparison to some other previous decisions. I have subsequently determined that the appropriate award of general damages to address those losses is $30,000.”[9]

  1. [29]
    The question which arose was whether awards of compensation under the Queensland legislation should be substantially different from awards under the equivalent Federal legislation.  As can be seen from the judgment on appeal, I took guidance from the awards that had been made in the Federal jurisdiction.
  2. [30]
    Although the test to apply is the statutory one under paragraph 4 of Schedule 2 of the IR Act, guidance can be taken from those cases that have considered the grant of costs on an indemnity basis in general civil litigation.
  3. [31]
    There are numerous decisions where circumstances have been identified justifying an award of costs on an indemnity basis.  In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd[10] and Colgate Palmolive Co v Cussons Pty Ltd,[11] attempts were made to identify categories of cases where the making of an order for indemnity costs is justified.  However, the central principle guiding the exercise of the discretion was stated by the New South Wales Court of Appeal in Rosniak v Government Insurance Office[12] and adopted by the Court of Appeal in Di Carlo v Dubois:[13]

[38] … The court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity. Any shifts to a general or common rule that indemnity costs should be the order of the day is a matter for the legislature or the rule maker.”

  1. [32]
    Despite the fact that Ms Golding was successful in the appeal to the extent of having the award for general damages and aggravated damages almost quadrupled, it does not follow that it was unreasonable for Mr Sippel to defend the appeal.  The Industrial Commissioner carefully considered the evidence and made detailed factual findings which were not challenged on appeal.  She carefully considered the Queensland decisions which she followed.  It is at least arguable that she was obliged to follow the Queensland decisions leaving any correction to be made on appeal.[14]
  2. [33]
    While the respondents should have conceded the ground of appeal concerning the assessment of compensation for economic loss, that played a fairly minor part in the appeal.
  3. [34]
    In my view, it is in the interests of justice to order that Mr Sippel and The Laundry Chute pay Ms Golding’s costs on the standard basis calculated under the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.  Neither the adjournment nor the mentions of the appeal were necessitated through any fault of Ms Golding and she should recover the costs of those on the same basis.  If there is any difference in the calculation of costs under the scale as between the Supreme and District Courts, the costs here should be assessed as if the matter was litigated in the Supreme Court.

Order

  1. [35]
    The respondents pay the appellant’s costs of the appeal, including the costs reserved by orders on 14 April 2021, 5 May 2021 and 7 May 2021, to be assessed on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1 as if it were a matter brought in the Supreme Court.

Footnotes

[1] Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14.

[2] Section 133 of the Anti-Discrimination Act 1991 provides for the vicarious liability of the employer.

[3] Reproduced faithfully complete with obvious errors.

[4] A reference to the Industrial Relations (Tribunal) Rules 2011.

[5] By force of Schedule 2, the Rules also apply to s 548.

[6] Industrial Relations Act 2016, Schedule 2, paragraph 4.

[7] Industrial Relations Act 2016, Schedule 2, paragraph 9.

[8] An expert witness called by Ms Golding.

[9] Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 074.

[10] (1988) 81 ALR 397.

[11] (1993) 46 FCR 225.

[12] (1997) 41 NSWLR 608.

[13] [2002] QCA 225 at [38].

[14] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

Close

Editorial Notes

  • Published Case Name:

    Golding v Sippel and The Laundry Chute Pty Ltd (No 2)

  • Shortened Case Name:

    Golding v Sippel and The Laundry Chute Pty Ltd (No 2)

  • MNC:

    [2021] ICQ 18

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    15 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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