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Reh v State of Queensland (Department of Education)[2023] ICQ 16

Reh v State of Queensland (Department of Education)[2023] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Reh v State of Queensland (Department of Education) [2023] ICQ 16

PARTIES:

Reh, Ely May

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

FILE NO:

C/2023/23

PROCEEDING:

Appeal against decision of Commission

DELIVERED ON:

1 August 2023

HEARING DATE:

1 August 2023

MEMBER:

O'Connor VP

ORDER:

  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.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEAL – PUBLIC SERVICE APPEAL – APPLICATION FOR ORDER TO STOP BULLYING – GENERAL APPLICATION – APPLICATION TO RECOVER UNPAID WAGES – where the appellant instituted proceedings in the Queensland Industrial Relations Commission (QIRC) – where appellant suspended without remuneration as from 27 January 2022 until 30 June 2022 – where appellant disciplined with reduction in remuneration from QC2-04 to QC2-03 for a period of 18 weeks and a reprimand – where appellant filed appeal eleven days out of time – where appellant filed Application for an order to stop bullying, a General Application seeking various forms of relief and an Application to recover unpaid wages – where appellant appealed the decision of the QIRC to the Industrial Court of Queensland – where appellant sought to discontinue appeal – where respondent objected – where respondent sought an order for costs – whether costs should be ordered – appeal dismissed by consent – determined appellant to pay respondent's costs to be assessed by Industrial Registrar.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 545, s 557, s 562C

Industrial Relations Act 1999, s 335

Industrial Relations (Tribunals) Rules 2011, r 68, r 139

Uniform Civil Procedure Rules 1999, Schedule 1

CASES:

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284

Gambaro v Workers’ Compensation Regulator [2017] ICQ 005

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539

Kelsey v Logan City Council & Ors [2021] ICQ 011

Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300

Northern Territory v Sangare (2019) 265 CLR 164

O'Hara v State of Queensland [2020] ICQ 016

Reh v State of Queensland (Department of Education) [2023] QIRC 149

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35

APPEARANCES:

Mr E. Reh, for the Appellant.

Mr L. Grant, Counsel instructed by Crown Law for the Respondent.

Reasons for Decision

  1. [1]
    Ms Ely May Reh ('the Appellant') is employed as a Cleaner at the Gin Gin State School and at the Gin Gin State High School.  The Appellant is employed by the State of Queensland through the Department of Education ('the Department').
  2. [2]
    The Appellant filed four applications in the Queensland Industrial Relations Commission ('the Commission').  On 26 May 2023 the Commission released a decision in relation to all matters with the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the disciplinary action decision appealed against in Case No. PSA/2022/919 is confirmed.
  1. The Application for an order to stop bullying in Case No. B/2022/75 is dismissed.
  1. The General Application for various orders in Case No. B/2022/76 is dismissed.
  1. The Application to recover unpaid wages in Case No. B/2022/79 is dismissed.[1]
  1. [3]
    On 16 June 2023 the Appellant filed this appeal of the Commission's decision in the Industrial Court of Queensland ('the Court').
  1. [4]
    Section 557 of the Industrial Relations Act 2016 ('the IR Act') sets out the basis upon which a person may seek to appeal from a decision of the Commission.  So far as is relevant, that section provides:
  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. [5]
    It is not in contention that the Appellant is aggrieved by the Commission's decision and accordingly has standing to bring the appeal under s 557 of the IR Act.

Grounds of Appeal

  1. [6]
    In her application to appeal the Appellant seeks the following:
  1. Does the Queensland Industrial Commission have the Authority to process this case (HCA 11 2015)?
  2. If Fair Work Commission has the Authority to process this case, the case needs to [sic] transferred or restarted at FWC.
  3. Is tacit acquiescence (if provided in supplied Documents) by the other party enforceable?
  4. If tacit acquiescence is valid at Queensland Industrial Commission 6) to 9) must be re‑assessed.
  5. [sic] Setting aside the suspension decision - Regarding alleged refusal of getting COVID‑19 vaccine
  6. Removing the disciplinary action from the Appellant's personal file regarding alleged refusal to get vaccinated
  7. Recovering unpaid wages - Regarding alleged refusal to get vaccinated
  8. Bullying - regarding to enforce to get vaccinated without providing evidence that the vaccine is safe.
  1. [7]
    The Appellant relies on the matters set out in her appeal and written submissions filed on 14 July 2023 seeking the following orders:

B/2022/79   (a) The discipline action should be withdrawn

   (b) the personal file should be cleared regarding the disciplinary action

   (c) All withhold salary repaid.

B/2022/75  Refer to [72] [sic].

B/2022/76  All withhold salary repaid.

   As we should have been exempted from the COVID-19 mandate, we should have been able to work and would therefore ask that the withhold [sic] salaries are repaid.

  1. [8]
    In her submissions the Appellant summarises her objections to the orders issued in the decision of 26 May 2023 and believes that 'nearly all the points mentioned in the decision are based on ignoring facts listed in this summary and the evidence presented'.[2]
  2. [9]
    The Appellant submits that the work place is not in a 'high risk' and therefore she does not need to comply with the COVID-19 mandate.[3]
  3. [10]
    The Appellant did not seek leave to appeal on grounds other than an error of law or excess or want of jurisdiction. 
  4. [11]
    The Respondent submits an appeal is a statutory right and is limited to the grounds conferred by the IR Act.  The Appellant bears the onus to demonstrate an error of law or jurisdictional error in the Commission's Decision.
  5. [12]
    In view of the nature of the Appellant's material, the Respondent refers to the Commission's Decision and outlines why it does not demonstrate any legal or jurisdictional error.[4]
  6. [13]
    The Appellant's submissions challenge the lawfulness and reasonableness of Employment Direction 1/21 and Employment Direction 1/22 (the Employment Directions).
  7. [14]
    By email dated 31 July 2023 the Appellant sought to discontinue the appeal by filing a Form 27 and for the following reasons:

Dear Registrar

On Friday afternoon we received the Response from the other Party.  As "High Court of Australia" decisions and Constitutional matters must be processed we would like to ask for leave to discontinue the process at QIRC, as QIRC has no authority to process constitutional matters, and to cancel or, if this is not possible, to delay the hearing set for tomorrow 1. August.  Form 27 for discontinuing the Appeal is attached.  Please be reminded that the Hearing is set for 1. August, tomorrow, which would as well be too short notice to the Submission of the other party, as it is impossible for us to get additional legal advice on the new issues brought up by the other party, within 1 working day.

The submission of the other party was done by by [sic] the living man/woman "K Watson" who/whom we could not verify as a Representative of the other party.  We would like to request the full name of "K Watson", the address where he/she can be contacted "verification of his authority to represent the other party either from QIRC or from himself.  If he, himself provides the information it must be in a real letter with wet ink signature or with an identifiable digital signature and his personal public key.  If we are not receiving this information until the Date known as "Eighth August 2023" we will take it as a tacit agreement that "K Watson" does not exist and/or has had not the authority to represent the other party and the living man/woman known as Lachlan Grant was making a false statement.

  1. [15]
    The Respondent objected to the Appellant's request to discontinue proceedings, pursuant to rule 68(3) of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules').  In particular, the Respondent sought to be heard on why the Court should, in dealing with the Appellant's written request to discontinue per r 68(6) of the IR Rules, consider it appropriate to discontinue the proceedings on a term that an order for costs be made requiring the Appellant or the Appellant's representative to pay costs incurred by the Respondent in the proceedings pursuant to s 545(2)(a) or (b) of the IR Act.
  2. [16]
    The matter proceeded before me on the basis that the appeal was, by consent, dismissed with the question of costs the only issue to be determined.
  3. [17]
    Section 545 of the IR Act confers on the Court a power to order the payment of costs incurred in the proceedings, relevantly:

545  General power to award costs

  1. (1)
    A person must bear the person's own costs in relation to a proceeding before the court or commission.
  1. (2)
    However, the court or commission may, on application by a party to the proceeding, order -
  1. (a)
    a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied -
  1. (i)
    the party made the application or responded to the application vexatiously or without reasonable cause; or
  1. (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
  1. [18]
    As to the quantum of costs, the IR Rules provide, relevantly:

70  Costs

  1. (1)
    This rule applies if the court or commission makes an order for costs under section 545 of the Act.
  1. (2)
    The court or commission, in making the order, may have regard to -
  1. (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
  1. (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
  1. (c)
    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.
  1. [19]
    The Respondent relies on the grounds that the application was made without reasonable cause;[5] and it would have been reasonably apparent that the application had no reasonable prospect of success.[6]  The Respondent did not advance an argument that the application was commenced vexatiously.
  2. [20]
    For the purposes of s 545(2)(a)(i) of the IR Act, whether an application is commenced vexatiously or without reasonable cause is to be assessed objectively.  The test is to be applied when the application is made.
  3. [21]
    In MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland,[7] Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
  4. [22]
    The principles to be applied in applications such as this were considered by Martin J in Wanninayake v State of Queensland (Department of Natural Resources and Mines).[8]
  5. [23]
    That case concerned the predecessor of s 545 of the IR Act - s 335 of the Industrial Relations Act 1999.  His Honour wrote:

It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her.  Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her, but that is not a reason to deny a successful party its costs.  The appeal was never going to succeed.  It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.

Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded.  It follows that the application was made without reasonable cause, and so the jurisdiction is enlivened.

The award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.[9]

  1. [24]
    More recently, in Kelsey v Logan City Council & Ors,[10] Davis J identified some of the principles which apply to the operation of s 545 of the IR Act:
  1. (a)
    The starting point is that each party bears their own costs.
  1. (b)
    A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
  1. (c)
    The assessment of "reasonable cause" in s 545(2)(a)(i) is:
  1. (i)
    an objective assessment; and
  1. (ii)
    made considering the facts existing as at the time of the institution of the proceedings, here the appeal.[11]
  1. [25]
    The Respondent submits that the Appellant has prosecuted her claims without any attempt to thoughtfully engage with the precedent of the jurisdiction and has instead doggedly prosecuted a claim premised on, in her own words, 'beliefs' and 'comprehension' of fact and law.[12]
  2. [26]
    The Appellant failed to articulate, in any meaningful way, any grounds why the Deputy President's discretion should be upset nor were any grounds raised to enliven the Court's appellate jurisdiction; the application to appeal did not identify any error of law or any excess or want of jurisdiction; and the appeal did not comply with r 139 of the IR Rules because it did not state the "concise grounds of appeal".[13]
  3. [27]
    In exercising the discretion to award costs, I have considered the fact that the Appellant was self-represented.  However, as the authorities suggest, that alone should not be a basis upon which a successful party should be denied their costs.[14]
  4. [28]
    As the High Court observed in Northern Territory v Sangare:[15]

… In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party.  That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation.  The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant‑in‑person.[16]

  1. [29]
    The Appeal was brought to the Court on a footing which was misconceived and doomed to fail.  The Appeal advanced by the Appellant was on any view, 'so lacking in merit or substance as to be not fairly arguable'.[17]
  2. [30]
    The discretion to award costs has been enlivened.
  3. [31]
    The accepted rationale for making a costs order is that a measure of indemnity should be conferred upon the Respondent for the costs it has been obliged to incur in responding to a proceeding which is "objectively recognisable as one which could not succeed at the time when the application was made".[18]
  4. [32]
    I see no discretionary reason to withhold the making of an order for costs in favour of the Respondent and accordingly, an order for costs is therefore appropriate.

Orders

  1. [33]
    The Court orders as follows:
  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.

Footnotes

[1] Reh v State of Queensland (Department of Education) [2023] QIRC 149.

[2]  Appellant's submissions filed 14 July 2023, [1].

[3]  Ibid, [2].

[4]  Respondent's submissions filed 28 July 2023, [4]-[6].

[5]  Section 545(2)(a)(i) of the IR Act.

[6]  Section 545(2)(a)(ii) of the IR Act.

[7]  (2000) 164 QGIG 370.

[8]  [2015] ICQ 35.

[9]  Ibid, [13]-[15].

[10]  [2021] ICQ 011.

[11] Kanan v Australian Postal and Telecommunications Union [1992] FCA 539.

[12]  Submissions of the Respondent filed 28 July 2023, [26].

[13] O'Hara v State of Queensland [2020] ICQ 016, [49].

[14] Gambaro v Workers’ Compensation Regulator [2017] ICQ 005. 

[15]  (2019) 265 CLR 164. 

[16]  Ibid, [27].

[17] Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284;  Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300, [28].

[18] MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370 at 371.

Close

Editorial Notes

  • Published Case Name:

    Reh v State of Queensland (Department of Education)

  • Shortened Case Name:

    Reh v State of Queensland (Department of Education)

  • MNC:

    [2023] ICQ 16

  • Court:

    ICQ

  • Judge(s):

    O'Connor VP

  • Date:

    01 Aug 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
DeGiorgio v Dunn (No.2) (2005) 62 NSWLR 284
2 citations
Jump To
Cite 1 - (2005) 62 NSWLR 284
Cite 2 - (2005) 62 NSWLR 284
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Kanan v Australian Postal and Telecommunications Union [1992] FCA 539
2 citations
Jump To
Cite 1 - [1992] FCA 539
Cite 2 - [1992] FCA 539
Kelsey v Logan City Council [2021] ICQ 11
2 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
2 citations
Jump To
Cite 1 - (2005) 63 NSWLR 300
Cite 2 - (2005) 63 NSWLR 300
MIM Holdings Ltd v AMWU (2000) 164 QGIG 370
2 citations
Jump To
Cite 1 - (2000) 164 QGIG 370
Cite 2 - (2000) 164 QGIG 370
Northern Territory v Sangare (2019) 265 CLR 164
2 citations
Jump To
Cite 1 - (2019) 265 CLR 164
Cite 2 - (2019) 265 CLR 164
O'Hara v State of Queensland [2020] ICQ 16
2 citations
Jump To
Cite 1 - [2020] ICQ 16
Cite 2 - [2020] ICQ 16
Reh v State of Queensland (Department of Education) [2023] QIRC 149
2 citations
Jump To
Cite 1 - [2023] QIRC 149
Cite 2 - [2023] QIRC 149
Wanninayake v Queensland [2015] ICQ 35
2 citations
Jump To
Cite 1 - [2015] ICQ 35
Cite 2 - [2015] ICQ 35

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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