Smith v State of Queensland (Queensland Health)
[2024] ICQ 19
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- Unreported Judgment
- Smith v State of Queensland (Queensland Health)[2024] ICQ 19
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Smith v State of Queensland (Queensland Health)[2024] ICQ 19
Smith v State of Queensland (Queensland Health)[2024] ICQ 19
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Smith v State of Queensland (Queensland Health) [2024] ICQ 19 |
PARTIES: | PAUL SMITH (appellant) v State of Queensland (Queensland Health) (respondent) |
FILE NO: | C/2024/22 |
PROCEEDING: | Appeal |
DELIVERED ON: | Ex tempore on 24 October 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 October 2024 |
MEMBER: | Davis J, President |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – COSTS – where the appellant was employed by the respondent – where the appellant’s employment was terminated following a disciplinary process as a result of behaviour at a work function – where the appellant applied for reinstatement in the Queensland Industrial Relations Commission (QIRC) – where the QIRC found the appellant’s dismissal unfair but concluded that the appellant’s reinstatement was impracticable – where the appellant alternatively sought compensation – where the QIRC ordered the respondent pay the appellant $47,582.97 – where the QIRC ordered the appellant’s application for costs under s 545 of the Industrial Relations Act 2016 (the IR act) be dismissed – where the appellant appeals the orders made under s 545 of the IR act – whether the appeal ought be allowed so as to order the respondent to pay the appellant’s costs of the application before the QIRC Industrial Relations Act 2016 (Qld), s 545 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21, related Smith v State of Queensland (Queensland Health) [2023] QIRC 296, related |
COUNSEL: | B Blond for the appellant A Freeman for the respondent |
SOLICITORS: | O'Reilly & Sochacki Lawyers for the appellant McCullough Robertson for the respondent |
- [1]This is an appeal against a decision of Deputy President Merrell not to award costs in favour of an applicant who successfully brought an unfair dismissal claim. That decision is Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 (the costs decision).
- [2]Mr Smith was employed at the Gold Coast Hospital and Health Service.
- [3]Mr Smith was the subject of disciplinary proceedings which arose from the Health Service’s Golden Gala event on 4 December 2020. It was alleged that Mr Smith’s conduct contravened the Queensland Public Service Code of Conduct. There were three separate instances alleged to have occurred at the Golden Gala.
- [4]The allegations arising from the Golden Gala were the subject of disciplinary proceedings which ultimately led to Mr Smith’s dismissal. He then filed a reinstatement application. That application was heard by Deputy President Merrell and determined. That was the decision of Smith v State of Queensland (Queensland Health) [2023] QIRC 296 (the substantive decision).
- [5]The Deputy President found that one of the allegations was partially substantiated, one was fully substantiated, and one was not substantiated.
- [6]Although the Deputy President found that Mr Smith had breached the Code of Conduct, he found that Mr Smith’s dismissal was unfair as it was not proportionate to the conduct alleged or as found.
- [7]As is often the position with cases such as these, reinstatement is impracticable. The Deputy President sought further evidence and submissions as to the appropriate orders.
- [8]Mr Smith decided not to pursue re-employment and pressed for compensation and costs. Compensation was ordered. There was a ground of appeal in relation to compensation but that is no longer pursued.
- [9]The Deputy President dismissed Mr Smith’s application for costs.
- [10]The Deputy President directed himself to s 545 of the Industrial Relations Act 2016 (the IR Act). That provides:
- “545General 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.”
- [11]The Deputy President then directed himself, by reference to various decisions, that the discretion to award costs only arises if one of the circumstances (jurisdictional facts) identified in s 545(2)(a) arises. That is undoubtedly correct.
- [12]The Deputy President made a number of findings, namely:
- the Department’s response to Mr Smith’s application for reinstatement was not vexatious[1];
- the Department’s response to Mr Smith’s application was not made without reasonable cause[2]; and
- it would not have been reasonably apparent to the Department that its response had no reasonable prospect of success[3].
- [13]Those three findings are either findings of fact or are matters of assessment and judgement of the type identified by the High Court in Norbis v Norbis[4].
- [14]The Deputy President went on to conclude that as none of the jurisdictional facts prescribed by s 545 were found, no discretion to award costs arose.
- [15]Not only can I identify no error in the reasoning of the Deputy President on the face of the judgment, the reasoning and conclusions are manifestly correct.
- [16]There was a genuine dispute between Mr Smith and the Department. That dispute concerned not only the underlying grounds for disciplinary action, but whether dismissal was the appropriate outcome. In order to determine those issues, the Deputy President heard evidence and assessed the various witnesses. He found against Mr Smith in relation to some of the allegations which have been made against him. In exercise of judgement, the Deputy President assessed the decision of dismissal as disproportionate to the conduct as found.
- [17]The Deputy President reasoned that the fact of him making that assessment, especially after hearing the witnesses, did not render the defence of the reinstatement application vexatious or without reasonable cause and nor does it mean that it would have been reasonably apparent that Mr Smith’s application for reinstatement would be successful.
- [18]Mr Blond, who appeared for Mr Smith on the appeal invited me to look behind the reasons and look to the substantive judgment. He submitted that:
- the findings in the substantive judgment supported a finding of at least one or more of the jurisdictional facts identified by s 545; and
- the reasons in the costs judgment are inadequate to explain the findings that no jurisdictional fact exists given the findings made in the substantive judgment.
- [19]Mr Blond pointed in particular to paragraph [309] of the substantive judgment. That is in these terms:
- “[309]In my view, even accepting that Mr Smith engaged in the conduct the subject of the three substantiated allegations (which are not the facts as I have found), my assessment would be that Mr Smith's dismissal was not proportionate to the conduct in which he was found by Ms Bloch to have engaged.”
- [20]Mr Blond submitted that in paragraph [309] of the substantive judgment the Deputy President found that Mr Smith’s dismissal was not proportionate even taking the Department’s case at its highest; that is assuming that all the acts which allegedly occurred at the Gala did occur and constituted breaches of the Code of Conduct.
- [21]That submission should be accepted.
- [22]Mr Blond then submitted that the finding at [309] of the substantive judgment was inconsistent with the finding in the costs judgment that there was reasonable cause to defend the reinstatement application.
- [23]That submission ought be rejected.
- [24]The decision maker decided to dismiss Mr Smith. The Department decided to defend the unfair dismissal application. The fact that the Deputy President found that dismissal was not proportionate is the Deputy President’s assessment of the evidence and that does not mean that the case was defended without reasonable cause. As the Deputy President specifically observed “The Department’s position about the issue of proportionality was arguable”.[5]
- [25]The costs judgment is brief. The substantive judgment was very detailed. It is made clear in the costs judgment that it is to be read in conjunction with the substantive judgment.[6]
- [26]There was no need for the Deputy President to repeat the detailed findings made in the substantive judgment. It is perfectly clear from the costs judgment why the application for costs was dismissed.
- [27]No error is shown and the appeal should be dismissed.
- [28]That raises questions as to the costs of the appeal. Section 545 of the IR Act applies to the appeal. The appeal really never had any reasonable prospects and that should have been apparent to Mr Smith. Therefore, the jurisdiction to award costs against Mr Smith arises.
- [29]However, the fact that the jurisdiction arises does not detract from the general policy that each party bears their own costs in the QIRC and the Industrial Court. That policy is still a relevant consideration in the exercise of the discretion which has arisen.
- [30]Mr Smith had legitimate complaint as to his dismissal. He was successful in obtaining remedies in his application. He had been put to legal expense in prosecuting his application and no doubt thought that he ought not be out of pocket. The application was not brought vexatiously. He sought legal advice and was represented by counsel.
- [31]In all the circumstances, it is appropriate to make no order as to costs in the appeal.
- [32]Orders:
- 1.Appeal dismissed.
- 2.There be no order as to costs for the appeal.
Footnotes
[1] Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 at [82].
[2] Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 at [83].
[3] Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 at [84].
[4] (1986) 161 CLR 513.
[5] Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 at [85].
[6] Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21 at [1],[6].