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Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2)[2025] ICQ 12

Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2)[2025] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2) [2025] ICQ 012

PARTIES:

ELIZABETH HITCHCOCK

(appellant)

v

STATE OF QUEENSLAND (OFFICE OF INDUSTRIAL RELATIONS)

(respondent)

AND

STATE OF QUEENSLAND (OFFICE OF INDUSTRIAL RELATIONS)

(appellant)

v

ELIZABETH HITCHCOCK

(respondent)

FILE NOs:

C/2024/44

C/2024/39

PROCEEDING:

Appeals

DELIVERED ON:

27 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

The question of costs was decided on written submissions without oral hearing

MEMBER:

Davis J, President

ORDER:

  1. 1.
    There be no order as to costs in Appeal C/2024/39.
  1. 2.
    There be no order as to costs in Appeal C/2024/44.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – COSTS – where a Deputy President of the Queensland Industrial Relations Commission made interlocutory orders – where both parties appealed the interlocutory orders – where the appellant Hitchcock abandoned two of her three grounds of appeal – where the appellant Hitchcock was unsuccessful on the remaining ground of her appeal – where the State sought no order as to costs of the appeal by the appellant Hitchcock – where the appellant State of Queensland raised two grounds of appeal – where one of those grounds was not properly particularised – where the other ground was futile as the interlocutory order had been complied with – where the appellant State of Queensland sought to discontinue the appeal – where the respondent Hitchcock objected – where the appeal was dismissed subject to the question of costs being determined – where by the Industrial Relations Act 2016 each party ordinarily bears their own costs – where a discretion to award costs arises upon proof of one or more of three jurisdictional facts – whether the jurisdictional facts arose – whether the State acted reasonably

Industrial Relations Act 2016 (Qld), s 545(1), s 545(2), s 557(1)

Industrial Relations (Tribunal) Rules 2011 (Qld), r 139(2)

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258, related

Hitchcock v State of Queensland (Office of Industrial Relations) (No 4) [2024] QIRC 270, related

Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock [2025] ICQ 003, related

COUNSEL:

The costs issues were determined without oral hearing

SOLICITORS:

Allan Bullock Solicitors for Elizabeth Hitchcock

C Christensen, Crown Solicitor for the State of Queensland

  1. [1]
    This is the determination of costs in two appeals which arose from interlocutory orders made by Deputy President Hartigan.[1]
  2. [2]
    One of those appeals was brought by the applicant in the principal proceedings, Ms Elizabeth Hitchcock[2] and one was brought by the respondent in the principal proceedings, the State of Queensland (Office of Industrial Relations).[3]  The relevant detail of the interlocutory judgments referred to in this Court’s judgment is explained in Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock.[4]
  3. [3]
    The State sought to discontinue its appeal, but Ms Hitchcock objected.  Her objection was on the basis that any discontinuance ought to be conditional upon the State paying her costs.  On 21 March 2025, it was ordered that the State’s appeal was dismissed and the question of costs reserved.[5]  The parties had already made extensive written submissions on the question of costs of the State’s appeal, and it was ordered that the costs of that appeal would be determined based on those written submissions without further oral hearing.
  4. [4]
    Ms Hitchcock’s appeal was dismissed on 21 March 2025, with directions as follows:
  1. “4.
    By 4.00 pm on 28 March 2025 the State shall file and serve:
  1. 1.
    An outline of submissions on the question of costs of appeal C/2024/44.
  1. 2.
    Any material in support of the submissions.
  1. 5.
    By 4.00 pm on 4 April 2025 Ms Hitchcock shall file and serve:
  1. 1.
    An outline of submissions on the question of costs of appeal C/2024/44.
  1. 2.
    Any material in support of those submissions.
  1. 6.
    Each party in appeal C/2024/44 shall have leave to file and serve an application for leave to make oral submissions on costs by 4.00 pm on 11 April 2025.
  1. 7.
    In the event no application for leave is made, the question of costs of appeal C/2024/44 will be determined upon a consideration of the written submissions and without oral submissions.”[6]
  1. [5]
    The State filed its outline of argument as to costs on 14 March 2025.  Ms Hitchcock did not file further submissions.  Ms Hitchcock relies upon submissions made by her solicitors in a letter of 2 January 2025.  That letter contains extensive submissions in support of a claim that the State should pay Ms Hitchcock’s costs of the State’s appeal on the indemnity basis. 
  2. [6]
    No further material was filed by either party and neither party made application for leave to make oral submissions.

Costs of Ms Hitchcock’s appeal: C/2024/44

  1. [7]
    The State was successful in Ms Hitchcock’s appeal.  The State does not seek costs of that appeal.
  2. [8]
    In the circumstances it is appropriate to make no order as to costs of Appeal C/2024/44.

Costs of the State’s appeal: C/2024/39

  1. [9]
    This is not a “costs follow the event” jurisdiction.  Section 545(1) of the Industrial Relations Act 2016 relevantly provides as follows:
  1. “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. [10]
    In order to obtain an order for costs, let alone indemnity costs, Ms Hitchcock must overcome the default position created by s 545(1), namely that each party bear their own costs.  She can only do that by falling within one of the three exceptions created by s 545(2), namely that:
    1. the appeal was brought vexatiously; or
    2. the appeal was brought without reasonable cause; or
    3. it would have been reasonably apparent to the State that the appeal had no reasonable prospects of success.
  2. [11]
    If one of the three jurisdictional facts giving rise to the exception to the general rule is established, then Ms Hitchcock must convince the court that the discretion to award costs ought to be exercised in her favour.
  3. [12]
    The interlocutory dispute which gave rise to both appeals concerned disclosure of documents by the State.  Resistance to disclosure was made upon a claim of legal professional privilege.
  4. [13]
    The grounds of the State’s appeal were:
  1. “1.
    That Deputy President Hartigan’s decision made on 19 November 2024, that the State of Queensland disclose to Ms Elizabeth Hitchcock a copy of Crown Law legal advice dated 2 August 2023 by 4pm on 19 November 2024, was affected by an error of law within the meaning of s 557(1)(a) of the Industrial Relations Act 2016 (Qld).
  1. 2.
    That Deputy President Hartigan’s decision made on 7 November 2024 for the State of Queensland to disclose to Ms Elizabeth Hitchcock unredacted copies of the briefing notes comprising exhibit PM-06 and PM-07 to the affidavit of Peter McKay of 25 June 2024, was affected by an error of law within the meaning of s 557(1)(a) of the Industrial Relations Act 2016 (Qld).”
  1. [14]
    It is submitted on Ms Hitchcock’s behalf that both grounds are defective.  Ground 1 states nothing more than that the decision was affected by legal error.  Ms Hitchcock’s submission ought to be accepted as the ground did not identify “concise grounds of the appeal”, as required by r 139(2)(c) of the Industrial Relations (Tribunal) Rules 2011.
  2. [15]
    Ground 2 concerns the disclosure of briefing notes.  It appears that unredacted briefing notes had already been disclosed to Ms Hitchcock by the time the Notice of Appeal was filed.
  3. [16]
    As earlier observed, the State’s appeal was abandoned.  Ms Hitchcock submits that the appeal was commenced vexatiously and without reasonable cause and/or had no reasonable prospects of success.
  4. [17]
    It is unnecessary to determine whether any of the jurisdictional facts enlivening the jurisdiction to order costs have arisen because the circumstances are so obviously ones where the appropriate order in exercise of discretion (if it arises) is that each party bear their own costs.
  5. [18]
    The State’s Notice of Appeal could be described fairly as a “holding” one.  In other words, it was filed to preserve the rights of the State while it determined whether or not it ought to challenge the Deputy President’s orders.  That is not a desirable course and is not contemplated by the Rules.
  6. [19]
    However, the circumstances justified that approach.
  7. [20]
    The Deputy President was in a difficult situation in that she had to deliver her ruling urgently.  This was because the trial of Ms Hitchcock’s principal application was due to commence.
  8. [21]
    The decision was delivered ex tempore over the telephone.  By the time the Notice of Appeal was filed, there was no written published decision.  That explains the very general and unspecified nature of the grounds of appeal.
  9. [22]
    Twenty-one days after the Notice of Appeal had been filed, the State sought to abandon it.  The Court should be able to rely upon parties to make considered and sensible decisions to abandon proceedings where the merits do not justify the matter proceeding.
  10. [23]
    It is somewhat ironic that Ms Hitchcock seeks to criticise the State in these circumstances.  Her Notice of Appeal alleged three grounds:
  1. “Pursuant to section 557(1)(a) of the Industrial Relations Act 2016 (Qld), the cross appellant, Elizabeth Hitchcock, appeals against part of the decision of Deputy President Hartigan published on 19 November 2024, Hitchcock v State of Queensland (Office of Industrial relations) (No 4) [2024] QIRC 270, on the following grounds:-
  1. 1.
    by Order 1 made on 19 November 2024, Deputy President Hartigan erred at law by dismissing paragraph 1 of the cross-appellant’s application made on 15 November 2024 by:
  1. (a)
    failing to find based on the uncontradicted and unchallenged evidence adduced by the cross appellant, the unredacted copy of Briefing Note PM-06 had passed into the public record;
  1. (b)
    failing to apply the principles from Hafele Australia Pty Ltd v Maggbury Pty Ltd [2000] QCA 397 (Hafele), (at paragraphs [17] to [21]) and, Queensland Local Government Superannuation Board v Allen [2016] QCA 325 (Allen), (at subparagraphs 69(a) to (h)), to find that the Respondent, the State of Queensland (Office of Industrial Relations) (privilege holder) had waived privilege over the whole of the legal advice from Crown Law dated 8 June 2023 (8 June 2023 legal advice);
  1. 2.
    by Order 1 made on 19 November 2024, Deputy President Hartigan erred at law by dismissing paragraph 3 of the cross-appellant’s application made on 15 November 2024 by:
  1. (a)
    not applying the principles from Hafele (at paragraphs [17] to [21]) and Allen (subparagraphs 69(a) to (h)), to find that the privilege holder had waived any privilege over the information provided to Crown Law by Gavin Gleeson to prepare the legal advice dated 2 August 2023, and referred to as “Attachment 2” of the unredacted copy of Briefing note PM-07;
  1. (b)
    finding that: “the mere reference to that material being provided and in the absence of any evidence that it was relied on by Mr McKay, I do not consider that the privilege with respect to … Attachment 2 has been waived” as the solitary basis that the Respondent could have impliedly waived privilege which finding was:
  1. (i)
    contrary to the evidence and, the law from the decisions of Hafele and Allen, that she was referred to by the applicant;
  1. (ii)
    inconsistent with Order 2 made on 19 November 2024 whereby she ordered the disclosure of the legal advice from Crown Law dated 2 August 2023 (Attachment 3) but did not order the disclosure of the information, or, alternatively, part of the information, that was relied on by Crown law to provide the legal advice dated 2 August 2023 namely, the information contained in Attachment 2;
  1. (iii)
    a finding made without having regard to the evidence from which she should have inferred that the information in Attachment 2 was considered and relied on by Mr McKay;
  1. 3.
    By failing to give adequate reasons explaining why the principles relied on by the applicant from Hafele (at paragraphs 32 to 36 of the Applicant’s Outline of Submissions filed 15 November 2024 – “Applicant’s Outline” and Allen (at paragraphs 37 to 46, Applicant’s Outline) were rejected or, alternatively, did not apply to the uncontradicted and unchallenged evidence adduced by the applicant, such that privilege had not been waived by the privilege holder in respect of:
  1. (a)
    the 8 June 2023 legal advice;
  1. (b)
    Attachment 2.” 
  1. [24]
    After receiving legal advice and sensibly considering her position (which, I infer is likely exactly the same process that the State followed), she abandoned grounds 1 and 2 and only challenged the decision on the limited basis identified by ground 3.
  2. [25]
    If the discretion has arisen to award costs in favour of Ms Hitchcock, I would in exercise of discretion not do so.  In my view, the State acted reasonably in all the circumstances and there has been no basis shown to disturb the default position established by s 545(1) of the Industrial Relations Act.

Orders

  1. [26]
    I make the following orders:
  1. 1.
    There be no order as to costs in Appeal C/2024/39.
  1. 2.
    There be no order as to costs in Appeal C/2024/44.

Footnotes

[1]Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258; and Hitchcock v State of Queensland (Office of Industrial Relations) (No 4) [2024] QIRC 270.

[2]Appeal C/2024/44.

[3]Appeal C/2024/39.

[4][2025] ICQ 003.

[5]Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock [2025] ICQ 003.

[6]Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock [2025] ICQ 003.

Close

Editorial Notes

  • Published Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2)

  • Shortened Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock (No 2)

  • MNC:

    [2025] ICQ 12

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    27 Jun 2025

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
Hafele Aust P/L v Maggbury P/L [2000] QCA 397
2 citations
Jump To
Cite 1 - [2000] QCA 397
Cite 2 - [2000] QCA 397
Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258
2 citations
Jump To
Cite 1 - [2024] QIRC 258
Cite 2 - [2024] QIRC 258
Hitchcock v State of Queensland (Office of Industrial Relations); State of Queensland (Office of Industrial Relations) v Hitchcock [2025] ICQ 3
4 citations
Jump To
Cite 1 - [2025] ICQ 3
Cite 2 - [2025] ICQ 3
Cite 3 - [2025] ICQ 3
Cite 4 - [2025] ICQ 3
Queensland Local Government Superannuation Board v Allen [2016] QCA 325
2 citations
Jump To
Cite 1 - [2016] QCA 325
Cite 2 - [2016] QCA 325

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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