Chen v Gold Coast Hospital and Health Service
[2024] QCA 241
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- Unreported Judgment
- Appeal Determined (QCA)
- Chen v Gold Coast Hospital and Health Service[2024] QCA 241
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Chen v Gold Coast Hospital and Health Service[2024] QCA 241
Chen v Gold Coast Hospital and Health Service[2024] QCA 241
SUPREME COURT OF QUEENSLAND
CITATION: | Chen v Gold Coast Hospital and Health Service [2024] QCA 241 |
PARTIES: | VICTOR HSI TAI CHEN (appellant) v GOLD COAST HOSPITAL AND HEALTH SERVICE (respondent) |
FILE NO/S: | Appeal No 837 of 2024 Appeal No C/2023/2 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal from the Industrial Court (Qld) |
ORIGINATING COURT: | Industrial Court of Queensland – [2024] ICQ 1 (Hartigan DP) |
DELIVERED ON: | 26 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 May 2024 |
JUDGES: | Mullins P, Bond JA and Callaghan J |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO COURT OF APPEAL – where the appellant applied to the Industrial Relations Commission for general protections alleging that adverse action was taken against him by the respondent during the course of his employment and an application for reinstatement arising from the termination of the appellant’s casual employment with the respondent within its cardiology unit – where the applications were ordered to be heard together – where the appellant filed an interlocutory application and sought an order to join another proceeding – where the appellant sought an order that the solicitors for the respondent recuse themselves – where the appellant sought an order for further and better discovery in relation to the employment details of another interventional cardiologist – where the applications for joinder, recusal and discovery orders were dismissed by the Commission – where the appellant appealed the decisions of the Commission to the Industrial Court of Queensland and the appeal was dismissed – whether the Industrial Court made errors of law or acted in excess of, or without, jurisdiction in dealing with the appellant’s appeals to that Court Industrial Relations Act 2016 (Qld), s 407, s 554, s 557, s 564, s 565 |
COUNSEL: | The appellant appears on his own behalf H L Blattman KC, with P M Zielinski, for the respondent |
SOLICITORS: | The appellant appears on his own behalf MinterEllison for the respondent |
- [1]MULLINS P: Dr Chen who is an interventional cardiologist has two proceedings ordered to be heard together in the Queensland Industrial Relations Commission: GP/2020/27 and TD/2021/20. For ease of reference they will be referred to as the dismissal proceedings. Proceeding GP/2020/27 is an application for general protections made by Dr Chen alleging that adverse action was taken against him by the respondent during the course of his employment. Proceeding TD/2021/20 (the reinstatement application) is an application for reinstatement arising from the termination of Dr Chen’s casual employment with the respondent within its cardiology unit. Dr Chen last worked for the respondent on 10 December 2020 and the respondent asserts his casual employment was terminated on 21 May 2021.
- [2]In August 2022, the hearing of the dismissal proceedings was listed to commence on 23 November 2022. Dr Chen filed a further amended statement of facts and contentions in the dismissal proceedings on 14 September 2022. The amendments included allegations that on or around 23 April 2020 the employment by the respondent of Dr Broyd in the same or substantially the same role being performed by Dr Chen or, alternatively, the employment by the respondent of Dr Vo in the same or substantially the same role being performed by Dr Chen amounted to the respondent taking adverse action. The respondent was unsuccessful in opposing those amendments and, as a result, the hearing dates for the dismissal proceedings commencing on 23 November 2022 were vacated: Chen v Gold Coast Hospital and Health Service (No 1) [2022] QIRC 422. Dr Chen was legally represented for the hearing on 17 October 2022 that resulted in this decision.
- [3]On 14 November 2022 Dr Chen who was no longer legally represented filed an interlocutory application for orders in relation to the dismissal proceedings. On 1 December 2022 Commissioner Pidgeon conducted a mention of the dismissal proceedings by telephone to consider the interlocutory application. Dr Chen sought an order to join another proceeding he had in the Commission which is referred to as the public service appeal (PSA/2020/449) with the dismissal proceedings (the joinder application). The public service appeal is an appeal against the respondent’s refusal on 5 November 2020 of Dr Chen’s conversion application to convert from casual to permanent employment. The joinder application was dismissed by the Commissioner on 1 December 2022 for reasons that were given orally during the hearing (the joinder decision). Dr Chen also sought an order that MinterEllison as the solicitors for the respondent in the dismissal proceedings recuse themselves (the recusal application) which was also dismissed on 1 December 2022 for reasons that were given during the oral hearing (the recusal decision). The Commissioner subsequently published a decision that was shown as being delivered on 18 January 2023 that explained what had transpired on the mention on 1 December 2022 and set out the ex tempore reasons for dismissing the joinder and the recusal applications from the transcript of the mention: Chen v Gold Coast Hospital and Health Service [2023] QIRC 12.
- [4]The third order sought by Dr Chen on 1 December 2022 was for further and better discovery in relation to the employment details of another interventional cardiologist Dr Vo and other staffing information. The Commissioner reserved the decision and delivered judgment on 3 January 2023 in which the application was dismissed: Chen v Gold Coast Hospital and Health Service [2023] QIRC 2 (the discovery decision). A further order was made in that decision to the effect that the Commission would hear the parties as to costs of the joinder and recusal applications.
- [5]By an application to appeal filed on 4 January 2023, Dr Chen appealed the joinder, recusal and discovery decisions to the Industrial Court of Queensland (Industrial Court). The appeal was dismissed by Hartigan DP: Chen v Gold Coast Hospital and Health Service [2024] ICQ 1 (the reasons). It is from that decision that Dr Chen appeals to this Court pursuant to s 554(1) of the Industrial Relations Act 2016 (Qld) (the Act).
- [6]Dr Chen also filed an application to adduce further evidence on 1 May 2024. The application was supported by his affidavit filed on 1 May 2024 that exhibited an earlier affidavit of Dr Chen affirmed on 5 February 2024 and filed in this Court in appeal number 13440 of 2023. The application to adduce further evidence also relates to the affidavit of Ms Willcocks affirmed on 5 May 2021 in the reinstatement application and the affidavit of Dr Meng Tan affirmed on 23 June 2022 in the dismissal proceedings. The respondent did not oppose leave to adduce the further evidence as the respondent relied on some of the material in making its submissions. Leave was given at the hearing of the appeal to the appellant to adduce this further evidence.
Relevant legislation
- [7]Subsections (1) and (2) of s 554 of the Act provide:
- “(1)A person aggrieved by a decision of the court, or the full bench constituted by the president and 2 or more other members, may appeal to the Court of Appeal on the ground of—
- error of law; or
- excess, or want, of jurisdiction.
- Also, a person aggrieved by a decision of the full bench constituted by the president and 2 or more other members may appeal against the decision to the Court of Appeal, with the Court of Appeal’s leave, on a ground other than—
- error of law; or
- excess, or want, or jurisdiction.”
- [8]In the Act, the term “court” is used to refer to the Industrial Court: see s 407 of the Act. Section 557 of the Act concerns an appeal from the Commission to the Industrial Court. Relevantly, subsections (1) and (2) of s 557 provide:
- “(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—
- error or law; or
- excess, or want, of jurisdiction.
- 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—
- error of law; or
- excess, or want, of jurisdiction.”
- [9]Section 564 of the Act sets the time limit for appeals for each level of appeal. Under s 564(1), an appeal against a decision must be started, as required under the Rules, within the appeal period. The tribunal to which the appeal is made (which relevantly includes the Industrial Court) is empowered under s 564(2) to allow an appeal to be started within a longer period. The appeal period is defined in s 564(3) and relevantly means the period within 21 days after:
- “(a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision;”
- [10]As it is necessary to deal with Dr Chen’s argument based on s 565 of the Act, s 565 provides:
“If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—
- must give leave if it is satisfied it is in the public interest to do so; and
- may not give leave other than under paragraph (a).”
Preliminary matters
- [11]Dr Chen’s notice of appeal to this Court contains 36 grounds of appeal. At the outset, it must be discerned whether the grounds fall within the restrictions on appeals from the Industrial Court to this Court. The meaning of s 554(1) is plain. If a person is aggrieved by a decision of the Industrial Court, the appeal to this Court is only on the ground of error or law or excess, or want, of jurisdiction. Dr Chen asserted, however, that s 565 of the Act enabled him to apply for leave to appeal on grounds other than those specified in s 554(1) and this Court must give leave, if it is satisfied it is in the public interest to do so.
- [12]The problem with that argument is that s 565 applies to s 554 where an application for leave to appeal is permitted by s 554. That is found in s 554(2) which applies where a person aggrieved by a decision of the full bench constituted by the president and two or other members may appeal against that decision to this Court with the Court’s leave on a ground other than error of law or excess, or want, of jurisdiction. Section 554(2) does not apply to Hartigan DP’s decision as her Honour’s decision was a decision of the Industrial Court and not the full bench. It follows that this Court will therefore not address in detail any of the grounds of appeal advanced by Dr Chen which are not based on an error of law or an excess, or want, of jurisdiction. This Court has no jurisdiction to do so.
- [13]Dr Chen had success in the Industrial Court in relation to the dismissal in the Commission of PSA/2022/449 and O'Connor VP ordered that PSA/2020/449 be adjourned to the Industrial Registry pending the hearing and determination of GP/2020/27 and TD/2021/20: Chen v State of Queensland (Queensland Health) [2022] ICQ 15. There was no appeal against that decision. In fact, Dr Chen’s contention before O'Connor VP (set out at [36] and [43] of the decision) was that the appropriate course that should have been followed in the Commission was to adjourn PSA/2022/449, pending the resolution of the dismissal proceedings. That contention was accepted by O'Connor VP (at [49] of the decision).
- [14]It is relevant to relate the further proceedings that followed O'Connor VP’s decision as the outcomes of those proceedings were referred to in the course of this appeal. Subsequently, Dr Chen applied to O'Connor VP seeking orders in relation to the costs of that successful appeal and another order in relation to costs. That application was dismissed and Dr Chen was ordered to pay the respondent’s costs of defending the application for costs together with the costs of the respondent’s application for costs on an indemnity basis: Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 21.
- [15]Dr Chen appealed to this Court against the costs ordered made by O'Connor VP: Chen v State of Queensland (Queensland Health) [2024] QCA 42 (COA decision). That appeal was unsuccessful. The parties were invited to file written submissions on the costs in relation to that appeal. Dr Chen was ordered to pay the costs of that appeal to the respondent assessed on an indemnity basis: Chen v State of Queensland (Queensland Health) [No 2] [2024] QCA 63 (COA costs decision).
Grounds of appeal
- [16]The notice of appeal does not state “briefly and specifically” the grounds of appeal: see r 747(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld). It is not a proper ground of appeal to assert, as Dr Chen has done in ground 5, that there was an error of law or excess, or want, of jurisdiction without identifying the error or the excess, or want, of jurisdiction. Many of the numbered paragraphs in the notice of appeal are submissions rather than a statement of a ground of appeal. On consideration of the content of the notice of appeal and the submissions made by Dr Chen in writing and orally, the matters asserted by Dr Chen which arguably can be characterised as grounds of appeal within s 554(1) of the Act are very limited:
- The Commissioner and Hartigan DP were bound as a matter of law to order recusal of MinterEllison where there had been no prior disclosure by barrister Y to Dr Chen of her real or perceived conflict of interest (grounds 9 and 15).
- It was an error of law to require Dr Chen to seek an extension of time to appeal against the joinder and recusal decisions, when the written reasons published by the registry showed they were delivered on 18 January 2023 (ground 17).
- [17]Matters raised by Dr Chen that arguably can be framed as grounds of appeal but that do not constitute grounds of appeal within s 554(1) of the Act are:
- The matter recorded by Hartigan DP in [33] of the reasons was “transcribed verbatim” from the respondent’s submissions before the Industrial Court and was in error in finding that other than a reference to a written advice (of Mr Massy), Dr Chen had not particularised in any further detail the relevant information that he asserted was confidential, as Dr Chen in oral submissions had detailed the topics covered in Mr Massy’s advice that were referred to in barrister Y’s advice to him dated 2 September 2020 (grounds 11-13).
- Hartigan DP should have inferred that barrister Y disclosed Dr Chen’s confidential information to MinterEllison (ground 14).
- It was an error to characterise (at [15] of the reasons) Dr Chen’s submission that he was on holidays at the time the decision was issued and the expiration of the appeal period was close to Christmas as not an adequate explanation for the delay in filing the application to appeal against the recusal and joinder orders (ground 18).
- The respondent and MinterEllison “manifestly improperly seek a biased structure of carriage of matters from the QIRC and ICQ such that GCHHS and QH will escape jurisprudent review and judicial consideration express ‘matter of law’ whether ‘fair and reasonable’ employer responses to applications and public service appeals to convert to permanent employment submitted by the Appellant since 18 February 2018 and re-submitted by the Appellant’s union the Australian Salaried Medical Officers’ Federation, Australian Medical Association on 28 March 2019” (footnotes omitted) (ground 20).
- The Commission and the Industrial Court erred in finding that the employment details of Dr Vo in 2022 and 2023 were not directly relevant to the dismissal proceedings (grounds 26, 27 and 29-31).
- [18]There are some observations which should be made in respect of subparagraphs (a)‑(e) set out in the preceding paragraph. As to subparagraph (a), Dr Chen is incorrect in asserting that Hartigan DP transcribed part of [33] of the reasons “verbatim” from the respondent’s submissions. It is apparent that Hartigan DP accepted the respondent’s submissions on that point but that is not sufficient by itself to constitute a ground of appeal. The balance of subparagraph (a) raises an error of fact. Subparagraphs (b), (c) and (e) also assert errors of fact. Subparagraph (d) asserts a lack of good faith on the part of the respondent and its solicitors in relation to multiple applications before the Commission and the Industrial Court that are outside the issues that arise on the appeal against the joinder, recusal and discovery decisions.
Joinder and recusal decisions
- [19]The Commissioner’s reasons for refusing the joinder included that O'Connor VP had adjourned the public service appeal to the registry pending the outcome of the dismissal proceedings and, even though there were factual matters common to all three matters, the questions to be answered in the dismissal proceedings were different to the questions to be answered in the public service appeal. In addition, the Commissioner considered that, if joinder occurred, it may mean that it took longer to hear all matters because of the different tests to be applied.
- [20]The Commissioner’s reasons for not making the recusal order in respect of MinterEllison were that the Commissioner did not consider the Commission had the capacity to make the order, there were proper avenues for Dr Chen to pursue his concerns about the professionalism or conduct of the lawyers, and it did not appear on the material before the Commissioner that the respondent’s legal representatives should be requested to recuse themselves.
Discovery decision
- [21]The Commissioner set out at [4] of the discovery decision paragraphs 4-7 of the particulars in the schedule attached to the interlocutory application about what documents (or information) Dr Chen was seeking by way of further and better discovery. The Commissioner quoted at [5] of the discovery decision paragraphs 29‑31 of the particulars in the same schedule that summarised Dr Chen’s position. He was seeking further and better discovery from the respondent of the employment details and intentions for temporary interventional cardiologist Dr Vo and in respect of an upcoming vacancy of “a funded 0.3 FTE SMO interventional cardiologist position”. The schedule asserted that the discovery was of evidence directly relevant to whether the Department was (and is) fully staffed and whether there was/is an ongoing operational need for Dr Chen to be employed by the respondent.
- [22]The Commissioner recorded the exchanges that occurred in the hearing with Dr Chen in respect of the evidence he had of the vacant FTE or permanent FTEs that he claimed were available. The Commissioner concluded that Dr Chen had formed a view based on material available to him and was seeking the discovery for the purpose of having the respondent confirm or deny his claims. The respondent resisted the further and better discovery on the basis it was a request for information and not a request for discovery. The Commissioner accepted that argument (at [19] of the discovery decision). The Commissioner found (at [21]) that the availability or otherwise of permanent FTE roles was not a matter directly relevant to the dismissal proceedings, as if he were reinstated it would be to the casual roster. The Commissioner found (at [23]) that the current employment details or future intentions for 2023 regarding Dr Vo were not directly relevant to the matters in issue between the parties in the dismissal proceedings which pertained to circumstances which occurred some years earlier.
The reasons
- [23]As the orders in the joinder and recusal decisions were made orally on 1 December 2022, s 564(3)(a) of the Act applied and the period of “within 21 days” commenced on 1 December 2022 had expired on 22 December 2022 which was before the application to appeal was filed on 4 January 2023 (at [9] and [13] of the reasons). In considering whether an extension of time should be granted, Hartigan DP assessed the prospects of success in respect of the recusal decision (at [17]-[40]) and the prospects of success in respect of the joinder decision (at [41]-[47]).
- [24]The basis for the recusal application was that Dr Chen’s former solicitors had briefed his former barrister (who will be referred to as barrister Y) between 26 August and 3 September 2020 in respect of Dr Chen’s matter. Barrister Y had been previously engaged by MinterEllison on behalf of the respondent in an unrelated matter in the Industrial Court that was reserved on 24 August 2020 of Lam v Gold Coast Hospital and Health Service [2021] ICQ 10. Dr Chen alleged that his confidential information which was the legal advice given to him by barrister Y was relayed to MinterEllison (but no evidence was adduced by Dr Chen in the hearing before the Commission to support that serious allegation).
- [25]Hartigan DP (at [25]-[26] of the reasons) found that the Commissioner made an error in finding that the Commission did not have power to order the recusal of MinterEllison, as the Commission may, pursuant to s 539(b)(ii) of the Act, direct “by whom the parties may be represented” for proceedings. Notwithstanding that error, the Commissioner had also determined that Dr Chen did not establish a basis for the relief he was seeking in respect of MinterEllison. Hartigan DP noted (at [32]) that MinterEllison had never acted for Dr Chen and (at [33]), other than a reference to a written legal advice (from barrister Mr Massy that was provided to barrister Y), Dr Chen did not adduce any evidence of the information that he asserted was confidential or provide a basis to assert the information was confidential. It was noted (at [34]) that “there is no evidence on the record that MinterEllison has possession of that information”. Hartigan DP also noted (at [37]) that Dr Chen had not established that there was a real risk that the confidential information was relevant to the dismissal proceedings or there was a real risk of the misuse of the confidential information. It was concluded (at [38]) that there was therefore no basis for the orders sought by Dr Chen restraining MinterEllison from acting for the respondent in relation to his matters and therefore there were poor prospects of success on the recusal application.
- [26]Hartigan DP set out (at [42] of the reasons) the Commissioner’s reasons for the dismissal of the joinder application and found (at [45]-[47]) that the Commission was correct to consider that the order of O'Connor VP was a relevant consideration in the exercise of the discretion not to make the joinder order and that the arguments raised by Dr Chen had little relevance whilst the order of O'Connor VP had taken effect.
- [27]Hartigan DP therefore (at [48] of the reasons) refused to grant an extension of time to file the appeal in respect of the dismissal of the recusal and joinder applications.
- [28]Dr Chen had limited his appeal to the Industrial Court against the discovery decision to the category of documents with respect to the current employment details and future employment intentions regarding Dr Vo. Dr Chen challenged the Commissioner’s finding of lack of relevance. Hartigan DP found (at [55] of the reasons) that Dr Chen did not establish that the continuing or potentially continuing employment of Dr Vo in 2022 and 2023 was relevant to the determination as to whether the dismissal of Dr Chen in 2021 was unfair. Hartigan DP found (at [56]) that Dr Chen did not establish that the documents about any intention to make Dr Vo a permanent employee of the respondent some time in 2023 was relevant to the reinstatement application.
- [29]At the hearing of the appeal before Hartigan DP, Dr Chen raised matters that were not included in his application to appeal the discovery decision, namely he sought discovery with respect to “[MANAGERIAL RESPONSES] SAC 1 investigation in 2021”. As the Commission was not asked to rule on the documents in the terms that Dr Chen articulated on the appeal to the Industrial Court, Hartigan DP concluded (at [62] of the reasons) that the Commission could not be said to have committed an error of law or exceeded its jurisdiction.
- [30]The other aspect of the appeal against the disclosure decision that was before Hartigan DP was the direction made by the Commissioner about hearing the parties as to the costs of the joinder and recusal applications.
- [31]The Commissioner had explained (at [28]-[29]) of the discovery decision that the directions order in respect of seeking written submissions with regard to the costs of the joinder and recusal applications was to accommodate the respondent’s indication that it was seeking costs with regard to those applications.
- [32]Hartigan DP found (at [67] of the reasons) that the Commissioner’s direction about hearing from the parties with respect to costs accorded with the exercise of the general power contained in s 451(2)(a) of the Act to give directions about the hearing of the matter.
Was there any error of law made by the Industrial Court?
- [33]Dr Chen’s submissions on the refusal of Hartigan DP to order the recusal of MinterEllison are misconceived. His focus is on the perceived conflict of interest of barrister Y who was acting for the respondent instructed by MinterEllison immediately before she was briefed to give Dr Chen advice in respect of his disputes with the respondent when there was no disclosure by barrister Y to Dr Chen of the fact that she had only recently been briefed to appear for the respondent in the Industrial Court instructed by MinterEllison. The issue of recusal, however, depends on Dr Chen’s assertion that barrister Y would have shared with MinterEllison the confidential information to which she was privy because of acting for Dr Chen. When Dr Chen produced no evidence whatsoever to support that assertion, it was inevitable that his recusal application would fail. It was a serious allegation and the bare facts outlined above would not support the inference that such sharing of confidential information had occurred in the absence of relevant evidence. Dr Chen argued that the inference should be drawn when the respondent and MinterEllison failed to adduce evidence to rebut his allegation that there was sharing of his confidential information. There was no evidence adduced by Dr Chen that called for rebuttal evidence.
- [34]Dr Chen fails in showing that the Commissioner and Hartigan DP were bound as a matter of law to order the recusal of MinterEllison.
- [35]The decisions on the joinder and recusal applications were made at the conclusion of the hearing on 1 December 2022 for which Dr Chen was present by telephone and remained present for the giving of the ex tempore reasons by the Commissioner. The appeal period therefore commenced on 1 December 2022 in accordance with s 564(3) of the Act with the announcement of the decisions at the hearing. The subsequent publication of the ex tempore reasons in a written decision by the registry on 18 January 2023 did not alter the date of commencement of the appeal period. Hartigan DP made no error of law in applying s 564(3)(a) of the Act.
- [36]To the extent that Dr Chen’s grounds of appeal can be characterised as grounds within s 554(1)(a) of the Act, he does not succeed on his appeal.
Did the Industrial Court act in excess of, or without, jurisdiction?
- [37]None of the matters sought to be raised by Dr Chen as either grounds of appeal or submissions in support of his grounds of appeal demonstrate in any way that the Industrial Court acted in excess of, or without, jurisdiction in dealing with his appeals to that Court.
Other matters
- [38]One of the orders that Dr Chen sought in his notice of appeal was for stays and suspension of any and all costs orders made by the Commission and the Industrial Court for the appellant to pay costs. That relief does not relate to the decision of Hartigan DP which is the subject of this appeal and therefore will not be considered on this appeal.
Orders
- [39]The respondent sought an indemnity costs order in its favour for the reasons that the appeal had no prospects of success; Dr Chen did not advance specific grounds of appeal or made any effort to identify an error of law in the reasons but used the grounds of appeal to make “convoluted and repetitive” submissions that caused additional expense to the respondent; some grounds of appeal were irrelevant; and Dr Chen made serious and groundless allegations particularly against the respondent, barrister Y and MinterEllison.
- [40]Even though Dr Chen is self-represented, he must be taken to have notice of s 554(1) of the Act that constrained the grounds that could be pursued on the appeal to this Court. The fact that Dr Chen misinterpreted s 565 of the Act does not alter the limited grounds on which the Act permits an appeal to this Court. The way Dr Chen advanced his appeal was to repeat the arguments that he had put before the Commissioner and Hartigan DP without regard to the limitations on an appeal to this Court. Dr Chen chose to continue with his appeal after he received the respondent’s written submission lodged with this Court on 20 March 2024 that explained the nature of the appeal to this Court. To the extent that the decision of Hartigan DP dealt with the exercise of discretion on matters of practice and procedure, it was also difficult to appeal successfully: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
- [41]Consistent with the principles found in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234 that can be applied to the pursuit of an appeal that is doomed to fail, this is an appropriate case for an order for indemnity costs in this Court after Dr Chen’s appeal to the Industrial Court was unsuccessful for the reasons that have been endorsed in this Court, subject to one qualification.
- [42]One of the reasons advanced by the respondent for an order for indemnity costs is that the appeal had no prospects of success. That is inconsistent with the briefing of senior counsel by the respondent in addition to Mr Zielinski of counsel who had appeared successfully for the respondent before the Commissioner and Hartigan DP. It is a matter for the respondent who it chooses to represent it, but if it seeks to brief senior counsel in addition to junior counsel for an appeal that was never going to succeed, it is difficult to see the justification for any indemnity costs order to extend to senior counsel. The order for indemnity costs that should be made in the first instance against the appellant should exclude the costs of senior counsel (the default order). As this exclusion was not raised with the parties during the hearing of the appeal, both parties should be permitted to make submissions in respect of that exclusion within 10 days of the publication of these reasons. If no submissions are made, the default order will apply.
- [43]The orders which should be made are:
- Appeal dismissed.
- Subject to orders 3 and 4, the appellant must pay the respondent’s costs of the application and the appeal on the indemnity basis, excluding the costs of senior counsel.
- Each party is given leave to file and serve written submissions (not exceeding two A4 pages) on the exclusion of the costs of senior counsel from the order for indemnity costs in order 2 within 10 days of the publication of these reasons.
- If no submissions are filed in the Court within the time permitted by order 3, order 2 will take effect. If either party or both parties file a submission within the time permitted by order 3, the question of whether the costs of senior counsel should be excluded from the indemnity costs order in order 2 will be reserved to be decided on the papers.
- [44]BOND JA: For the reasons expressed by the President I would order the appeal to be dismissed.
- [45]On the question of costs, I agree that it is appropriate to order that the appellant pay the respondent’s costs on the indemnity basis, and for the reasons expressed by the President.
- [46]I do not, however, share her Honour’s views concerning the exclusion of the costs of senior counsel, or the need to receive any submissions on the question. I would not regard a decision to advance the submission concerning the lack of appeal prospects as necessarily inconsistent with the decision to brief of senior counsel. I would simply order that costs be assessed on the indemnity basis.
- [47]CALLAGHAN J: I agree with Mullins P.