Chen v Queensland Health[2024] QCA 42

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Dalton JA and the orders her Honour proposes.
2. [2]
   DALTON JA:  Dr Chen is a cardiologist.  He worked as a Visiting Medical Officer at the Gold Coast Hospital and Health Service (GCHHS) on a casual basis.  He asked for his employment to be converted to a permanent basis and there then ensued a highly litigious battle between him and the respondent on behalf of GCHHS in the Industrial Relations Commission and Industrial Court.  Although there have been several hearings on discrete matters, and several decisions made as to various disputes between the parties, that industrial litigation is not yet at an end.  Each of Dr Chen and the State of Queensland have enjoyed mixed success to date.
3. [3]
   Until the subject matter of the current appeal was raised in the Industrial Court, Dr Chen has acted with the assistance of solicitors and barristers.  His current appeal concerns what is probably one of the more minor points litigated between the parties to date, a question of costs.  His lack of representation in the current appeal, and before Vice President O'Connor below, is unfortunate because Dr Chen cannot separate the subject matter which was before O'Connor VP from the remainder of the issues in the litigation.  In reality, the matters before Vice President O'Connor, and before this Court, are very circumscribed and their legal resolution is very simple.  The appeal must be dismissed for the reasons which I now give.

Totality of Industrial Dispute

4. [4]
   I will give a brief history of the entire dispute between Dr Chen and the respondent.  Disputes between the GCHHS and Dr Chen began when he applied to convert his casual employment as a Visiting Medical Officer to permanent employment.  His request for conversion was refused.  He appealed that decision to the Industrial Relations Commission.  As a result of the appeal, in March 2020 the Commission ordered that the conversion request be returned to the decision-maker for reconsideration.
5. [5]
   In the meantime, a disciplinary investigation had been commenced against Dr Chen.  Complaints were made against his treatment of a scrub-nurse during an angiogram.  This behaviour was said to have occurred on 31 January 2020.  In April 2020, Queensland Health determined that the allegations in the disciplinary process had been substantiated.  Dr Chen asserted in the Industrial Relations Commission that GCHHS only progressed the disciplinary matter in response to his success in the Industrial Relations Commission in March 2020.  However, this issue has been determined against him.^[1]  There has been no appeal from that finding.
6. [6]
   In August 2020, the respondent imposed a penalty of reprimand having regard to the outcome of the disciplinary process.  Dr Chen appealed to the Industrial Relations Commission against the August decision imposing the reprimand, but he did not appeal against the April decision which found that the complaints against him were substantiated.^[2]  On the penalty appeal, the Industrial Relations Commission allowed the appeal; set aside the disciplinary penalty; declared that Dr Chen’s conduct did not meet the threshold for misconduct under s 187(1)(b) of the Public Service Act 2008 (Qld), and returned the matter to the decision-maker to undertake a fresh penalty determination.^[3]  That decision was delivered on 23 July 2021.
7. [7]
   The respondent did not comply with the March 2020 order to revisit the conversion application; it awaited the outcome of the disciplinary process.  Dr Chen made a new appeal to the Commission to compel the respondent to revisit his conversion application.  In September 2020, after the August 2020 decision to reprimand Dr Chen, but before that penalty was set aside, Dr Chen’s application concerning GCHHS’s failure to reconsider his conversion request (PSA/2020/225) was set down for a conference in the Commission, and GCHHS undertook to reassess his conversion application.  It did, delivering a written decision on 5 November 2020, refusing the request for conversion.
8. [8]
   On 23 December 2020, Dr Chen filed a General Protections Application in the Commission alleging that he had now been removed from the cardiology roster altogether because he had filed Appeal PSA/2020/225.  The next day he filed an appeal against the decision of 5 November 2020 (PSA/2020/449).  In March 2021, Dr Chen filed an unfair dismissal claim in the Commission.
9. [9]
   On 28 October 2021, the Commission dismissed Dr Chen’s appeals in PSA/2020/225 and PSA/2020/449.  They were held not to be competent under the Public Service Act; the decision did not involve a consideration of the merits of those appeals.^[4]
10. [10]
    Dr Chen accepted that the Commissioner was correct to dismiss PSA/2020/225.  However, he appealed the Commissioner’s decision in relation to PSA/2020/449.  The appeal came before Vice President O'Connor in the Industrial Court.  Vice President O'Connor allowed the appeal.  He adjourned the hearing of PSA/2020/449 to the Registry to be determined after the other proceedings then pending between Dr Chen and the State of Queensland in relation to Dr Chen’s employment (general protection and unfair dismissal).  There is and was no appeal against that decision of Vice President O'Connor.
11. [11]
    In the two pending matters there has been: (a) an application made by Dr Chen for solicitors acting for the respondent to be enjoined from acting in the proceeding, and (b) an application by Dr Chen for further discovery.  Both those applications have been dismissed.^[5]  Dr Chen has appealed from both dismissals, and the appeals have been dismissed.^[6]  The two substantive matters have not been finally heard and determined.

The Present Appeal

12. [12]
    The present appeal to this Court is from a decision not mentioned in the above summary: a decision of Vice President O'Connor on the costs of the appeal described at [10] above.  Section 554(1) of the Industrial Relations Act 2016 (Qld) provides that a person aggrieved by a decision of the Industrial Court may appeal to this Court on the grounds of error of law, or alternatively excess or want of jurisdiction.
13. [13]
    Almost a year after his success before Vice President O'Connor, Dr Chen made an application seeking: (a) to compel the State of Queensland to pay his costs of that appeal, and (b) an order that the legal representatives acting for the State of Queensland repay costs they had charged their client to the taxpayers of Queensland.
14. [14]
    The second limb of the costs application is not one known to law.  Vice President O'Connor was bound to dismiss it, and I will not deal further with it in these reasons.  Vice President O'Connor also dismissed the first limb of the application.  Further, he made an indemnity costs order in favour of the respondent in relation to the costs application.  I interpret Dr Chen’s amended notice of appeal as appealing against the failure to make an order in his favour, and against the order made in the respondent’s favour.

Costs in the Industrial Court

15. [15]
    Section 545 of the Industrial Relations Act 2016 (Qld) provides as follows:

“General power to award costs

3. (1)
   A person must bear the person’s own costs in relation to a proceeding before the court or commission.

3. (2)
   However, the court or commission may, on application by a party to the proceeding, order –

3. (a)
   a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied –

3. (i)
   the party made the application or responded to the application vexatiously or without reasonable cause; or

3. (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

…”

16. [16]
    O'Connor VP made a comprehensive collection of case law authority dealing with s 545.  The effect of that authority can be shortly stated.  The general rule as to costs is contained in s 545(1).  If, and only if, a party can show circumstances within s 545(2), a discretion arises in the Commission to make a costs order.

Dr Chen’s Costs Below

17. [17]
    Dr Chen sought a costs order in relation to an appeal he had made, so it was necessary for him to show that the State of Queensland either responded vexatiously to that appeal; responded without reasonable cause to that appeal, or responded when it ought to have been apparent to the State of Queensland that it had no reasonable prospect of success in defeating the appeal, s 545(2)(a).
18. [18]
    O'Connor VP found that there was simply no evidence, or anything else, which would indicate that the State of Queensland responded to the appeal vexatiously or without reasonable cause.  On the material before this Court, that finding was correct.  Below, and on this appeal, Dr Chen wished to argue that the whole course of conduct towards him by the respondent since he first applied to become a permanent employee has been vexatious.  He apparently could not understand that this was not a relevant question, either before O'Connor VP, or on this appeal.
19. [19]
    Next, O'Connor VP considered whether or not the State of Queensland’s defence of the order which had been made in its favour (dismissing PSA/2020/449) was a response which it ought to have known had no reasonable prospect of success.  That was a very hard argument to make in circumstances where the argument advanced by the respondent before O'Connor VP was essentially the same argument which had been accepted by the Commissioner below.  As well, the point concerned the construction of a new legislative scheme brought about by significant amendments to the Public Service Act and the Industrial Relations Act, about which there had been no previous decisions.  The Commissioner read the new legislative scheme resulting from the repeal of s 207 of the Public Service Act; the enactment of s 562A of the Industrial Relations Act, and the consequential interpretation to be given to s 196(e) of that Act one way.  O'Connor VP read it another way, and with respect, a better way, but that did not mean that it was unreasonable for the respondent to defend the Commissioner’s original interpretation.  That interpretation was not absurd or indefensible.
20. [20]
    O'Connor VP concluded that, “On no reasonable view could it be said that the criteria in s 545(2) have even arguably been triggered”.  I agree with that conclusion.  The consequence is that Dr Chen has not shown any error made by the Vice President of the Industrial Court in relation to his failure to award costs against the respondent.

The Respondent’s Costs Below

21. [21]
    O'Connor VP ordered Dr Chen to pay the respondent’s costs of the costs application before him.  That was an exercise of discretion under s 545(2).  That discretion could only have arisen if O'Connor VP was satisfied of one of the relevant matters.  The costs order which O'Connor VP made against Dr Chen was on an indemnity basis.
22. [22]
    O'Connor VP considered that the application for costs brought by Dr Chen was “misconceived and doomed to fail”.  He thought it “so lacking in merit or substance as to be not fairly arguable” – [34].  He referred to the fact that before him the appellant relied upon “numerous contested and irrelevant assertions” – [16].  Like the matters which fill Dr Chen’s lengthy outlines of argument on the appeal before this Court, these matters were concerned with broad issues of injustice and broader issues involved in the litigation, rather than being confined to matters relevant to the costs application.  These findings satisfied the requirements of s 545(2)(a)(ii).  This meant that a discretion arose to award costs against Dr Chen in relation to the costs application.
23. [23]
    Appeal against a costs order is difficult, for the decision to award costs is a discretionary one, so that Dr Chen must show this Court that Vice President O'Connor either made a mistake of law or fact, or that his decision involves a House v The King^[7]-type error.  Given the findings just discussed, I cannot see that there was any error in O'Connor VP deciding to award costs against Dr Chen.  I turn to his decision to award them on an indemnity basis.
24. [24]
    The Vice President directed himself correctly as to the law, referring to this Court’s decision in Di Carlo v Dubois & Ors^[8] to the effect that before an order for indemnity costs can be made, “the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation”.
25. [25]
    Vice President O'Connor relied on the lack of merits of Dr Chen’s application.  As well, after Dr Chen made his application for costs to the Industrial Court, solicitors acting for the respondent sent him a letter, telling him that his application was fundamentally misconceived and was bound to fail.  The letter explained to him that if he did not withdraw the application, the State of Queensland would seek an order against him for costs on an indemnity basis.  It warned him in very clear terms as to what those costs were likely to be, and strongly urged him to seek legal advice.
26. [26]
    Generally speaking, a court will be slow to make an indemnity costs order against a litigant in person simply because the litigant advances arguments which a lawyer would know were doomed to failure.  In such cases, a court usually looks to see whether there was something vexatious or contumelious about the behaviour of the litigant in person before making an order for indemnity costs.  Here, O'Connor VP notes that there had been almost a year’s delay between his delivering judgment, and the application for costs.  He noted the respondent’s submission that the costs application had been brought by Dr Chen “in retaliation” for the respondent’s making another application in the ongoing litigation, and that the appellant did not deny that motive.  O'Connor VP also found that, rather than make submissions which did concentrate on issues relevant to the application for costs, the appellant had attempted to revisit and re-argue matters which had already been agitated in the Commission, or were yet to be agitated in the Commission – [32].  He described the appellant as using “the application for costs as a platform to continue his general attack on the respondent”.
27. [27]
    I cannot see that any specific error, or any House v The King error, was made by O'Connor VP in ordering indemnity costs against Dr Chen.  The appeal against that order must fail.
28. [28]
    The appeal must be dismissed.  At the hearing of the appeal the respondent said it wished to put correspondence before the Court on the issue of costs.  Accordingly, I would direct that the respondent has seven days to file and serve written submissions of not more than five pages, together with any necessary affidavit material as to the costs orders sought in relation to this appeal.  Dr Chen then has seven days to file and serve written submissions of not more than five pages, together with any necessary affidavit material, in response.
29. [29]
    BURNS J:  I agree with Dalton JA.