Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Timmins (No. 2)[2018] QIRC 117

State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Timmins (No. 2)[2018] QIRC 117

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Timmins (No. 2) [2018] QIRC 117

PARTIES:

State of Queensland, (Department of Justice and Attorney-General, Queensland Corrective Services)

(Applicant)

v

Timmins, Gregory Joseph

(Respondent)

CASE NO:

TD/2017/41

PROCEEDING:

Application for costs

DELIVERED ON:

13 September 2018

HEARD AD:

Decision on the Papers

MEMBER:

Deputy President Swan

ORDERS

[1] The application for costs is granted.

[2] That the Respondent pay the Applicant's costs of and incidental to the application for reinstatement and this application for costs, in matter TD/2017/41.

[3] Costs are payable on the relevant scale of costs for Magistrates Courts in accordance with R 70(2)(a) of the Industrial Relations (Tribunals) Rules 2011.

[4] The Applicant is to file in the Industrial Registry and serve on the Respondent, its schedule of costs within 14 days from the release of this Decision.

[5] That costs be agreed, or failing agreement, be assessed within 14 days of receipt of the Applicant's schedule of costs.

[6] That costs are payable within a further 14 days of agreement or receipt of the costs assessment.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR COSTS - APPLICATION FOR REINSTATEMENT - Application for reinstatement dismissed - Respondent refused reasonable offer of settlement causing Applicant to occur considerable costs - Application for reinstatement had limited prospects of success - Application for reinstatement made "without reasonable cause" - Application for costs granted.

LEGISLATION:

Industrial Relations Act 2016

Industrial Relations (Tribunals) Rules 2011

CASES:

Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2018] QIRC 029

Gambaro v Workers Compensation Regulator [2017] ICQ 005

MIM Holdings Ltd v AMWU [2000] 164 QGIG 370

Dominic Burke AND Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision

Colin Ferry v GHS Regional WA Pty Ltd T/A GHS Solutions [2016] FWC 3120

APPEARANCES:

Mr M. Healy of Counsel, instructed by Crown Law, for State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services), the Applicant.

Mr Gregory Joseph Timmins, the Respondent.

Reasons for Decision

  1. [1]
    This is an application made by State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) (the Applicant) pursuant to s 545 of the Industrial Relations Act 2016 (the Act), seeking costs against Mr Gregory Timmons (the Respondent) in respect of a decision by the Commission on 13 March 2018, dismissing the Respondent's application for reinstatement in matter TD/2017/41[1].
  1. [2]
    The Applicant seeks the following decision:
  1. (a)
    That the Respondent pay the Applicant's costs of and incidental to the application for reinstatement on an indemnity basis;
  1. (b)
    In the alternative, that the Respondent pay the Applicant's costs of and incidental to the application for reinstatement and that those costs be assessed by the Registrar;
  1. (c)
    The Respondent pay the Applicant's costs of any assessment, in respect of orders made in the terms sought in (a) above or, in the alternative, in (b) above; and
  1. (d)
    That costs, fixed or assessed, be paid by the Respondent to the Applicant within 14 days of the Order or the assessment.
  1. [3]
    The Parties have each filed written submissions in relation to the application for costs and the matter is determined on the Papers.

 Material Facts relied upon by the Applicant to support the Application

  1. [4]
    On 15 May 2017, the Respondent filed an application for reinstatement with the Commission (Matter No. TD/2017/41).
  1. [5]
    A compulsory conference was held before the Commission on 15 June 2017 and was unsuccessful. 
  1. [6]
    On 13 September 2017, Deputy President O'Connor made Directions which listed the matter for a five day hearing beginning Monday 23 October 2017.  The directions required the Applicant to file and serve an application for a Suppression Order and set out a timetable for the Parties to exchange material relevant to the application.
  1. [7]
    On 14 September 2017, the Applicant communicated to the Respondent (without prejudice save as to costs), a reasonable offer to settle the matter.  The terms of the letter also put the Respondent on notice that if the matter were to proceed to trial and the Applicant was successful in defending the application, the letter would be produced to the Commission to determine any application in respect of costs incurred in that defence.  That offer of settlement was rejected by the Respondent.
  1. [8]
    That correspondence was followed by a series of documents flowing between the Parties:
  • On 14 September 2017, correspondence from the Respondent to the Applicant seeking clarification of whether costs could be recovered in matters such as this before the Commission.
  • On 18 September 2017, correspondence from the Respondent to the Applicant containing a counter-offer in terms, effectively seeking reinstatement to his position.
  • On 19 September 2017, the Applicant wrote to the Respondent rejecting that counter-offer.  The Applicant then reiterated its prior offer to settle.
  • On 19 September 2017, the Respondent again rejected the offer of 19 September 2017 from the Applicant.
  • On 20 October 2017, a further offer of settlement was made by the Applicant to the Respondent (without prejudice save as to costs).  This offer was made for the purpose of resolving the matter without further costs being incurred by the Parties.  This offer was rejected by the Respondent on the same date.
  1. [9]
    The application for reinstatement was heard by the Commission from 23 to 26 October 2017.  Closing submissions by the Parties were finalised in March 2018.
  1. [10]
    On 13 March 2018, the Commission issued its Decision dismissing the application for reinstatement on a finding that the Respondent's dismissal was not harsh, unjust or unreasonable[2].  At that time, the Suppression Order continued indefinitely.

 Legislation

  1. [11]
    Section 545 of the Act provides:

 545  General power to award costs

(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-

 (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

  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

 (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-

  1. (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
  1. (ii)
    because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
  1. (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.
  1. [12]
    The Applicant relies upon s 545(2)(a)(i) and (ii) of the Act.
  1. [13]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (the Rules) provides:

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 -

 (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

 (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

 (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.

The Applicant's Submissions

  1. [14]
    The Applicant submits that the application for reinstatement was one which was "objectively recognisable as one which could not succeed at the time when the application was made (see Gambaro v Workers Compensation Regulator[3]).
  1. [15]
    Because of the Respondent's disciplinary history, the Respondent received his final warning only two days prior to the pivotal events of 6 August 2016, which led to his dismissal.  Because of his roster, 6 August 2016 was his second working day after he received that final warning.
  1. [16]
    In support of its claim for costs, the Applicant referred to three particular findings in the primary decision of the Commission which required consideration:
  1. (i)
    The Respondent had extensive and serious disciplinary history prior to the incident which led to the termination of his employment which occurred on 6 August 2016; and
  1. (ii)
    On 6 August 2016, the Respondent willfully disobeyed a lawful and reasonable direction on at least six or seven occasions; and
  1. (iii)
    The process used by the Applicant in investigating the incidents on 6 August 2016 and 24 April 2017, was found to be unimpeachable.

The Respondent's Submissions

  1. [17]
    In the Respondent's submissions, there has been an attempt to re-litigate the unsuccessful application for reinstatement previously heard and determined by the Commission.
  1. [18]
    The Respondent submits that his application for reinstatement was not vexatious and was not instigated "without reasonable cause".
  1. [19]
    In the Respondent's view, as the Applicant chose not to represent itself but rather used the services of a solicitor and barrister, it should bear its own costs. 
  1. [20]
    The Respondent outlined his financial situation showing the income he has received during the last financial year (2017-2018) and the level of his personal debt.  Primarily, his submission was that he would be unable to meet any order for costs from the Commission.
  1. [21]
    On 15 October 2017, the Respondent corresponded with the Applicant and made a counter-offer that an amount of $50,000 be paid to him (Taxation free).

The Applicant's Submissions in Reply

  1. [22]
    The Applicant made brief submissions in reply, stating that the matters raised by the Respondent continued to concentrate on the Decision of the Commission to dismiss his application for reinstatement and could have been matters raised, if the Respondent had sought to Appeal that decision[4].  No Appeal of that Decision was made by the Respondent.
  1. [23]
    The Respondent's references to his impecunious financial state have been challenged by the Applicant, where it states that an order for costs against the Respondent would not be an "empty order".  However, in determining this issue, the Commission is required to take into account all of the circumstances.
  1. [24]
    The Applicant highlighted that the Respondent's counter-offer of $50,000 (taxation free) was a sum which exceeded the six month statutory threshold for compensation awards in unfair dismissal (viz., application for reinstatement) claims.  The Applicant's offer was the equivalent of two and a-half months pay.
  1. [25]
    It is submitted that pursuant to R 70(2)(c) of the Rules, the Commission may have regard  to "any other relevant factor".
  1. [26]
    In MIM Holdings Ltd v AMWU[5], His Honour President Hall stated:

 As a matter of first impression, the purpose of s 335* seems to be to spare parties the rule of having to pay the costs of an opposing party whilst providing a measure of protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause…

 I am reluctant to construe the provision in such a way that a successful appellant (respondent) would always, subject to the (proper) exercise of discretion, recover costs of the appeal and the application whilst a successful appellant (applicant) would never do so. It seems to me to be more likely that s. 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made.

 [*Note:  Section 335 "Costs" see Industrial Relations Act 1999, the former Act.]

  1. [27]
    Martin J, President in Dominic Burke v Simon Blackwood (Workers' Compensation Regulator)[6], considered the expression "without reasonable cause" and expressed the view that where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event.
  1. [28]
    While the Respondent relied upon the matter of Colin Ferry v GHS Regional WA Pty Ltd T/A GHS Solutions[7] to oppose the application for costs, the Applicant viewed the case as good authority for the making the orders sought.  In that case, costs were awarded against the applicant for reinstatement (viz., Colin Ferry) on an indemnity basis (the order sought by the Applicant in this matter).  The Commission (Fair Work) gave significant weight to the fact that the applicant rejected a reasonable offer of settlement after he had been served with all of the evidence and submissions to be relied upon by the respondent at trial.  The Commission found that in those circumstances, costs ought to be awarded on an indemnity basis and not the standard basis.  The Commissioner decided that the applicant's refusal to accept the respondent's offer in all of the circumstances, warranted the exercise of the discretion to award costs.

Other Matters for Consideration

  1. [29]
    Prior to the commencement of the Hearing proper in this matter, a Suppression Order was required to be issued by the Commission in relation to:

 Except for the Parties, all documents in relation to this matter including; affidavit material and annexures, witness statements, written submissions, correspondence and transcripts of proceedings, be withheld from release or search absolutely except on conditions ordered by the Commission.

  1. [30]
    This Order was issued because there was contained within the Respondent's material, amongst other things, reference to prisoners' names, cell numbers and other workplace practices relevant to the secure unit of the correctional facility.  Also of concern was that the Respondent wished this material to be made available to the public in order to pursue his claim.             

Conclusion

  1. [31]
    In  considering the factors to be considered in this matter, I find as follows:
  1. (a)
    That the Respondent's refusal to accept the offer of settlement made by the Applicant, when all the circumstances of this case were known, was unreasonable and caused the Applicant to incur considerable costs.
  1. (b)
    The circumstances known at the time of the Conference and hearing before the Commission included the fact that the Respondent agreed that he had refused to comply with specific orders in the course of his work in the Secure Unit of the Facility.  While the Respondent had sought reinstatement in his Application, equally his claims were motivated towards seeking unfounded, in my view, retaliation against a broad range of employees and senior management of the correctional facility. 
  1. (c)
    The application for reinstatement had, in all aspects of the claim, extremely limited prospects of success.
  1. (d)
    Overall, the application for reinstatement lodged by the Respondent against the Applicant was without merit and was made "without reasonable cause" (see Dominic Burke AND Simon Blackwood (Workers' Compensation Regulator)[8], per Martin J, President).
  1. [32]
    For the reasons expressed above, the application for costs is granted and I make the following Orders:

Orders

[1] The application for costs is granted.

[2] That the Respondent pay the Applicant's costs of and incidental to the application for reinstatement and this application for costs, in matter TD/2017/41.

[3] Costs are payable on the relevant scale of costs for Magistrates Courts in accordance with R 70(2)(a) of the Industrial Relations (Tribunals) Rules 2011.

[4] The Applicant is to file in the Industrial Registry and serve on the Respondent, its schedule of costs within 14 days from the release of this Decision.

[5] That costs be agreed, or failing agreement, be assessed within 14 days of receipt of the Applicant's schedule of costs (at order [4] above).

[6] That costs are payable within a further 14 days of agreement or receipt of the costs assessment.

Footnotes

[1] Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2018] QIRC 029

[2] Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2018] QIRC 029

[3] Gambaro v Workers Compensation Regulator [2017] ICQ 005 at [54]

[4] Applicant's submissions in reply, paragraph [3]

[5] MIM Holdings Ltd v AMWU [2000] 164 QGIG 370 at 371

[6] Dominic Burke AND Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision at [19]

[7] Colin Ferry v GHS Regional WA Pty Ltd T/A GHS Solutions [2016] FWC 3120

[8] Dominic Burke AND Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision at [19]

Close

Editorial Notes

  • Published Case Name:

    State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Gregory Joseph Timmins (No. 2)

  • Shortened Case Name:

    State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Timmins (No. 2)

  • MNC:

    [2018] QIRC 117

  • Court:

    QIRC

  • Judge(s):

    Member Swan DP

  • Date:

    13 Sep 2018

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.