Bunney v Sundale Limited[2021] QIRC 239

INDUSTRIAL REGISTRAR

Reasons for Decision

Background

1. [1]
   On 10 December 2020, Industrial Commissioner Power released a decision in relation to an application in existing proceedings for an objection to a Notice of Non-Party Disclosure filed by the Mr Glenn Bunney (Applicant).  The Orders issued as a result of that decision were as follows:

1. 1.Sundale is to produce to the Appellant in accordance with r 64H(1) of the Industrial Relations (Tribunal) Rules 2011 documents in Categories 1 and 2 (or the equivalent policies), 3, 4, 7, 10, 11 and 12 of the Notice of Non-Party Disclosure issued by the Appellant on 3 April 2020, within fourteen days.

2. 2.Sundale is to produce to the Appellant a redacted copy of the Minutes of the Board Meeting of 14 May 2020 which does not disclose confidential legal advice received from its solicitors, and must otherwise produce documents in Category 5 in accordance with Order 1 above.

3. 3.Sundale is not required to produce documents in Category 6 and 8.

4. 4.Sundale is to produce documents in Category 9 excluding documents relating to Mr McHugh or Ms Daly.

5. 5.Within one month after producing the documents referred to in Orders 1 and 2 above, Sundale is to give to the Appellant written notice of its reasonable expenses of producing those documents.

2. [2]
   On 21 December 2020, the lawyers on behalf of Sundale Pty Ltd (Respondent), McCullough Robertson, sent correspondence via email to the Applicant including documents as per the Order of Industrial Commissioner Power.  Those documents were provided via a 'Dropbox' link.  Included in that letter was the 'written notice' as outlined in Order 5 of Industrial Commissioner Power's decision, as outlined above.

3. [3]
   On 20 January 2021, an application in existing proceedings and submissions were filed by Ms Denning of Denning Insurance Law representing the Applicant in relation to costs of production submitted by the Respondent with regard to the Notice of Non-Party Disclosure.

4. [4]
   The Applicant sought the following orders:

3. (1)
   That pursuant to rule 64I of the Industrial Relations (Tribunal) 2011 (Qld) the applicant pay the Respondent's reasonable expenses of producing the documents sought in the Notice of Non-Party Disclosure to the Respondent filed 3 April 2020 in the sum of $NIL;

3. (2)
   Such further order as the Registrar deems fit.

5. [5]
   On 25 May 2021, the Respondent filed in the Industrial Registry, a Costs Statement pursuant to Order 5 of the decision of Industrial Commissioner Power.

6. [6]
   In correspondence to the Industrial Registry dated 26 May 2021, the Respondent advised that on 13 May 2021 an unsealed copy of the Costs Statement was served on the Applicant outlining the claim for costs and, in the absence of any response, filed the Costs Statement with the Industrial Registry. 

7. [7]
   On 27 May 2021, I issued a Directions Order requiring the Applicant to file any objections to the Costs Statement.

8. [8]
   On 18 June 2021, the Applicant filed in the Industrial Registry its objections to the Respondents Costs Statement.

Relevant legislative framework

Industrial Relations Act 2016

9. [9]
   Section 550(3) of the Industrial Relations Act 2016 (the Act) provides the following:

3. (3)
   The functions of the rules committee include—

10. [10]
    Further, s 551(3) of the Act states:

Rules may be made about the following matters—

Industrial Relations (Tribunals) Rules 2011

11. [11]
    Rule 64I of the Industrial Relations (Tribunals) Rules 2011 (Rules) provides:

64I Costs of production

1. (1)
   Subject to rule 64G(3), the party must pay the non-party's reasonable expenses of producing a document.

2. (2)
   Within 1 month after producing a document, the non-party must give to the party written notice of the non-party's reasonable expenses of producing it.

3. (3)
   Unless the industrial tribunal otherwise orders, the party may apply to the registrar within 1 month after receiving written notice under subrule (2) for assessment of the expenses.

Consideration

Costs

12. [12]
    In Wicks v Workers' Compensation Regulator^[1], Deputy President Merrell stated:

The power to order costs against a party to proceedings in court is always referable to a statutory provision because the common law did not sanction the giving of costs between parties. The source of the power to award costs must therefore be found in legislation.

13. [13]
    Industrial Commissioner Power in her decision dated 7 December 2020 at paragraph [85] said:

On balance, I am not persuaded that sound reasons exist as to why I should depart from the default practice, and as such pursuant to r 64G(3) of the Rules, each party to this application must bear their own costs.

Industrial Commissioner Power made further orders as outlined above.

14. [14]
    The Respondent filed a Costs Statement under r 705 of the Uniform Civil Procedure Rules 1999 (UCPR) and submitted:

…the statement for assessment of this costs statement is:- Pursuant to Order 5 of the Decision Power IC delivered on 7 December 2020, Sundale is to give the Applicant/Appellant written notice of its reasonable expenses of producing the said documents. 

15. [15]
    In Fraser Coast Regional Council v Alderton^[2], in relation to the UCPR and its relevance to the Rules, Industrial Commissioner Thompson stated:

[64] The Respondent sought to discredit the offer by suggesting that the Applicant had omitted relevant information about the UCPR and that the offer had subsequently failed to particularise certain requirements in relation to offers to settle matters.

[65] Unfortunately for the Respondent, the UCPR has no application to proceedings in the Commission with r 3 of the UCPR specifying:

3. (1)
   Unless these rules otherwise expressly provide, these rules apply to civil proceedings in the following courts -

• the Supreme Court
• the District Court
• Magistrates Courts.

3. (2)
   In a provision of these rules, a reference to "the court" is a reference to the court mentioned in subrule (1) that is appropriate in the context of the provision.

The only role for the UCPR in proceedings in the Commission is identified at r 70 of the Rules and relates to the Commission having regard to the scale of costs contained within the UCPR.

16. [16]
    Rule 70 of the Rules relates specifically to costs if the Court or Commission makes an order for costs under s 545 of the Act.  Section 545 of the Act relates to general powers to award costs for proceedings before the Court or Commission.

17. [17]
    The Respondent in their Costs Statement further submitted that:

…the NNPD sets out the obligations of nominated party to produce document and also notes. The nominated party is entitled to the reasonable costs and expenses of producing the document.

18. [18]
    Although I agree that the approved Form 29 at the time of issue of the Notice of Non‑Party Disclosure stated that the nominated party is entitled to reasonable costs and expenses of producing the document, I do not agree that the content of the approved form gives me the power to award costs in relation to the production of a document.  The relevant legislative requirements form the basis of the information required to be included in any 'approved' form.  Where an approved form has diverted from the legislative requirements, those legislative requirements must take precedent.  In this case the word 'costs' are irrelevant and should not apply.

19. [19]
    Paragraph [80] of the decision of Industrial Commissioner Power states:

[80] In accordance with r 64I of the Rules, within one month of producing a document Sundale must give the Applicant written notice of Sundale's reasonable expenses of producing the documents.  The Applicant may apply to the Registrar within one month after receiving written notice for assessment of the expenses. [Emphasis added]

20. [20]
    As there is no legislative provision granting me the power to award costs in relation to a Notice of Non-Party Disclosure, and given the Order made by Industrial Commissioner Power, I should not divert from that Order and/or r 64I(1) of the Rules and therefore should not consider 'costs'.

What is the meaning of reasonable expenses

21. [21]
    Section 36 of the Acts Interpretation Act 1954 (Qld) relevantly provides:

36 Meaning of commonly used words and expressions

3. (1)
   In an Act, a term defined in schedule 1 has the meaning stated in that schedule

3. (2)
   In an Act, a reference to schedule 1 of this Act includes, if the context permits, a reference to this section.

22. [22]
    The words 'reasonable' and 'expenses' are not defined in either the Act or the Acts Interpretation Act 1954 (Qld).  Regard should be had to the ordinary meaning of these words.^[3]

23. [23]
    The Macquarie Dictionary defines the word 'reasonable' to mean:

1. Endowed with reason.
2. Agreeable to reason or sound judgement.
3. Not exceeding the limit prescribed by reason; not excessive
4. Moderate, or moderate in price

and 'expenses' to mean:

1. Cost or charge
2. A cause or occasion of spending
3. The act of expending; expenditure

24. [24]
    In Taylor v Dixon Advisory Ltd^[4], Justice Refshauge said:

…though part of the regime of disclosure, the notice for non-party production has close similarity to the subpoena to produce documents. 

Justice Refshauge went on further to state:

…costs complying with the notice include the searching for, collating, copying if necessary, and producing the documents.

25. [25]
    Given the Order made by Industrial Commissioner Power to determine reasonable expenses in relation to the production of the Notice of Non-Party Disclosure documents, I have considered the Costs Statement filed by the Respondent and the objections made by the Applicant and Order that the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $2,218.54.