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  4. Leonard v State of Queensland (Queensland Health) - [2021] QIRC 274

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Leonard v State of Queensland (Queensland Health)[2021] QIRC 274

Leonard v State of Queensland (Queensland Health)[2021] QIRC 274

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Leonard v State of Queensland (Queensland Health) & Anor [2021] QIRC 274

Leonard, Robert

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

and

West Moreton Hospital and Health Service

(Second Respondent)

CASE NO:

D/2019/129

PROCEEDING:

Application for costs

DELIVERED ON:

9 August 2021

HEARD AT:

On the papers

MEMBER:

Hartigan IC

ORDER:

CATCHWORDS:

The application for costs is dismissed.

INDUSTRIAL LAW – application for costs – where the applicant seeks costs on the basis it would be fair and reasonable to be reimbursed – consideration of  vexatious or without reasonable cause.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 545

Industrial Relations (Tribunals) Rules 2011 (Qld), r 70

CASES:

Kelsey v Logan City Council & Ors [2021] ICQ 11

Reasons for Decision

Introduction

  1. [1]
    This is an application made by Mr Robert Leonard pursuant to s 545 of the Industrial Relations Act 2016 (Qld) ("the IR Act"), seeking costs against the State of Queensland (Queensland Health) ("Queensland Health") in respect of a decision by the Queensland Industrial Relations Commission ("the Commission"), in which an industrial dispute between the parties was arbitrated.
  1. [2]
    Mr Leonard seeks the following remedies:
  1. (a)
    reimbursement of expenses for Queensland Industrial Relations matter D/2019/129; and
  1. (b)
    reimbursement of costs for Employer Executive Protect Fees of $2,200 and 291km for travel to Queensland Industrial Relations hearing on 27 October 2019 and 27 November 2019 and Queensland Industrial Relations mention on 22 January 2020.[1]
  1. [3]
    The parties have each filed written submissions in relation to the application for costs and the matter is determined on the papers.

Relevant background to the application

  1. [4]
    By way of background, Mr Leonard notified a dispute with his employer, Queensland Health, in relation to whether he accrued annual and sick leave entitlements whilst receiving workers' compensation payments.
  1. [5]
    By decision of this Commission dated 27 November 2020, it was ordered that Mr Leonard was entitled to accrue annual leave and sick leave for the period during which he was absent but being paid workers' compensation payments.
  1. [6]
    Mr Leonard submits that prior to commencing the dispute in the Commission, he contacted and sought the advice of Employee and Executive Protect, for assistance in resolving the accrual of leave entitlements whilst he was on WorkCover.  Mr Leonard states that he paid Employee and Executive Protect $2,200 for the services retained in relation to the subject matter of the dispute.  Mr Leonard states that he is seeking reimbursement of Employee and Executive Protect fees of $2,200, as their services were retained solely for the accrual of leave issue, as Mr Leonard's union could not provide assistance in resolving the dispute.
  1. [7]
    Mr Leonard further states that he emailed Ms Yvonne Prince, of the West Moreton Hospital and Health Service, on 21 December 2020 requesting reimbursement of expenses in relation to his travel to the Commission.  Mr Leonard is seeking the reimbursement of the kilometres he travelled to attend the hearings and mention at the Commission, which was for the sole purpose of resolving the dispute in relation to his leave accrual on WorkCover, and whilst a full-time employee with Queensland Health. It is noted that the attendances at the Commission Mr Leonard is referring to are in relation to two conciliation conferences and a mention.
  1. [8]
    Mr Leonard completed a staff expense claim form which included a copy of the Employee and Executive Protect invoice receipt and a milage vehicle allowance form.
  1. [9]
    Mr Leonard was advised by Queensland Health that in the "absence of an order from the QIRC about costs, the HHS will not cover these expenses…".[2]

Relevant legislative provisions

  1. [10]
    Section 545 of the IR Act provides for the award of costs in certain circumstances as follows:
  1. 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
  2. (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. (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
  2. (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. [11]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides for the payment of costs as follows:
  1. 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 -
  1. (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 3; or
  2. (b)
    for a proceeding before the full bench—the costs payable on the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999, schedule 2; or
  3. (c)
    for a proceeding before the court—the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
  4. (d)
    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.
  1. [12]
    In Kelsey v Logan City Council & Ors[3], President Davis identified the following principles arising out of an analysis of  various decisions considering the application of s 545 and similar provisions:

…

  1. (a)
    The starting point is that each party bears their own costs.
  2. (b)
    A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
  3. (c)
    The assessment of “reasonable cause” in s 545(2)(a)(i) is:
  1. (i)
    an objective assessment; and
  2. (ii)
    made considering the facts existing as at the time of the institution of the proceedings, here the appeal.
  1. (d)
    Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.[4]

[footnotes omitted].

Consideration of the application for costs

  1. [13]
    Queensland Health opposes the application for costs as it states that the provisions of s 545(2) of the IR Act are not satisfied.
  1. [14]
    Queensland Health submits that Mr Leonard does not contend that Queensland Health responded to the application vexatiously or without reasonable cause or that the response to the application had no reasonable prospects of success.
  1. [15]
    Mr Leonard submits that it is fair and reasonable to be reimbursed for the costs associated with his advocacy representatives, for the sole purpose of regaining his leave entitlements whilst on WorkCover during the continuous employment with Queensland Health.
  1. [16]
    Mr Leonard contends that he exhausted all avenues prior to engaging Employee and Executive Protect and extensively corresponded with Queensland Health in relation to the dispute.
  1. [17]
    Mr Leonard further states he is seeking to be reimbursed for kilometres travelled to the hearings that occurred on 27 October 2019 and 27 November 2019, the mention on 22 January 2020 and for the Employee and Executive Protect fees of $2,200.  He submits that those amounts should be paid as it is fair and reasonable for the Commission to award the payment of those costs under s 545 of the IR Act.
  1. [18]
    Mr Leonard has not raised any grounds in support of a contention that Queensland Health acted vexatiously or without reasonable clause.  Accordingly, the jurisdictional facts that may give rise to the exercise of the discretion to award costs identified in s 545(2)(a)(i) of the IR Act do not arise in the circumstances of this matter.
  1. [19]
    Similarly, no matters are identified which, in my view, could amount to a jurisdictional fact that may give rise to the exercise of the discretion in accordance with s 545(2)(a)(ii) of the IR Act.
  1. [20]
    Given the subject matter of the Industrial Dispute and the complex legal issues that it raised, I do not consider that the actions of Queensland Health in responding to the notice of dispute were in any way vexatious or without reasonable clause.  Similarly, and for the same reasons, I do not consider that it was reasonably apparent to Queensland Health that the response to the application had no reasonable prospects of success.
  1. [21]
    It follows, that in accordance with s 545(1) of the IR Act each party must bear their own costs in relation to this proceeding.

Orders

  1. [22]
    I issue the following order:
  1. The application for costs is dismissed.

Footnotes

[1] Applicant's submissions filed on 29 January 2021.

[2] Affidavit of Robert Gordon Leonard filed on 6 January 2021.

[3] [2021] ICQ 11.

[4] Ibid, [25].

Close

Editorial Notes

  • Published Case Name:

    Leonard v State of Queensland (Queensland Health) & Anor

  • Shortened Case Name:

    Leonard v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 274

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    09 Aug 2021

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
Kelsey v Logan City Council [2021] ICQ 11
3 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Cite 3 - [2021] ICQ 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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