Taylor v Clermont Coal Pty Ltd
[2021] QIRC 430
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- Unreported Judgment
- Taylor v Clermont Coal Pty Ltd[2021] QIRC 430
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Taylor v Clermont Coal Pty Ltd[2021] QIRC 430
Taylor v Clermont Coal Pty Ltd[2021] QIRC 430
INDUSTRIAL REGISTRAR
CITATION: | Taylor v Clermont Coal Pty Ltd [2021] QIRC 430 |
PARTY: | Taylor, Craig (Applicant) v Clermont Coal Pty Ltd (Respondent) |
CASE NO: | WC/2021/38 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: HEARING DATE: | 17 December 2021 On the papers |
MEMBER: | Industrial Registrar Shelley |
ORDERS: | 1. That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $5,805.88. 2. Payment is to be made within 21 days of the date of this decision. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – application in existing proceedings pursuant to r 64I of the Industrial Relations (Tribunals) Rules 2011 regarding reasonable expenses of producing documents sought in a Notice of Non-Party Disclosure – Meaning of costs – Meaning of reasonable expenses – Reasonable expenses of $5,805.88 to be paid by Applicant to Respondent |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) Industrial Relations Act 2016 Industrial Relations (Tribunals) Rules 2011, r 64I Uniform Civil Procedure Rules 1999 |
CASES: | Encyclopaedic Australian Legal Dictionary (online at 15 December 2021) 'costs' (def 1) Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112 Fraser Coast Regional Council v Alderton [2020] QIRC 001 Macquarie Dictionary (7th Edition, 2017) 'reasonable' (def 1-4) Macquarie Dictionary (7th Edition, 2017) 'expense' (def 1-4) Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136 Ure v The National Mutual Life Association of Australasia [1999] QSC 10 |
Reasons for Decision
Background
- [1]On 23 June 2021, a Form 29 – Notice of non-party disclosure was filed with the Industrial Registry by Turner Freeman Lawyers on behalf of the Appellant in the substantive matter, Mr Craig Taylor (Applicant). That Notice required Clermont Coal Pty Ltd (Respondent) to produce a number of documents mentioned or described in the schedule of documents contained within the Notice relevant to the substantive matter.
- [2]On 26 October 2021, the Applicant applied to the Industrial Registrar for an assessment of the costs and expenses as a consequence of receiving correspondence from Barry Nilsson Lawyers, on behalf of the Respondent, giving notice of its reasonable expenses of producing, in part, disclosed documents.
- [3]The amount sought by the Respondent was $13,235.50, which is broken down as follows:
- professional costs paid to Barry Nilsson Lawyers totalling $7,635.50 (exclusive of GST); and
- costs of the Respondent totalling $5,600 – equating to approximately 56 hours spent in searching for and collating said documents.
- [4]In response to the request, I issued a Directions order, dated 27 October 2021, requiring the following of the parties:
- That Barry Nilsson Lawyers, on behalf of Clermont Coal Pty Ltd, file in the Industrial Registry, and serve on the Appellant, a Statement outlining the breakdown of reasonable expenses incurred in complying with the Notice of Non-Party Disclosure issued on 23 June 2021 by 4.00 pm on Monday 8 November 2021.
- That the Appellant file in the Industrial Registry, and serve on Barry Nilsson Lawyers, on behalf of Clermont Coal Pty Ltd, any objection to the Statement by 4.00 pm on Monday 15 November 2021.
- [5]On 8 November 2021, the Respondent filed a Reasonable Expenses Statement seeking a total amount of $14,525.50.
- [6]On 15 November 2021, the Applicant filed objections to the Respondent's Reasonable Expenses Statement. Those objections are summarised as:
- whether the costs were necessary or proper costs;
- the costs of settling documents is double handling and not proper or necessary costs;
- costs claimed are not properly itemised;
- perusing/examining documents that had previously been perused or examined;
- that the costs statement should be reduced by the amount of the GST component;
- that there is no evidence that the indemnity principle has been applied; and
- that there is no evidence supporting the claimed third party costs.
- [7]On 18 November 2021, I issued a Directions order requiring the following:
- That Barry Nilsson Lawyers, on behalf of Clermont Coal Pty Ltd, file in the Industrial Registry, and serve on the Appellant, a statement in reply (of no more than five pages in length) to the objections statement of the Appellant by 4.00 pm on Thursday 25 November 2021.
- That the matter be dealt with on the papers, unless otherwise advised.
- [8]On 25 November 2021, the Respondent filed a statement in reply to the Applicant's objections to the Reasonable Expenses Statement.
Relevant legislative framework
Industrial Relations (Tribunals) Rules 2011
- [9]Rule 64I of the Industrial Relations (Tribunals) Rules 2011 (Rules) provides:
64I Costs of production
- (1)Subject to rule 64G(3), the party must pay the non-party's reasonable expenses of producing a document.
- (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)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
What is the meaning of costs?
- [10]
…the remuneration and disbursements incurred in relation to legal work; costs are defined as amounts that a person has or may be charged by a law practice for the provision of legal services including disbursements but not including interest; costs do not include remuneration for work that is not professional work…
- [11]
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.
- [12]The power to award costs falls directly with the Industrial Court of Queensland or the Queensland Industrial Relations Commission pursuant to s 545 of the Industrial Relations Act 2016 (Act) and r 70 of the Rules.
- [13]In Fraser Coast Regional Council v Alderton[3], in addressing the relationship of the Uniform Civil Procedure Rules 1999 (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:
- (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.
- (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.
- [14]Therefore, given there are no legislative provisions granting me the power to award costs in relation to a Notice of non-party disclosure, I should not divert from r 64I(1) of the Rules.
What is the meaning of reasonable expenses?
- [15]Section 36 of the Acts Interpretation Act 1954 (Qld) (AI Act) relevantly provides:
36 Meaning of commonly used words and expressions
- (1)In an Act, a term defined in schedule 1 has the meaning stated in that schedule
- (2)In an Act, a reference to schedule 1 of this Act includes, if the context permits, a reference to this section.
- [16]The words 'reasonable' and 'expenses' are not defined in either the Act or the AI Act. Regard should be had to the ordinary meaning of these words.[4]
- [17]
- endowed with reason
- agreeable to reason or sound judgement
- not exceeding the limit prescribed by reason; not excessive
- moderate, or moderate in price
and 'expense'[6] to mean:
- cost or charge
- a cause or occasion of spending
- the act of expending
- Commerce
a. charges incurred in the execution of an undertaking or commission
b. money paid as reimbursement for such charges.
- [18]Specifically, in relation to non-party production, Justice Refshauge in Taylor v Dixon Advisory Ltd[7], 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.
Conclusion
- [19]The Respondent submitted that costs recoverable in respect of compliance with a notice of non-party disclosure can include legal advice, citing Ure v The National Mutual Life Association of Australasia Limited[8]. I do not agree with this submission for the reason that this matter was dealing with costs, specifically taxation on costs. The 'reasonable expenses' submitted by the Respondent included items that are reflective of costs and not reasonable expenses.
- [20]I have considered the Reasonable Expenses Statement submitted by the Respondent, the objections of the Applicant and subsequent statement in reply and, for the reasons outlined above, I order as follows:
1. That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $5,805.88.
2. Payment is to be made within 21 days of the date of this decision.
This amount has been calculated as 75 per cent of Item 8 within Category A and 100 per cent of Item 1 in Category B of the Reasonable Expenses Statement of the Respondent dated 8 November 2021.
Footnotes
[1] Encyclopaedic Australian Legal Dictionary (online at 15 December 2021) 'costs' (def 1)
[2] Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112
[3] Fraser Coast Regional Council v Alderton [2020] QIRC 001
[4] As outlined in Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112, citing R v A2 [2019] HCA 35
[5] Macquarie Dictionary (7th Edition, 2017) 'reasonable' (def 1-4)
[6] Macquarie Dictionary (7th Edition, 2017) 'expense' (def 1-4)
[7] Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136
[8] Ure v The National Mutual Life Association of Australasia [1999] QSC 10