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Dawson v State of Queensland (Department of the Premier and Cabinet) QIRC 436
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Dawson v State of Queensland (Department of the Premier and Cabinet)  QIRC 436
State of Queensland (Department of the Premier and Cabinet)
Application for costs
21 December 2021
On the papers
INDUSTRIAL LAW – QUEENSLAND – PUBLIC INTEREST DISCLOSURE – COSTS ORDER – where substantive application in PID/2021/1 dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) – where respondent seeks an order for costs pursuant to s 545 of the Industrial Relations Act 2016 (Qld) – whether the applicant made the application vexatiously or without reasonable cause pursuant to s 545(2)(a)(ii) of the Industrial Relations Act 2016 (Qld) – whether it would have been reasonably apparent to the applicant that the application had no reasonable prospect of success.
Industrial Relations Act 2016 (Qld), s 545
Public Interest Disclosure Act 2010 (Qld), s 48
Andrew Davis and Chief Executive Officer, Department of Community Safety – Queensland Fire and Rescue Services  QIRComm 229
Baker v Salver Resources Pty Ltd  FWAFB 4014
Blackwood v Egan  ICQ 020
Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd  NSWCA 81
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dominic Burke v Simon Blackwood (Workers' Compensation Regulator)  QIRC 070
Gambaro v Workers' Compensation Regulator  ICQ 005
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gersten v Cape York Land Council Aboriginal Corp (No 2)  176 QGIG 153
House v The King (1936) 55 CLR 499
Imogen Pty Ltd v Sangwin (1996) 70 IR 254
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Keddie & Ors v Stacks/Goudkamp Pty Ltd  NSWCA 254 (17 August 2012)
Kelsey v Logan City Council & Ors  ICQ 11
Latoudis v Casey (1990) 170 CLR 534
Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300
MIM Holdings Ltd v AMEPKU (2000) 164 QGIG 370
MIM Holdings Ltd v AMWU (2000) 164 QGIG 370
Northern Territory v Sangare (2019) 265 CLR 164
State of Queensland (South West Hospital and Health Service) v Crews-Bradley  QIRC 093
Theseus Exploration NL v Foyster (1972) 126 CLR 507
Wanninayake v State of Queensland (Department of Natural Resources and Mines  QIRC 079
Webster v Lampard (1993) 177 CLR 598
Reasons for Decision
- A determination was made by this Commission on 5 October 2021 to dismiss the substantive application in PID/2021/1 pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) ('IR Act'). Parties were directed they would be heard in respect of the question of costs.
- On 21 October 2021, the State of Queensland (Department of the Premier and Cabinet) ('the Respondent') filed submissions in the Industrial Registry seeking an order pursuant to s 545(2)(a)(i)-(ii) of the IR Act that Mr Travis Dawson ('the Applicant') pay the Respondent's costs of and incidental to these proceedings, on the standard basis, calculated on the scale of costs for Magistrates Courts in the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR').
- The Applicant filed submissions in response to the Respondent's claim on 27 October 2021 and the Respondent filed a reply on 9 November 2021.
- On 28 January 2021 the Applicant filed an application, and later an amended application on 7 April 2021, seeking relief pursuant to s 48 of the Public Interest Disclosure Act 2010 (Qld) (PID Act).
- The Respondent filed an application on 12 April 2021 seeking that the Applicant's substantive application be dismissed on the basis that:
- (a)The Applicant's application was made without jurisdiction;
- (b)The Applicant's application could not succeed on any view of the facts or the law; and
- (c)Further proceedings were not necessary or desirable in the public interest.
- The application to dismiss was heard before this Commission on 29 July 2021 and a decision ordering that the substantive application in PID/2021/1 was released to the parties on 5 October 2021.
- The decision to dismiss the Applicant's matter was made on the following findings:
 I accept the argument advanced by the State that the Applicant has failed to identify any breach of the IR Act or an industrial instrument under that Act, as required under s 48(1)(b) of the PID Act. I also accept the argument that s 314 of IR Act, under which the Applicant seeks relief, is not engaged.
 The State submits that both limbs under s 48(1)(a) and (b) of the PID Act must be satisfied to establish jurisdiction for a claim to injunctive relief. In short, if the alleged reprisal does not involve a breach of the IR Act, the Commission does not have jurisdiction to grant an injunction under s 48 of the PID Act.
 Equally, the Applicant has made no application pursuant to Chapter 8, Part 1, Division 8 of the IR Act for the Commission to deal with a dispute about a dismissal. The affidavit material before the Commission filed by the Applicant does not disclose that the Applicant was dismissed nor any other identified contravention about which such an application could be properly made.
 The matter ought to be struck out. In taking that view, I accept that the PID Act is not an 'industrial law' for the purposes of the IR Act; that the Applicant did not take part in a 'proceeding under this industrial law consistent with section 283(i) of the IR Act by making a public interest disclosure'; the Applicant has not identified a 'workplace right' or breach of s 285 of the IR Act; and the Applicant has not identified any other adverse action. As noted above, no application has been made pursuant to Chapter 8, Part 1, Division 8 of the IR Act. It follows therefore that s 314 of the IR Act is not engaged. The Applicant has failed to articulate in any meaningful way how the relief he seeks can be granted.
- The Commission's general power to award costs is provided by s 545 of the IR Act which relevantly states:
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.
- (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
- (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
- Therefore, a party to a proceeding may only be ordered to pay costs under the IR Act if the party's application or response was vexatious or without reasonable cause or it would have been reasonably apparent to the party that the application or response had no reasonable prospect of success.
Requirements of s 545
- The same objective assessment applies in respect of s545(2)(ii) as to whether it would have been reasonably apparent to a party that their claim had no reasonable prospects of success. This limb is broader that s 545(2)(i) as it can be triggered at a time subsequent to the filing of an application.
- In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011, ('Watpac v The Regulator') I had the opportunity of undertaking a brief survey of the applicable principles in respect of an application under s 545 of the IR Act:
Principles governing an award of costs in the Commission
 The ordinary rule is set out in s 545(1) of the IR Act; namely that each party is to bear its own costs in relation to a proceeding in the Commission. That rule need not be applied if s 545(2)(a) is satisfied. In other words, costs may be awarded if the Commission is satisfied that the Respondent responded to the application vexatiously or without reasonable cause; or it would have been reasonably apparent to the Respondent that the response to the application had no reasonable prospect of success.
The test for "vexatiously or without reasonable cause"
 The principles to be applied in applications such as this was considered by Martin J in Wanninayake v State of Queensland (Department of Natural Resources and Mines). The case concerned the predecessor of s 545 – s 335 of the Industrial Relations Act 1999. In that case his Honour wrote:
 An application has been made by the respondent for an order under s 335 of the Industrial Relations Act 1999. That Act permits the court to make an order that an unsuccessful applicant pay costs in circumstances where an application was made vexatiously or without reasonable cause.
 It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her. Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her, but that is not a reason to deny a successful party its costs. The appeal was never going to succeed. It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.
 Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded. It follows that the application was made without reasonable cause, and so the jurisdiction is enlivened.
 The Applicant referred the Commission to the decision of State of Queensland (South West Hospital and Health Service) v Crews-Bradley, which considered s 335(1)(a) of the Industrial Relations Act 1999 (the IR Act 1999), the equivalent to s 545(2) of the IR Act 2016:
The phrase 'vexatiously or without reasonable cause' is to be read disjunctively and not in a composite way.
It is not my understanding of the submissions of the applicant that they contend the respondent, in bringing the application, has acted 'vexatiously'; that is, with the intention of annoying or embarrassing the applicant.
In determining the expression 'without reasonable cause' in s 335(1) of the IR Act, it cannot be said that a party has made an application 'without reasonable cause', within the meaning of s 335(1) of the IR Act simply because the applicant's argument proves unsuccessful.
In considering the phrase 'without reasonable cause' Wilcox J in Kanan v Australian Postal and Telecommunications Union, wrote:
'It seems to me that one way of testing whether a proceeding is instituted "'without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.'
In practice, the test used to determine 'without reasonable cause' is not, in many ways, dissimilar to that applied in determining a summary judgment application. That test has been variously expressed, including that a case is 'manifestly groundless' or is 'so obviously untenable that it cannot possibly succeed'.
Martin J in Dominic Burke v Simon Blackwood (Workers' Compensation Regulator) in dealing with 'without reasonable cause' 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.
 In MIM Holdings Ltd v AMWU, Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
 The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.
The test for reasonable prospects of success
 It is acknowledged that s 545 of the IR Act 2016 preserves s 335 of the IR Act 1999 by providing that a person must bear their own costs in relation to a proceeding unless the court or commission has ordered costs to another party. However, s 545 goes further than s 335 by giving the Commission a discretion in circumstances where a party to the proceeding made the application, or responded to the application, when there was no reasonable prospect of success.
 As a matter of ordinary expression, the words 'reasonable prospects of success' involves weighing up the circumstances of the case to determine whether they are reasonable in the sense that they provide a rational base for a decision to proceed with a matter or, as in this case, whether to respond to the application.
 In Keddie & Ors v Stacks/Goudkamp Pty Ltd the New South Wales Court of Appeal was called on to consider a costs application in the context of s 345 of the Legal Profession Act and the obligation of a law practice not to provide legal services unless the claim has reasonable prospects of success.
 In considering the phrase "reasonable prospects of success" the Court of Appeal had reference to the reasoning of Barrett J (as his Honour then was) in Degiorgio v Dunn (No 2), where his Honour observed:
... 'without reasonable prospects of success' ... equates its meaning with 'so lacking in merit or substance as to be not fairly arguable'. The concept is one that falls appreciably short of 'likely to succeed'.
 Beazley JA (with whom Barrett JA and Sackville AJA agreed) held that the phrase 'without reasonable prospects of success' means 'not fairly arguable' and as to establish 'on the basis of provable facts and a reasonably arguable view of the law that the claim has reasonable prospects of success'.
- More recently in Kelsey v Logan City Council & Ors, Davis J identified some of the principles which apply to the operation of s 545 of the IR Act:
 Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:
- (a)The starting point is that each party bears their own costs.
- (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.
- (c)The assessment of “reasonable cause” in s 545(2)(a)(i) is:
- (i)an objective assessment; and
- (ii)made considering the facts existing as at the time of the institution of the proceedings, here the appeal.
- (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.
It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
His Honour the Chief Justice further stated:
Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.
McHugh J said:
The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.
Should a costs order be made?
- The Applicant sought initial relief from the Commission pursuant to s 48 of the PID Act and s 314 of the IR Act.
- Relevantly, s 48 of the PID Act provides for preconditions which establish a right to apply to the Commission for certain injunctions:
48 Right to apply to industrial commission
- (1)An application for an injunction about a reprisal may be made to the industrial commission if the reprisal—
- (a)has caused or may cause detriment to an employee; and
- (b)involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act.
- The Respondent contends that the Applicant never properly dealt with the question of whether his application met the preconditions identified in s 48(1) of the IR Act.
- Similarly, s 314 of the IR Act refers to the actions the Commission may take on deciding an application mentioned in s 313 of the IR Act. The Respondent submits that the Applicant did not contemplate the steps required by this preceding section and therefore s 314 was never engaged.
- It is emphasised by the Respondent that the deficiencies identified by them in their application to dismiss the proceedings were plain on an ordinary reading of the relevant sections of legislation.
- The Respondent's outline of argument, filed and served on 17 May 2021 put the Applicant on notice that:
- (a)For relief under s 51 of the PID Act, s 48 requires that the alleged reprisal 'involves or may involve a breach of the IR Act or an industrial instrument under that Act' – and no such allegation had been made;
- (b)To the extent the Applicant attempted to identify a breach of the IR Act in a further affidavit affirmed 19 April 2021, that the PID Act was not an 'industrial law' as contended – on authority of Kelsey v Logan City Council & Ors (No. 8); and
- (c)For relief under s 314 of the IR Act, a claim had to have been made under s 309 of the IR Act – and it had not been.
- Further opportunities were provided to the Applicant to consider whether his submissions met the Respondent's arguments however the Applicant failed to engage with the issues raised in the Application to Dismiss.
- As the following exchange at the mention of 12 July 2021 illustrates, the Applicant was given an opportunity to consider the viability of his application and to reflect on the consequences which might flow from pursuing it:
HIS HONOUR: Thanks, Mr Duffy. Mr Dawson, you’ve had a chan – I’ve just put this on because we’ll be trying to set down some times to have this matter heard. Now, the – both yourself as the applicant, and the respondent, the Crown filed submissions, and I’ve got those, and I’ve read them. I’ve considered them. I just want to try and ascertain what your current thinking is in regard – having a chance to read the submissions that have been made.
APPLICANT: The submissions seem to be that – sorry, the submissions seem to be that I don’t have an action.
HIS HONOUR: Yes.
APPLICANT: And - - -
HIS HONOUR: Have you had a chance to consider that and the things that potentially flow from that?
APPLICANT: I assume the things that potentially flow from not having action would be costs against me personally.
HIS HONOUR: Well, that’s one thing, but the primary thing to get to that point would be the application, if I was minded to after I’ve considered the arguments, to strike it out. That’s the first thing. That’s what the Crown has asked me to do because - - -
HIS HONOUR: - - - the Commission has no jurisdiction, put simply.
HIS HONOUR: The things that flow from that would be the possibility of a costs order being made, yes.
HIS HONOUR: So I just want to make sure that you’re aware of all of those things, and if you’ve considered your position enough.
APPLICANT: Yes, I have, and I don’t understand what the forum for the matter is, if it’s not the QIRC. If there’s not a case here, then there’s not a case anywhere, I don’t think. If there’s no jurisdiction here, then there’s no jurisdiction anywhere.
HIS HONOUR: Well, you’d need to get some alternate – you know, advice on that. I can’t give - - -
HIS HONOUR: - - - advice on that. I can only deal with what’s before me, as you appreciate.
HIS HONOUR: And you’ve seen the arguments that have been advanced - - -
HIS HONOUR: - - - by the Crown.
APPLICANT: Yes. So I took those arguments to be that it’s in the public interest.
HIS HONOUR: Well, there’s two aspects of it, as I remember. I don’t want to speak on behalf of Mr Duffy, but there’s two aspects of it. The first is that there’s no – effectively, no cause of action. And the second is in the alternative, as I understand it, an argument that it’s not in the public interest to proceed. So the strikeout application - - -
HIS HONOUR: So relying on the commission strike out powers and the others to say, look, to continue with this having regard to the nature of the matters not in the public interest effectively.
- Notwithstanding the various submissions made by the Respondent and efforts made to explain to the Applicant the situation in which he was placed, the Applicant continued on an erroneous path. Even on the hearing of this application for costs, the Applicant continued to rehearse submissions which had failed in respect of the substantive application.
- In exercising the discretion, I have considered the fact that the Applicant was self‑represented. However, as the authorities suggest, that alone should not be a basis upon which a successful party should be denied their costs.
- In Northern Territory v Sangare, the High Court observed:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person.
- The Applicant's case was one without any prospects of success. In short, the Applicant failed to identify a breach of the IR Act or an industrial instrument under the Act; and never made an application that would have empowered the Commission to grant the relief sought by the Applicant. Those failures were fatal to his application.
- Equally, the application was brought to the Commission on a footing which was misconceived and doomed to fail. The case advanced by the Applicant was on any view of the material, 'so lacking in merit or substance as to be not fairly arguable'.
- I accept that the proceedings were made without reasonable cause or made in circumstances where it would have been reasonably apparent to the Applicant that the Applicant had no reasonable prospect of success against the Respondent. In my view, the Commission's discretion is enlivened in accordance with s 545(2) of the IR Act.
- The following orders are made:
- The Applicant pay the Respondent's costs of and incidental to these proceedings, on the standard basis, calculated on the scale of costs for the Magistrates Courts under the Uniform Civil Procedure Rules 1999 (Qld).
- The costs be in an amount agreed, or if the parties fail to reach agreement within 14 days of this decision on costs:
- (a)The Respondent is to file in the Industrial Registry and serve on the Applicant its schedule of costs claimed within 28 days of this decision on costs;
- (b)The Applicant is to file and serve any objection to the costs claimed within 21 days of being served with the schedule of the costs claimed; and
- (c)Costs are to be assessed by the Industrial Registrar following an Application for Costs Assessment being made by the Respondent.
- The Applicant is to pay the Respondent's costs of any assessment.
4. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment.
 Andrew Davis and Chief Executive Officer, Department of Community Safety – Queensland Fire and Rescue Services  QIRComm 229, -.
 Dawson v State of Queensland (Department of the Premier and Cabinet)  QIRC 342, -, .
 MIM Holdings Ltd v AMWU (2000) 164 QGIG 370, 371 ('MIM Holdings').
 Baker v Salver Resources Pty Ltd  FWAFB 4014, .
  QIRC 187.
  QIRC 079.
  QIRC 93,  – .
 MIM Holdings (n 3) 371.
 Gersten v Cape York Land Council Aboriginal Corp (No 2)  176 QGIG 153.
  FCA 539; (1992) 43 IR 257.
 See also: Imogen Pty Ltd v Sangwin (1996) 70 IR 254 per Wilcox CJ (with whom Madgwick J agreed).
 See: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129 per Barwick CJ. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 per Dixon J; Theseus Exploration NL v Foyster (1972) 126 CLR 507, 514; Webster v Lampard (1993) 177 CLR 598, 602-603; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd  NSWCA 81, -.
  QIRC 070.
 MIM Holdings Ltd v AMEPKU (2000) 164 QGIG 370.
 See: Explanatory Notes to the Industrial Relations Bill 2016 (Qld).
  NSWCA 254 (17 August 2012).
  NSWSC 3; 62 NSWLR 284.
 See also: Lemoto v Able Technical Pty Ltd & Ors  NSWCA 153; 63 NSWLR 300.
  ICQ 011.
  ICQ 020.
 (1936) 55 CLR 499.
 (1990) 170 CLR 534, 543 .
 Ibid 567 .
 Respondent's Outline of Argument filed 17 May 2021, -.
 Respondent's Outline of Argument filed 17 May 2021, -.
 Respondent's Outline of Argument filed 17 May 2021, -.
 Respondent's Outline in Reply on the Application to dismiss dated 18 June 2021.
 TR1-2, LL10-47, TR1-3, LL1-35.
 Gambaro v Workers’ Compensation Regulator  ICQ 005.
 (2019) 265 CLR 164.
 Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300.
- Published Case Name:
Dawson v State of Queensland (Department of the Premier and Cabinet)
- Shortened Case Name:
Dawson v State of Queensland (Department of the Premier and Cabinet)
 QIRC 436
21 Dec 2021