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  4. Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2) - [2022] QIRC 369

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Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2)[2022] QIRC 369

Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2)[2022] QIRC 369

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2) [2022] QIRC 369

PARTIES:

Phan, Ngan Thanh t/as Right Choices Construction Queensland

(Applicant)

v

Workers' Compensation Regulator

(First Respondent)

&

Williams, Wayne Robert

(Second Respondent)

CASE NO:

B/2021/16

PROCEEDING:

Application for Costs

DELIVERED ON:

30 September 2022

MEMBER:

O'Connor VP

HEARD AT:

On the papers

ORDER:

  1. 1.That the Applicant pay the First Respondent's costs fixed in the sum of $1,411.20 within 28 days of the date of this decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEAL – WORKERS' COMPENSATION – INTERVENING – where Applicant filed application seeking to intervene in Workers' Compensation matter – where application dismissed – where Regulator seeks costs order against Applicant on the basis that the application was vexatious or made without reasonable cause – whether Commission ought to depart from presumption of parties' bearing their own costs – whether apparent from the beginning that the application had no reasonable prospects of success

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 545

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 549

Fair Work Act 2009 (Cth), s 570

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

CASES:

Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 284 ALR 340

Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 7; (2016) 255 IR 268

Kanan v Australian Postal & Telecommunications Union [1992] FCA 539; (1992) 39 FCR 514; (1992) 43 IR 257

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

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor [2022] QIRC 251

Watpac Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187

Reasons for Decision

  1. [1]
    This is an application for costs arising out of my decision in Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor.[1] The facts of the case are set out in sufficient detail at paragraphs [1]-[5] of that decision; I need not repeat them here. In dismissing the application, I ordered to hear the parties on costs.
  2. [2]
    The Regulator ('the First Respondent') filed submissions on costs in the Industrial Registry on 12 July 2022, but no formal application was made. As the submissions were filed absent a Form 4 application,[2] there was no opportunity for directions for filing to be issued.
  3. [3]
    Noting that nothing had been received in the Industrial Registry on 1 August 2022, I instructed my associate to contact the parties through the Industrial Registry as a means of ensuring all parties had an opportunity to be heard. The email sent to them reads as follows:

Dear parties,

The Regulator filed submissions on costs on 12 July 2022.

This email is to inform the Applicant that any submissions in response should be filed by 4.00pm on 15 August 2022.[3]

  1. [4]
    To date no submissions have been received from the Applicant in the original proceedings; the only material before me is the Regulator's submissions of 12 July 2022.

Power to award costs

  1. [5]
    The power of the Commission to order a party participating in litigation to pay the costs of another party is derived from statute and not the common law.
  2. [6]
    The power to award costs by the Commission is found in s 545 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  3. [7]
    Section 545 of the IR Act deals with the general powers to award costs and relevantly provides:

545 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.
  2. (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. [8]
    In Kelsey v Logan City Council and Ors,[4] Davis J said, of s 545 of the IR Act:
  1. [25]
    Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:
  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.
  1. [9]
    The rationale for s 545 of the IR Act can, in part, be gleaned from the decision of Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd,[5] which explains the legislative policy underpinning s 570 of the Fair Work Act 2009 (Cth) which, like s 545, abrogates the usual rule that costs follow the event:
  1. [103]
    The evident legislative policy is that persons who seek by legal proceedings to vindicate rights or to obtain relief under the FW Act should be able to do so without exposing themselves to the risk of having to pay the costs of another party in the event that they are unsuccessful. So much was made express by the Minister in the Second Reading Speech for the introduction of s 197A into the Conciliation and Arbitration Act in 1973:

This is part of our policy of bringing the courts to the people, of overcoming the deterrent which often prevents a person from seeking to right a wrong because of the burden of costs he might incur where his argument has failed to carry the day … The possibility of having costs awarded against an applicant discourages the use of the courts as a means of settling disputes.

…

  1. [107]
    It is important not to lose sight of legislative policy which underpins s 570. This can easily occur if one characterises it as being no more than a statutory fetter on the making of the usual order for costs. It is that, but it also reflects an attempt to address the underlying inequality of position commonly experienced by applicants in litigation for the enforcement of industrial entitlements.
  1. [10]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') applies to the Commission when making an order for costs under s 545 of the IR Act.
  1. [11]
    Relevantly, rule 70(2) of the IR Rules provides:

70 Costs

  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 2; or
  2. (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
  3. (c)
    any other relevant factor.

…

Regulator’s Submissions

  1. [12]
    The Regulator submits that the application to reopen proceedings falls comfortably within the meaning of 'without reasonable cause'. In support of that contention, they cite Kanan v Australian Postal & Telecommunications Union,[6] where Wilcox J states, '[b]ut where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may be properly said that the proceeding lacks a reasonable cause'.[7]
  2. [13]
    Counsel for the Regulator argues that the Applicant's representative was provided with authorities including Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) (Gillow)[8] on 31 July 2020.
  3. [14]
    The Regulator makes its position clear, that:

…the applicant either was or should have been on notice from seven months prior to the application being filed that Mr Phan had no standing in the substantive appeal and because of that had no standing to bring the application to re-open the substantive appeal.[9]

  1. [15]
    They further argue that the application was one 'doomed from the outset',[10] and that fact ought to have been clear to the Applicant both as a result of the provision of the Gillow decision on 31 July 2020, and the submissions made when the matter was mentioned on 24 March 2021.

Consideration

  1. [16]
    The Regulator is seeking costs in reliance on s 545 (2)(a) of the IR Act, namely:
  1. (a)
    the application was brought without reasonable cause; and
  2. (b)
    it would have been reasonably apparent to the party that the application had no reasonable prospects of success.
  1. [17]
    The question which I am now called on to consider is whether a discretion to award costs has been enlivened and if satisfied that it has, whether the discretion ought to be exercised.
  2. [18]
    For the following reasons, I have formed the view that the Applicant's case could be characterised as having no objective prospects of success. Accordingly, the discretion to award costs has been enlivened.
  3. [19]
    In dismissing the original application, the Commission concluded that having considered s 549 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') and having regard to the reasoning of Martin J in Gillow that the Applicant did not have standing, it was my clear view that the Applicant could never become a party to the proceedings under the WCR Act, nor could he have sought or gained a right to be heard in the matter. Therefore, the Applicant could not seek to have the consent order agreed to between the Regulator and the Second Respondent set aside.
  1. [20]
    In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[11] I had the opportunity of surveying the relevant authorities in respect of awarding costs under the IR Act:

The test for reasonable prospects of success

  1. [17]
    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.
  2. [18]
    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.
  3. [19]
    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.
  4. [20]
    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'.

  1. [21]
    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'.[12]
  1. [21]
    I accept that the Applicant's application before the Commission was, in light of the decision in Gillow bound to fail as there was no basis upon which it could have been reasonably argued. Notwithstanding that insurmountable legal obstacle, the Applicant proceeded with the application and put the Regulator to the expense of having to respond.
  2. [22]
    Some seven months prior to the filing of the application, the Regulator in its correspondence to the Applicant dated 9 June 2020 set out in some detail the reasons for compromising the appeal.[13]
  3. [23]
    On 31 July 2020, Ms Shedden, on behalf of the Regulator, brought the decision of Gillow to the attention of Applicant's legal representatives.[14]
  4. [24]
    Notwithstanding that correspondence and having their attention drawn to Gillow, the Applicant chose to proceed with the Application. On 5 March 2021 an application for a re-opening was filed in the Industrial Registry.
  5. [25]
    In the email correspondence of Ms Shedden of 9 March 2021, it was made abundantly clear that the Applicant had no standing to bring the application in circumstances where the Applicant was not a party to the substantive matter WC/2019/13.[15]
  6. [26]
    I accept the argument that it would have been reasonably apparent to the Applicant after receiving the Regulator's correspondence of 9 March 2021 that the application had no reasonable prospect of success.  In pursuing the application, the Applicant has, in my view, caused the Regulator to unreasonably incur costs.
  7. [27]
    As previously articulated by Davis J, s 545 of the IR Act displaces what might be described as the 'usual rule' that costs follow the event. As he observed in Kelsey v Logan City Council,[16] the starting point is that each party bears their own costs. A discretion to depart from that point only arises, relevantly, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
  8. [28]
    The application advanced by the Applicant was one which ought to be characterised as being made without reasonable cause or made in circumstances where it would have been reasonably apparent to the Applicant that he had no reasonable prospect of success.
  9. [29]
    I accept that the discretion to award costs against the Applicant arises because:
  1. (a)
    the application was filed without reasonable cause and in circumstances where it would be readily apparent to the Applicant that the application had no reasonable prospects, thereby establishing the second limb identified in s 545(2)(a)(i); and
  2. (b)
    the continuation of the application in circumstances where it would be reasonably apparent to the Applicant that the application had no reasonable prospects, satisfying the second limb of s 545(2)(a)(i) and s 545(2)(a)(ii).             
  1. [30]
    The award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.[17]
  1. [31]
    I accept the correctness of the Regulator's calculations that the costs claim is no more than $1,411.20. It would therefore be appropriate, in my view, for the Commission to award costs against the Applicant in respect of B/2021/16 on the Magistrates Court Scale C in accordance with r 70(2)(a) of the IR Rules.
  2. [32]
    Accordingly, I make the following order:
  1. 1.That the Applicant pay the First Respondent's costs fixed in the sum of $1,411.20 within 28 days of the date of this decision.

Footnotes

[1][2022] QIRC 251.

[2]The Form 4 'General Application' is the conventional vehicle for making an application for costs.

[3]Original emphasis.

[4][2021] ICQ 11.

[5][2020] FCAFC 194; (2020) 384 ALR 340.

[6](1992) 43 IR 257.

[7](1992) 43 IR 257 at 265.

[8](2016) 255 IR 268.

[9]First Respondent’s submissions on costs filed 12 July 2022 at [28].

[10]First Respondent’s submissions on costs filed 12 July 2022 at [29].

[11][2020] QIRC 187.

[12]Citations omitted.

[13]Affidavit of Carolyn Shedden filed 12 July 2022 at [10], Annexure CAS-7

[14]Affidavit of Carolyn Shedden filed 12 July 2022 at [16].

[15]Affidavit of Carolyn Shedden filed 12 July 2022 at [19], Annexure CAS-15.

[16][2021] ICQ 11.

[17]Latoudis v Casey (1990) 170 CLR 534 at 543.

Close

Editorial Notes

  • Published Case Name:

    Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2)

  • Shortened Case Name:

    Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2)

  • MNC:

    [2022] QIRC 369

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    30 Sep 2022

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
Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd [2020] FCAFC 194
2 citations
Jump To
Cite 1 - [2020] FCAFC 194
Cite 2 - [2020] FCAFC 194
Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd (2020) 284 ALR 340
1 citation
Jump To
Cite 1 - (2020) 284 ALR 340
Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 384 ALR 340
1 citation
Jump To
Cite 1 - (2020) 384 ALR 340
Brisbane City Council v Gillow [2016] ICQ 7
1 citation
Jump To
Cite 1 - [2016] ICQ 7
Brisbane City Council v Gillow (2016) 255 IR 268
2 citations
Jump To
Cite 1 - (2016) 255 IR 268
Cite 2 - (2016) 255 IR 268
Kanan v Australian Postal & Telecommunications Union (1992) 39 FCR 514
1 citation
Jump To
Cite 1 - (1992) 39 FCR 514
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
3 citations
Jump To
Cite 1 - (1992) 43 IR 257
Cite 2 - (1992) 43 IR 257
Cite 3 - (1992) 43 IR 257
Kanan v Australian Postal and Telecommunications Union [1992] FCA 539
1 citation
Jump To
Cite 1 - [1992] FCA 539
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
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Latoudis v Casey (1990) HCA 59
1 citation
Jump To
Cite 1 - (1990) HCA 59
Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator [2022] QIRC 251
2 citations
Jump To
Cite 1 - [2022] QIRC 251
Cite 2 - [2022] QIRC 251
Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187
2 citations
Jump To
Cite 1 - [2020] QIRC 187
Cite 2 - [2020] QIRC 187

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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