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  4. Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 - [2022] QIRC 429

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Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] QIRC 429

Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] QIRC 429

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 429

PARTIES:

Minicon Constructions Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2021/162

PROCEEDING:

Application for costs

DELIVERED ON:

9 November 2022

MEMBER:

O'Connor VP

HEARD AT:

On the papers

ORDER:

  1. Application for costs refused

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORK HEALTH AND SAFETY – APPLICATION FOR COSTS – where application for external review – where parties discontinued matter by consent – where liberty to apply for costs granted as part of discontinuance consent order – whether costs should be granted – whether vexatious or without reasonable cause – whether reasonable prospect of success – application refused

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 545

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

Uniform Civil Procedure Rules 1999 (Qld)

Work Health and Safety Act 2011 (Qld), s 207, s 229D

CASES:

Baker v Salva Resources Pty Ltd [2011] FWAFB 4014; (2011) 211 IR 374

Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 436

Fick v Groves (No 2) [2010] QSC 182

Kelsey v Logan City Council & Ors [2022] ICQ 11

Kioa v West (1985) 159 CLR 550

Lam v Gold Coast Hospital and Health Service (No 2) [2021] ICQ 17

MIM Holdings Ltd v AMWU (2000) QGIG 370

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

Reasons for Decision

  1. [1]
    On 27 July 2021 Minicon Constructions Pty Ltd ('the Applicant') sought review of prohibition notice P1026535 issued on 1 June 2021 by way of a Form 74 'Application for WHS review' filed in the Industrial Registry.
  2. [2]
    By consent, the prohibition notice and internal review decision were stayed on 2 August 2021, with directions for filing material issued on 23 August 2021.
  3. [3]
    In January 2022, the Industrial Registry received a proposed consent order, the terms of which were:
    1. The matter is discontinued by reason of the Respondent cancelling Improvement notice P1026535 in accordance with s 207 of the Work Health and Safety Act 2011 (Qld); and
    2. The issue of costs is reserved, with the Applicant at liberty to apply by 31 January 2022.
  4. [4]
    The consent order was issued in the above terms on 24 January 2022.  The Applicant filed an application seeking costs one week later.

Relevant Principles

  1. [5]
    Section 545(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') establishes that parties must bear their own costs. However, subsection (2) empowers the Commission to award costs where:
    1. (a)
      a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied—
      1. the party made the application or responded to the application vexatiously or without reasonable cause; or
      2. it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success;[1]
  2. [6]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides:
  1. (1)
    This rule applies if the court or commission makes an order for costs under section 545 of the Act .
  2. (2)
    The court or commission, in making the order, may have regard to—
    1. 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. 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. any other relevant factor.
  3. (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.

Applicant's submissions

  1. [7]
    The Applicant seeks costs on the basis that '… it would have been readily apparent to the respondent, from the time the application for external review was filed and served, that it had no reasonable prospects of success'.[2]
  2. [8]
    Mr Hegarty for the applicant argued that not only were the costs avoidable, but that the Respondent's conduct prior to the filing of the application is relevant to the question of costs.[3]
  3. [9]
    Specifically, the Applicant draws the Commission's attention to what it asserts is the Respondent's failure to engage in preliminary disclosure prior to the filing of an application in the Commission.  More specifically, the Applicant recounts:

The following disclosure request was made by the Applicant:

We request that the Internal Review Office provides to us all documents that it intends to rely on as a matter of natural justice and procedural fairness.  We reserve our right to make further submissions once the documents are disclosed before any decision is made by the Internal Review Office.

An opportunity must be afforded to our client to consider and respond to information that is credible, relevant and significant. To fail to do so would, in itself, render any decision invalid given the obvious departure from natural justice and procedural fairness principles established in Kioa v West (1985) 159 CLR 550.[4]

  1. [10]
    At paragraph 16 of the Applicant's submissions,[5] it is asserted:
  1. It follows that the Respondent had in its possession as at 14 June 2021:

a. detailed submissions of the Applicant, together with additional supporting material, as to why the prohibition notice was issued contrary to section[s] 195 and 196 of the WHS Act; and

b. all information the Inspector relied upon in forming his alleged reasonable belief, necessary to issue the prohibition notice.

  1. [11]
    The documents relied upon in the Internal Review decision of 9 July 2021, and said to be of critical importance to the applicant were:
    1. handwritten notes made by Inspector Garaty on 1 June 2021;
    2. photographs taken by Inspector Garaty on 1 June 2021;
    3. handwritten notes taken by Inspector Lee on 1 June 2021;
    4. photographs taken by Inspector Lee on 1 June 2021;
    5. construction Union Interaction Report; and
    6. Inspector Garaty’s email correspondence with OIR dated 22 June 2021.[6]
  2. [12]
    The Applicant contends that the respondent’s decision to ignore the request for disclosure of the above documents meant there was no choice but to file an application for review in order to effect disclosure.[7]
  1. [13]
    In summary the applicant asserts:
    1. the grounds of the application for external review did not diverge from the grounds articulated on 14 June 2021 at internal review;
    2. the Respondent had all [the] evidence available to it that would have ultimately been relied upon at a hearing from 22 June 2021;
    3. the Respondent’s denial of procedural fairness and natural justice during the internal review process necessarily meant the Applicant could not fully articulate its position until after disclosure was ordered by the Commission in these proceeds (Sic). That is to say, it would have been reasonably apparent to the Respondent that it had no reasonable prospects of success, at the time the Application for external review was filed; and
    4. on that background, the Respondent unreasonably resisted the Application for external review and put the Applicant (Sic) to take almost all steps in the proceeding before ultimately relenting and cancelling the prohibition notice and therefore the dispensing with the need for the Application for external review.[8]

Respondent's Submissions

  1. [14]
    The Regulator takes issue with the Applicant’s contention that an external review was necessary due to the Respondent’s conduct during the internal review. Counsel for the respondent submits:

[the internal review] is separate and distinct from the external review process before the Commission. What may have occurred through the internal review process has no bearing on the respondent’s conduct before the Commission, and by extension, any consideration of s 545(2)(a)(i) and (2)(a)(ii) of the IR Act.[9]

  1. [15]
    Mr McLeod, KC for the Regulator notes further that the application for external review made no reference to procedural fairness issues vis-à-vis disclosure during the internal review process.[10] There is, in his submission, '…no basis to find that the respondent has responded to the proceedings before the Commission without reasonable cause'.[11]
  2. [16]
    Moreover, the respondent confirms that it complied with all disclosure obligations once the matter was before the Commission for external review.[12]
  3. [17]
    The respondent also confirms it provided written submissions to the applicant in accordance with directions on 20 September 2021.[13]
  4. [18]
    The respondent cites Baker v Salva Resources Pty Ltd,[14] to establish that a conclusion 'no real prospects of success' ought only to be reached with '…extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable'.[15]

Consideration

  1. [19]
    The Applicant seeks its costs of the proceedings calculated on the scale of costs for the Magistrates Courts under the Uniform Civil Procedure Rules 1999 (Qld).
  1. [20]
    It is possible to glean from the submissions that the Applicant contends that the discretion to award costs in its favour has arisen as the jurisdictional fact identified by s 545(2)(a)(ii) of the IR Act has been satisfied.
  1. [21]
    It is not said by the Applicant that the response to the application is vexatious or was made without reasonable cause. It is said by the Applicant that from the time the application was filed and served that it would have been reasonably apparent to the Respondent that it had no reasonable prospects of success.[16]
  1. [22]
    The mere fact that an application for external review has been conceded, of course, does not give rise alone to a costs order.
  1. [23]
    The general test for whether the Commission’s costs jurisdiction ought to be enlivened is aptly summarised by His Honour Davis J in Kelsey v Logan City Council & Ors.[17] His Honour wrote:

[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.
  1. (b)
    The discretion to depart from that point only arise, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
  1. (c)
    The assessment of “reasonable cause” in s 545(2)(a)(i) is:
  1. (i)
    an objective assessment; and
  1. (ii)
    made considering the facts existing as at the time of the institution of the proceedings[18]
  1. [24]
    The Applicant's submissions rely heavily on a recitation of what transpired during the internal review process. Indeed, they submit that the conduct of the Regulator during the internal review process is relevant in establishing whether:
  1. it would have been reasonably apparent to the respondent that it had no reasonable prospect of success; and
  2. the respondent had reasonable cause to respond to the Application in the manner that it did.[19]
  1. [25]
    What is pleaded as grounds for enlivening s 545 of the IR Act is:
    1. the grounds of appeal in the internal review were identical to those of the external review; and
    2. the respondent already had all evidence available to it on 1 September 2021;[20]
    3. the respondent’s alleged reluctance to disclose during the internal review process meant the applicant could not fully articulate its position until after disclosure was ordered by the Commission, and that it would have been apparent that there were no real prospects of success; and
    4. the respondent unreasonably resisted the application and put the applicant to the steps of proceeding to disclosure in an internal review application.[21]
  2. [26]
    In considering whether costs ought to be awarded under s 545 of the IR Act in a work health and safety proceeding, it is worth reflecting on the nature of a review under s 229D of the Work Health and Safety Act 2011 ('the WHS Act').  A review under s 229D of the WHS Act is to be dealt with by the Commission 'by way of rehearing, unaffected by the decision.' In other words, s 229D uses a form of words which is understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the Commission. It is analogous to a new trial.[22]
  3. [27]
    What is relevant for the purposes of s 545 are the words 'proceeding before the court or commission'. What happened in respect of the internal review and prior to the initiation of the proceedings in this Commission are not relevant to a consideration of the exercise of a discretion under s 545(2)(a)(i) or s 545(2)(a)(ii) of the IR Act.
  4. [28]
    Under the IR Act, the idea that an unreasonable act or omission in connection with the conduct or continuation of proceedings should be a cause for an order for costs is reserved to the act or omission of a representative of a party.[23]
  5. [29]
    The Applicant made written submissions to the Respondent on 20 September 2021[24] calling on it to concede the application for external review. The Applicant submits that it was not able to fully articulate its position until disclosure had been effected.
  1. [30]
    The Applicant submits that the appeal was brought in circumstances where the discretion to award costs against them under s 545(2) of the IR Act arises, although they do not explain why in any meaningful way.
  1. [31]
    The Applicant relies on the following grounds to submit that it would be an appropriate exercise of the Commission’s discretion to award costs in the circumstances where:
  1. the grounds of the Application for external review did not diverge from the grounds articulated on 14 June 2021 at internal review;
  2. the Respondent had all evidence available to it that would have ultimately been relied upon at a hearing from 22 June 2021;
  3. the Respondent’s denial of procedural fairness and natural justice during the internal review process necessarily meant the Applicant could not fully articulate its position until after disclosure was ordered by the Commission in these proceedings.  That is to say, it would have been reasonably apparent to the Respondent that it had no reasonable prospects of success, at the time the Application for external review was filed; and
  4. on that background, the Respondent unreasonably resisted the Application for external review and put the Applicant to take almost all steps in the proceeding before ultimately relenting and cancelling the prohibition notice and therefore dispensing with the need for the Application for external review.
  1. [32]
    For the purposes of s 545(2)(a)(i) of the IR Act, whether an application is commenced vexatiously or without reasonable cause is to be assessed objectively.[25] The test is to be applied when the application is made.
  1. [33]
    The same objective assessment applies in respect of s 545(2)(a)(ii) of the IR Act as to whether it would have been reasonably apparent to a party that their claim had no reasonable prospects of success.[26] However, s 545(2)(a)(ii) is broader than s 545(2)(a)(i) as it can be triggered at a time subsequent to the filing of an application.
  1. [34]
    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.[27]
  1. [35]
    In Dawson v State of Queensland (Department of the Premier and Cabinet),[28] I had the opportunity to briefly examine the meaning to be given to the expression 'reasonable prospects of success'. I wrote:
  1. [19]
    In Keddie & Ors v Stacks/Goudkamp Pty Ltdthe 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.
  2. [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' (citations omitted).
  1. [36]
    The Applicant's submission does not, in my view, grapple with how it is asserted that the response to the application for external review was said to be 'so lacking in merit or substance as to be not fairly arguable'.
  1. [37]
    The other question before the Commission is whether it 'would have been reasonably apparent' to the Respondent that their claim had no reasonable prospects of success. Again, little is advanced by the Applicant to satisfy me that it would have been reasonably apparent to the Respondent that they did not have reasonable prospects of success in responding to the application.
  1. [38]
    As His Honour Davis J observed in Lam v Gold Coast Hospital and Health Service (No 2),[29] '[t]he presence of s 545 in the IR Act will mean that costs orders are not often made'.[30]
  1. [39]
    Even if the discretion under s 545 of the IR Act had been enlivened, I would have been disinclined to exercise the discretion to award costs. On the material before the Commission, it is apparent that the proceedings were in the early stages of preparation. In accordance with the Directions Order issued on 23 August 2021 only disclosure had been completed. The Applicant had filed a list of witnesses it proposed to be call. The matter was to be further mentioned on 8 March 2022 and the matter had not yet been set down for hearing.
  1. [40]
    It is in the public interest that parties involved in litigation before the Commission are not discouraged from making forensic decisions relating to those proceedings, in particular, making an assessment as to whether to discontinue the litigation. As was observed by Applegarth J in Fick v Groves (No 2),[31] as a general rule, parties should be encouraged to abandon factual and legal contentions that they come to realise have poor prospects of success. In such circumstances, a party should not be placed in peril of an award of costs against them on the basis that abandoning such contentions indicates that any response to an application was always known to be hopeless.
  2. [41]
    Having considered the material before the Commission, it cannot be said in my view that the discretion in s 545(2)(a)(ii) of the IR Act has been enlivened.  It must follow therefore that the application for costs should be dismissed.

Order

1.  Application for costs refused.

Footnotes

[1]Industrial Relations Act 2016 (Qld) s 545(2)(a).

[2]Applicant's outline of submissions on costs filed 11 February 2022 at [11].

[3]Applicant's outline of submissions on costs filed 11 February 2022 at [12] – [13].

[4]Applicant's outline of submissions on costs filed 11 February 2022 at [14].

[5]Applicant's outline of submissions on costs filed 11 February 2022 at [16].

[6]Applicant's outline of submissions on costs filed 11 February 2022 at [17].

[7]Applicant's outline of submissions on costs filed 11 February 2022 at [18].

[8]Applicant's outline of submissions on costs filed 11 February 2022 at [23].

[9]Respondent's submissions on costs filed 22 February 2022 at [10].

[10]Respondent's submissions on costs filed 22 February 2022 at [12].

[11]Respondent's submissions on costs filed 22 February 2022 at [16].

[12]Respondent's submissions on costs filed 22 February 2022 at [13].

[13]Respondent’s submissions on costs filed 22 February 2022 at [14].

[14](2011) 211 IR 374.

[15]Respondent’s submissions on costs filed 22 February 2022 at [20].

[16]Applicant’s outline of submissions on costs filed 11 February 2022 at [11].

[17][2021] ICQ 11.

[18]Kelsey v Logan City Council & Ors [2021] ICQ 11 at [25].

[19]Applicant's submissions on costs filed 11 February 2022 at [13].

[20]1 September 2021 being the date the applicant provided its submission on why thy appeal ought not to be defended.

[21]Applicant's submissions on costs filed 11 February 2022 at [24].

[22]Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61 at [3].

[23]Industrial Relations Act 2016 (Qld) s 545(2)(b).

[24]Applicant's submissions on cost filed 11 February 2022 at [22].

[25]MIM Holdings Ltd v AMWU (2000) 164 QGIG 370 at 371.

[26]Baker v Salva Resources Pty Ltd (2011) 211 IR 374 at 376 [10].

[27]Watpac Construction Pty Ltd v Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187.

[28][2021] QIRC 436.

[29][2021] ICQ 17.

[30][2021] ICQ 17 at [22].

[31][2010] QSC 182.

Close

Editorial Notes

  • Published Case Name:

    Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2022] QIRC 429

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    09 Nov 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
Baker v Salva Resources Pty Ltd (2011) 211 IR 374
3 citations
Jump To
Cite 1 - (2011) 211 IR 374
Cite 2 - (2011) 211 IR 374
Cite 3 - (2011) 211 IR 374
Baker v Salva Resources Pty Ltd [2011] FWAFB 4014
1 citation
Jump To
Cite 1 - [2011] FWAFB 4014
Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436
2 citations
Jump To
Cite 1 - [2021] QIRC 436
Cite 2 - [2021] QIRC 436
Fick v Groves (No 2) [2010] QSC 182
2 citations
Jump To
Cite 1 - [2010] QSC 182
Cite 2 - [2010] QSC 182
Kelsey v Logan City Council [2021] ICQ 11
2 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Lam v Gold Coast Hospital and Health Service (No 2) [2021] ICQ 17
3 citations
Jump To
Cite 1 - [2021] ICQ 17
Cite 2 - [2021] ICQ 17
Cite 3 - [2021] ICQ 17
Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61
1 citation
Jump To
Cite 1 - [2018] QIRC 61
MIM Holdings Ltd v AMWU (2000) 164 QGIG 370
1 citation
Jump To
Cite 1 - (2000) 164 QGIG 370
MIM Holdings Ltd v AMWU (2000) QGIG 370
1 citation
Jump To
Cite 1 - (2000) QGIG 370
Robertson v McDonald's Australia Limited (No 2) [2022] ICQ 11
1 citation
Jump To
Cite 1 - [2022] ICQ 11
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

Case NameFull CitationFrequency
Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 4302 citations
1

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