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  4. Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011 - [2022] QIRC 430

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Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] QIRC 430

Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] QIRC 430

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 430

PARTIES:

Icon Co (Qld) Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2021/206

PROCEEDING:

Application for Costs

DELIVERED ON:

9 November 2022

HEARING DATE:

On the papers

MEMBER:

O'Connor VP

ORDER:

  1. Application for costs refused

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORK HEALTH AND SAFETY – APPLICATION FOR COSTS – where application for external review – where respondent cancelled relevant improvement notice – where matter subsequently discontinued by consent – whether costs ought to be granted – whether discretion ought to be exercised – application refused

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 542, s 545

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

CASES:

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

JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 367

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

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

Reasons for Decision

  1. [1]
    Icon Co (Qld) Pty Ltd ('the Applicant') brings this application seeking an award of costs against the Respondent.
  2. [2]
    The application arises from a consent order filed in the Industrial Registry in which the substantive application for external review was discontinued by consent,[1] with the parties at liberty to apply for costs.

Background

  1. [3]
    The application for external review was filed in the Industrial Registry on 15 October 2021.
  2. [4]
    Standard directions were issued on 25 October 2021, and the relevant improvement notice was stayed by order of the Commission on 8 November 2021 pending the outcome of the application for external review.
  3. [5]
    By order of the Commission and with the consent of the parties, the matter was formally discontinued with a consent order issued on 20 December 2021.
  4. [6]
    By the time the matter was discontinued, paragraphs (1) – (4) of the standard directions order had been complied with. Namely, the parties had exchanged lists of documents and the other relevant documents.
  5. [7]
    The next order contained in the directions order was the Applicant’s filing and serving of a witness list.  This was due by 4.00 pm on 4 January 2022.

Relevant Principles

  1. [8]
    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;[2]
  2. [9]
    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.
  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.

Applicant's submissions

  1. [10]
    The Applicant seeks its costs on the basis that:

It would have been reasonably apparent to the Respondent that it had no reasonable prospect of success. By resisting the application and requiring the parties to take the steps it did, the Respondent responded to the application without reasonable cause.[3]

  1. [11]
    The Applicant's submissions place significant emphasis on the Respondent's conduct leading up to the filing of the application for external review.[4]  The conduct is relevant in establishing whether:
    1. it would have been reasonably apparent to the Respondent that they had no prospects of success; and
    2. the Respondent had reasonable cause to respond to the Application in the manner that it did.[5]
  2. [12]
    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;
    2. the Respondent already had all the evidence available to it on 1 September 2021;[6]
    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.[7]

Respondent’s submissions

  1. [13]
    The Respondent rejects the submission that conduct during the internal review process ought to be taken into consideration when assessing the merits of this application.
  2. [14]
    Mr McLeod KC for the regulator asserts that, '[w]hat may have occurred throughout 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)'.[8]
  3. [15]
    The Respondent also takes issue with the contention that filing an external review was necessary to combat procedural unfairness during the internal review process. The Regulator argues that no such argument was raised when the external review was filed in the Commission.
  4. [16]
    In the application for external review filed in the Industrial Registry on 15 October 2021 the Applicant, in broad terms contended that the inspector's belief was not objectively reasonable; that the inspector did not make reasonable inquires; and the improvement notice was insufficiently particularised.[9] 
  5. [17]
    Moreover, the Regulator draws the Commission’s attention to its decision to concede proceedings at an early stage. The effect was, in their submission, that the Applicant was not put to any unnecessary expense.[10] Further, it was submitted that compromising an action during the preliminary stages is, '…unremarkable when regard is had to the uncertainties of litigation'.[11]

Consideration

  1. [18]
    In JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[12] the Commission observed:

[21] The starting point for a consideration of this application is the statutory presumption contained in s 545(1) of the IR Act that a party must bear their own costs of a proceeding before the Commission.

…

[23] Relevantly for current purposes, s 545(2)(a)(i) and s 545(2)(a)(ii) of the IR Act authorises the Commission to order an unsuccessful party to the proceeding to pay costs in circumstances where an application is made vexatiously or without reasonable cause, or where it would be reasonably apparent to a party that the application or response to the application had no reasonable prospect of success.

[24] In Kelsey v Logan City Council & Ors ('Kesley') Davis P, conducted an analysis of various decisions considering the operation of s 545 of the IR Act and identified the following relevant principles:

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)
    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.
  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, 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. [footnotes omitted]
  1. [19]
    The Applicant accepts the proposition that if the Commission were to exercise its power to award costs pursuant to s 545 of the IR Act, it is concerned only with the Respondent’s response to the application.
  2. [20]
    However, the Applicant further contends that the Respondent’s conduct leading up to the filing of the Application is crucial in considering whether:
  1. it would have been reasonably apparent to the Respondent that it had no reasonable prospect of success; and
  1. the Respondent had reasonable cause to respond to the application in the manner it did.
  1. [21]
    As expressed in Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[13] the internal review process is separate and distinct from a review under s 229D of the Work and Health Safety Act 2011.
  1. [22]
    What transpired during the internal review process, in particular issues regarding requests for disclosure, are not relevant to a consideration of whether the discretion contained in s 545(2)(a)(i) and s 545(2)(a)(ii) of the IR Act is enlivened.
  1. [23]
    On 11 November 2021 the Applicant made further detailed submissions to the Respondent as to why it should concede the Application for external review.[14]
  1. [24]
    The Respondent accepts that upon receipt of the Applicant's submission on 11 November 2021 and in conjunction with the other aspects of the evidence, the inference can be drawn that the Respondent formed the view that it did not have reasonable prospects of success in defending the proceedings.[15] It was in response to that view having been formed that the improvement notice was withdrawn and the external review before the Commission was conceded.
  1. [25]
    The time between the receipt of the Applicant's submissions and the decision by the Respondent to concede the review was, in the scheme of things, relatively short. By conceding the proceedings at an early stage, the Applicant was relieved of the burden of incurring any further costs, in particular, the not insubstantial costs associated with a hearing before the Commission.
  1. [26]
    The Applicant's submissions fail to deal with how the discretion contained in s 545 of the IR Act has been enlivened and, if enlivened, why the Commission ought to exercise the discretion to grant the order for costs.
  1. [27]
    Having considered the material before the Commission, it cannot be said in my view that one or other of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) of the IR Act are enlivened.

Conclusion

  1. [28]
    The mere fact that the proceeding has been conceded does not give rise alone to a costs order.  Nothing before the Commission has persuaded me to form the view that the discretion contained in s 545 of the IR Act has been enlivened.  It follows therefore that the application for costs must be refused.

Order

  1. Application for costs refused.

Footnotes

[1]Owing to the Respondent cancelling the relevant improvement notice.

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

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

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

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

[6]1 September 2021 being the date the Applicant provided its submission on why thy appeal ought not to be defended.

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

[8]Respondent's submissions on costs dated 22 February 2022 at [10].

[9]Exhibit DJH-6 to the Affidavit of Damian John Hegarty affirmed 11 February 2022.

[10]Respondent's submissions on costs dated 22 February 2022 at [19].

[11]Respondent's submissions on costs dated 22 February 2022 at [20].

[12][2021] QIRC 367.

[13][2022] QIRC 429.

[14]Affidavit of Damian John Hegarty affirmed 11 February 2022 at [10].

[15]Respondent's submissions on costs dated 22 February 2022 at [20].

Close

Editorial Notes

  • Published Case Name:

    Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2022] QIRC 430

  • Court:

    QIRC

  • Judge(s):

    Member 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
Fick v Groves (No 2) [2010] QSC 182
1 citation
Jump To
Cite 1 - [2010] QSC 182
JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 367
2 citations
Jump To
Cite 1 - [2021] QIRC 367
Cite 2 - [2021] QIRC 367
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
Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 429
2 citations
Jump To
Cite 1 - [2022] QIRC 429
Cite 2 - [2022] QIRC 429

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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