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  4. Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 - [2022] QIRC 433

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Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011[2022] QIRC 433

Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011[2022] QIRC 433

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 [2022] QIRC 433

PARTIES:

Teys Australia Management Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2021/3

PROCEEDING:

Application for Costs

DELIVERED ON:

9 November 2022

HEARING DATE:

On the Papers

MEMBER:

O'Connor VP

ORDERS:

  1. The Respondent pay the Applicant's costs of the proceedings, including the costs of this application for costs, on the standard basis calculated on the scale of costs of the Magistrates Courts under the Uniform Civil Procedure Rules 1999, Schedule 2.

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 discretion ought to be exercised – whether costs should be ordered – determined respondent to pay applicant's costs of the proceedings and this application for costs

LEGISLATION:

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

Industrial Relations (Tribunals) Rules (Qld) r 70

CASES:

Anderson v AON Risk Services Australia Ltd [2004] QSC 180

Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 384 ALR 340

Di Carlo v Dubois [2002] QCA 225

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

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

Kelsey v Logan City Council (No 9) [2022] QIRC 342

Park Avenue Motor-Hotel Pty Ltd and Ors v Beck [2006] ICQ 63; (2006) QGIG 971

R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470

Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120

Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188

Reasons for Decision

  1. [1]
    On 19 November 2020 the Respondent through one of its inspectors issued Improvement Notice I2029573 ('the notice').  The notice alleged a failure to provide adequate protective equipment to employees of the Applicant, specifically P2 masks which were a suitable size and fit to protect those employees from Q Fever.[1]
  2. [2]
    The Applicant sought internal review of that decision.  The decision was subsequently confirmed.  By way of application filed in the Industrial Registry on 15 January 2021, the Applicant sought an external review of the decision.
  3. [3]
    The matter was conferenced before me on 22 February 2021 with a stay order and standard directions order for filing issued by consent on 2 March and 24 March 2021 respectively.
  4. [4]
    The final date for filing in the directions order was 26 July 2021, at which point the Applicant was to file and serve an outline of argument in reply. From there the matter was to be listed for hearing.
  5. [5]
    On 23 September 2021, the Regulator contacted BTLawyers to inform them that:

…it was the Respondent's position that they were no longer able to defend WHS/20201/3. Further, that in accordance with s 207 of the WHSA. Regional Director, Robert Wicks had withdrawn improvement notice I2029573.[2]

  1. [6]
    By 21 October 2021 no further documents had been received by the Commission, so an email was sent by the Industrial Registry querying the status of the matter. The Registry received a response the following day confirming, inter alia, that the Respondent had withdrawn the notice.
  2. [7]
    A consent order was sent to the Industrial Registry on 16 December 2021 discontinuing the matter, with the Applicant at liberty to apply for costs by 31 January 2022.
  3. [8]
    The Applicant made an application on 31 January 2022 seeking the costs of:
    1. the principal Application;
    2. the Application in existing proceedings the subject of Consent Order dated 2 March 2021; and
    3. this Application for costs.

Relevant Principles

  1. [9]
    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;[3]
  2. [10]
    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. [11]
    The Applicant contends that most of their case had been formally aired before an application had been filed.[4]  The Applicant raises the following points (inter alia) in support of its case:
    1. the Applicant does not owe a duty under s 19 of the WHSA in respect of work activities undertaken at the abattoir premises identified in the Notice ("the Premises") as the Applicant is not a "person conducting a business or undertaking" at the Premises;
    2. the Decision Maker therefore erred in failing to find that the Notice was incompetent as against the Applicant
    3. the Notice was issued beyond power, or as otherwise does not comply with the requirements of s 191 of the WHSA, as:
      1. the Notice does not allege a contravention of any provision of the WHSA, but rather a contravention of the Work Health and Safety Regulation ("the Regulation");
      2. s 191 of the WHSA does not authorise the issuing of an improvement notice on the basis of a contravention of the Regulation;
      3. the Notice does not identify any alleged contravention of any provision of the WHSA; and
      4. neither the Notice nor the Decision identifies any basis for asserting a contravention by the Applicant of any provision of the WHSA.[5]
  2. [12]
    This background information should, in the Applicant's submission, be borne in mind when one turns to the email of 23 September 2021. In that email the Regulator conveyed to the Applicant that it could no longer defend the appeal.[6]  A consent order to discontinue proceedings was subsequently filed (with the issue of costs to be reserved).
  3. [13]
    The Applicant maintains that it should have been clear that the Improvement Notice was flawed from the beginning.[7]  On that basis, the Applicant asserts:

It is reasonable for the Industrial Relations Commission to infer and decide that the deficiencies inherent in the Improvement Notice, the deficiencies in the OIC's (sic) reasons in the internal review, and the grounds stated in the Applicant's appeal, including the submission that the Respondent was not the correct entity to receive an Improvement Notice, were enough to demonstrate to the Respondent that the application could not be defended and to cause it to withdraw the improvement notice. Those matters were apparent to the Respondent, or ought to have been, from the outset of the Application if not sooner.

Respondent's Submissions

  1. [14]
    In their submissions, the Respondent submits that the only steps taken between the parties were the exchanging and disclosure of documents in accordance with the consent directions issued on 24 March 2021.[8] Moreover, Mr McLeod, KC for the Respondent asserts that the Regulator's change in position arose from preparation of a defence, and that they were, "entitled to form that view".[9]  That submission is drawn from the affidavit of Ms Godfrey,[10] who deposes that it was on her advice (after starting to prepare the defence) that the Inspector Mr Wicks withdraw the Improvement Notice.[11]
  2. [15]
    The Respondent further submits that the Applicant has failed to articulate why the Commission ought to exercise its discretion with respect to costs. Specifically, the Respondent refutes the Applicant's argument that the costs jurisdiction is enlivened simply because some costs were incurred during the preliminary stages of the matter. That submission, in the Regulator's view, '…does not engage with s 545(2)(a)(i) and/or (2)(a)(ii) and why a costs order is warranted'.[12]

Consideration

  1. [16]
    As discussed in JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[13] and more recently in Kelsey v Logan City Council (No 9),[14] the starting point with respect to costs is that the discretion to depart from the presumption of parties bearing their own costs is only enlivened where one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) of the IR Act are established.
  2. [17]
    His Honour Davis J observed that the assessment of ‘reasonable cause’ in s 545(2)(a)(i) is an objective assessment; and made considering the facts existing as at the time of the institution of the proceedings. 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.
  3. [18]
    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,[15] 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:

[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.

…

[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. [19]
    In the email to the Applicant of 23 September 2021 the Respondent advised that it was no longer able to defend the application before the Commission.
  2. [20]
    The Respondent declined to reveal the reason or reasons for deciding to withdraw the Improvement Notice. However, it is reasonable to infer from what transpired in JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[16] (WHS/2021/81) that the Inspector had no grounds to issue the Improvement Notice on 19 November 2019. As Ms Godfrey deposed in her affidavit of 22 February 2022 "...as a result of the Respondent preparing for matter WHS/2021/81, it became apparent to the Respondent that it could not reasonably defend this application for WHS review."[17]
  3. [21]
    In Kelsey, His Honour Davis J wrote:

Here, it is obvious that the discretion to depart from the general rule arises by force of s 545(2)(a)(i).

On any view, the application to appeal was filed without identification of any error of law or act in excess or want of jurisdiction. After investigation, the appeal was abandoned by Ms Kelsey against Mr Smith, an admission that there were no identifiable grounds which Ms Kelsey chose to mount against him.[18]

  1. [22]
    In these proceedings, I am satisfied that the award of costs is appropriate. I have formed the view the discretion contained in s 545 of the IR Act, in particular s 545(2)(a)(ii), has been enlivened. Moreover, I am of the view that the discretion to award costs against the Regulator should be exercised.
  2. [23]
    Once enlivened, the Commission's discretion to award costs, including the awarding of indemnity costs, is unfettered.[19]
  3. [24]
    In Anderson v AON Risk Services Australia Ltd,[20] and restated in Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2),[21] McMurdo J said that there must be something about the facts and circumstances beyond the demerit of a party's case, as reflected in the outcome, before an order for costs on an indemnity basis is warranted.
  4. [25]
    The Applicant advances no grounds upon which an award on an indemnity basis is justified. The Commission requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation.[22]
  5. [26]
    The Applicant further claims that costs should be awarded having regard to Schedule 1 of the UCPR (District Court Scale).
  6. [27]
    In Washbourne v State Energy Commission of Western Australia [23] Ipp J wrote:

The starting point is that the amount of the costs are to be in accordance with the scale prescribed. If however the special difficulty, complexity, or importance of the case leads the court to order higher costs than those laid down in the scale, the court is empowered to order costs in excess of the amount for scale items; nevertheless, the scale items are to be the basic guidelines in determining the amount of costs to be ordered.

The amounts reflected in the scale are substantially lower than the costs set out in the Supreme Court Costs scale. Plainly, the intention of the legislature is that the costs awarded under the Official Prosecutions (Defendant's Costs) Act are to be lower, generally, than the costs awarded in a Supreme Court action. The court, in ordering costs under s 5(5) therefore does not have a discretion limited only by considerations of reasonableness. Even if costs are awarded in excess of the scale, regard must be had to the scale as a guideline.

  1. [28]
    The legislature has determined that under s 545 of the IR Act the scale of costs of the Magistrates Courts under the Uniform Civil Procedure Rules 1999, Schedule 2 should be used as a guide in arriving at a quantum of any costs ordered.
  1. [29]
    Improvement notices serve an important function under the regulatory regime established under the WHS Act. An improvement notice may require a person to remedy a contravention, prevent a likely contravention of the WHS Act or take remedial action. The object of an improvement notice is to remedy minor contraventions of the WHS Act or to prevent a likely contravention from occurring. They are issued when the matter does not involve a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard.
  2. [30]
    It is in the public interest that a WHS Inspector in exercising their statutory powers does not feel fettered by the prospects of extensive costs orders being made in the event that a notice is successfully challenged through a review process. In my view, any award of costs above the scale must be made with that principle in mind.
  3. [31]
    I am also minded that it is in the public interest that parties involved in litigation before the Commission are not discouraged from making an early decision to discontinue or abandon proceedings in circumstances where there is little or no prospects of success.
  4. [32]
    In addressing the quantum of costs (including any special claim for Counsel), I have not been persuaded that there is a basis to depart from the scale. In my view, there is no special difficulty, complexity, or importance present in this case which would lead me to conclude that the Commission ought to order higher costs than those laid down in the scale of costs of the Magistrates Courts.
  5. [33]
    In the circumstances, it is appropriate that the Regulator pay the costs of the application for external review, including the costs of the application for costs on the standard basis calculated on the scale of costs of the Magistrates Courts under the Uniform Civil Procedure Rules 1999, Schedule 2.

Order

  1. The Respondent pay the Applicant's costs of the proceedings, including the costs of this application for costs, on the standard basis calculated on the scale of costs of the Magistrates Courts under the Uniform Civil Procedure Rules 1999, Schedule 2.

Footnotes

[1]Application for WHS review filed 15 January 2021, Annexure 1.

[2]Applicants' submissions on costs filed 11 February 2022 at [16].

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

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

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

[6]Applicant's submissions on costs filed 11 February 2022 at [16].

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

[8]Respondent's submissions on costs filed 24 February 2022 at [9].

[9]Respondent's submissions on costs filed 24 February 2022 at [10] – [11].

[10]Principal Appeals Officer with the Regulator.

[11]Affidavit of Cheryl-Lea Godfrey dated 24 February 2022 at [56] – [59].

[12]Respondent's submissions on costs filed 24 February 2022 at [16].

[13][2021] QIRC 367.

[14][2022] QIRC 342.

[15](2020) 384 ALR 340.

[16][2021] QIRC 367.

[17]Affidavit of Cheryl-Lea Godfrey dated 24 February 2022 at [56].

[18]Kelsey v Logan City Council & Ors [2021] ICQ 11 at [26].

[19]Park Avenue Motor-Hotel Pty Ltd and Ors v Beck [2006] ICQ 63; 183 QGIG 971.

[20][2004] QSC 180 at [2].

[21][2010] QSC 120 at [4].

[22]Di Carlo v Dubois [2002] QCA 225.

[23](1992) 8 WAR 188 at 194.

Close

Editorial Notes

  • Published Case Name:

    Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Teys Australia Management Pty Ltd v The Regulator Under the Work Health and Safety Act 2011

  • MNC:

    [2022] QIRC 433

  • 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
Anderson v AON Risk Services Australia Ltd [2004] QSC 180
2 citations
Jump To
Cite 1 - [2004] QSC 180
Cite 2 - [2004] QSC 180
Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd [2020] FCAFC 194
1 citation
Jump To
Cite 1 - [2020] FCAFC 194
Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 384 ALR 340
2 citations
Jump To
Cite 1 - (2020) 384 ALR 340
Cite 2 - (2020) 384 ALR 340
Di Carlo v Dubois [2002] QCA 225
2 citations
Jump To
Cite 1 - [2002] QCA 225
Cite 2 - [2002] QCA 225
JBS Australia Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 367
3 citations
Jump To
Cite 1 - [2021] QIRC 367
Cite 2 - [2021] QIRC 367
Cite 3 - [2021] QIRC 367
Kelsey v Logan City Council [2021] ICQ 11
2 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Kelsey v Logan City Council (No 9) [2022] QIRC 342
2 citations
Jump To
Cite 1 - [2022] QIRC 342
Cite 2 - [2022] QIRC 342
Park Avenue Motor-Hotel Pty Ltd & Ors v Beck [2006] ICQ 63
2 citations
Jump To
Cite 1 - [2006] ICQ 63
Cite 2 - [2006] ICQ 63
Park Avenue Motor-Hotel Pty Ltd and Ors v Beck (2006) QGIG 971
1 citation
Jump To
Cite 1 - (2006) QGIG 971
R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470
1 citation
Jump To
Cite 1 - (1978) 140 CLR 470
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No. 2) [2010] QSC 120
2 citations
Jump To
Cite 1 - [2010] QSC 120
Cite 2 - [2010] QSC 120
Washbourne v State Energy Commission (WA) (1992) 8 WAR 188
2 citations
Jump To
Cite 1 - (1992) 8 WAR 188
Cite 2 - (1992) 8 WAR 188

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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