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Dawson v State of Queensland (Department of the Premier and Cabinet)[2022] QIRC 482

Dawson v State of Queensland (Department of the Premier and Cabinet)[2022] QIRC 482

INDUSTRIAL REGISTRAR

CITATION:

Dawson v State of Queensland (Department of the Premier and Cabinet) [2022] QIRC 482

PARTY:

Dawson, Travis

(Applicant)

v

State of Queensland (Department of the Premier and Cabinet)

(Respondent)

CASE NO:

PID/2021/1

PROCEEDING:

Application for costs assessment

DELIVERED ON:

14 December 2022

HEARING DATE:

On the papers

MEMBER:

Industrial Registrar Shelley

ORDERS:

The Applicant pay the Respondent's costs to the value of $55,141.54.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – PUBLIC INTEREST DISCLOSURE – Decision on Costs – Application for Costs assessment – Costs assessed by Industrial Registrar – Consideration of the Uniform Civil Procedure Rules 1999 in the assessment of costs – Validity of Notice of Objection – Applicant to pay costs of the Respondent.

LEGISLATION:

Industrial Relations Act 2016, s 545

Industrial Relations (Tribunals) Rules 2011, r 70

Uniform Civil Procedure Rules 1999, rr 679, 693, 702, 706, 708, 722, 729, Schedule 2, Part 1

CASES:

Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No.3) and Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No. 3) (C/2007/4) and (C/2007/40) - Decision

Naumann v Clarke & Robertson Radiology & Ors [2002] QDC 69 at [16]

Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 057

Otto v Redhead & Ors [2011] QSC 252

Reasons for Decision

Background

  1. [1]
    On 21 December 2021, Vice President O'Connor released a Decision as a result of submissions made by the State of Queensland (Department of the Premier and Cabinet) (Respondent) pursuant to s 545 of the Industrial Relations Act 2016, that Travis Dawson (Applicant) pay the Respondent's costs of and incidental to proceedings before the Queensland Industrial Relations Commission (Commission).
  1. [2]
    Vice President O'Connor made the following orders:
  1. 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).
  1. The costs be in an amount agreed, or if the parties fail to reach agreement within 14 days of this decision on costs:
  1. (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;
  1. (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
  1. (c)
    Costs are to be assessed by the Industrial Registrar following an Application for Costs Assessment being made by the Respondent.
  1. 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.

  1. [3]
    In accordance with those orders, on 18 January 2022 the Respondent filed a Costs Statement with an amount of $55,141.54 being claimed. 
  1. [4]
    The Applicant filed a Notice of Objection on 8 February 2022 which, in summary, outlined the following objections:
  1. (a)
    Item 79 - Not enough information to disentangle the motion to strike from other advice.  Submissions at that time were that in matter was without jurisdiction.  Costs that do not relate directly to preparing and arguing the jurisdictional issue were prematurely briefed by Crown Law consistent with r 729 of the Uniform Civil Procedure Rules 1999 (UCPR).
  1. (b)
    Item 112-118, 337-341 - Inconsistent with Schedule 2, Part 1, of the UCPR.
  1. (c)
    Item 84-96 - Not efficient costs.  "These costs are Crown Law sending around copies of a directions orders that is drafted.  That were issued unchanged by commission".
  1. (d)
    Item 102-111 and portions of 163 and 203 ‑  Costs were incurred prematurely under r 729 of the UCPR.
  1. (e)
    Items 146-152 - Not allowable under r 693 of the UCPR.
  1. (f)
    Item 184, 195, 197, 198, 357-363, 380-397, 403-418 - Only part of the costs of considering and responding to correspondence relating to PID/2021/1.
  1. [5]
    On 6 October 2022, the Applicant filed an Application in Existing Proceedings requesting, amongst other things, that the orders made in the decision of Vice President O'Connor on 21 December 2021 be set aside and replaced with an order that costs are no longer available because of unnecessary and unexplainable delays in progressing the matter.
  1. [6]
    The Respondent advised the Industrial Registry on 21 October 2022 that the parties agreed to enter into negotiations in an attempt to resolve the matter of costs and requested the Mention listed for 24 October 2022 be rescheduled to 4 November 2022.
  1. [7]
    On 3 November 2022, the Respondent filed an Application in Existing Proceedings, together with an affidavit of Ms Catriona McPherson, Acting Assistant Crown Solicitor, in which the following orders were sought:
  1. 1.Pursuant to r 70(3) of the Industrial Relations (Tribunal) Rules 2011, the Industrial Registrar assess the Respondent's costs claimed in PID/2021/1 in accordance with the Respondent's 'Costs Statement' filed in the Commission on 18 January 2022.
  1. 2.The Applicant pay the Respondent's costs assessed by the Industrial Registrar.
  1. 3.The Applicant pay the Respondent's assessed costs within 28 days of the Industrial Registrar delivering its assessment decision.
  1. 4.Any other orders that the Commission deems appropriate.
  1. [8]
    Exhibited to the affidavit of Ms McPherson was the Respondent's response to the Applicant's Notice of Objections, which outlined the following:

1. Notice of Objection

If the objection is not coherent and identifiable and legally correct, the cost assessor must allow the item claimed, pursuant to Rules 722 and 708.

The Applicants notice does not comply with the rules for objections, in that each objection is not numbered (UCPR 706(2)(a)).

Objection 1 states it is in relation to Item "79 ‑", suggesting it is to Item 79 and all items following, however there are further objections to items in that range on different bases.

The items objected to are not listed in numerical order…Additionally, some of the objections include ranges of items which are not consecutive or nearly consecutive (UCPR 706(4)).

No reductions are proposed.

The Applicant's objections do not provide concise and sensible reasons based on fact and law.  They are too vague to be operative and fail to prove that the costs claimed should be disallowed.

See Stephen Kevin Saville AND Q_COMP and State of Queensland (acting through the Department of Corrective Services) (No. 3) and Stephen Kevin Saville AND Q_COMP and State of Queensland (acting through the Department of Corrective Services) (No. 3) (C/2007/4) and (C/2007/40) regarding the Industrial Registrar's attitude to compliance with UCPR procedure for cost assessment where cost assessment is undertaken by the Industrial Registrar.

The Respondent presses the costs claimed as it necessary and proper costs of the proceedings, which in the absence of valid objections must be allowed in full on assessment.

  1. [9]
    It is noted in Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No.3) and Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No. 3)[1], Registrar Savill stated at paragraph 12:

I am of the view that where a party does not comply with r. 706 of the UCP Rules, the Industrial Registrar must assess the costs without considering each item and by allowing the costs claimed in the costs statement. [Also see Remely v O'Shea] [citation omitted]

  1. [10]
    The Respondent's response went on to outline the following:

2. Standard basis costs

When assessing costs on a standard basis, the assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed:  UCP Rule 702(2).

…

At the time the work was performed the Respondent believed it was necessary to the attainment of justice.

  1. [11]
    The Respondent cited Naumann v Clarke & Robertson Radiology & Ors[2] where, at paragraph 16, Robin QC DCJ said:

I accept that the addition of "or proper" to the word "necessary" in r.703(2) "connotes a wider ambit of charge" and that in assessing costs, "care must be taken not to be affected by … "hindsight".

  1. [12]
    The Respondent further submitted that in Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd[3], McGill DCJ made the following comments at paragraph 29:

A registrar assessing costs should not adopt an approach which is restricted or rigid and narrow in its operation.  It has been suggested that an assessment on the standard basis must be expected to occur on a parsimonious scale:  Naumann v Clarke and Robertson Radiology [2002] QDC 69 at [16].  With respect, I do not agree.  In my opinion, such authorities as there are on the subject are to the contrary, and there is no justification in reading the words in the rule in a restrictive sense.

  1. [13]
    The Respondent also submitted:

The costs claimed in the costs statement were necessary or proper from the perspective of the Respondent's solicitors at the time (see also Gilbeys case) [citation omitted], and the perspective of hindsight the Applicant adopts is not relevant on a standard costs basis.

  1. [14]
    The Respondent's particulars of response to objections can be summarised as follows:
  1. (a)
    Item 79
  • The order for the authority for assessment is that the Applicant pay the Respondent's costs of and incidental to the proceedings.
  • The proceedings commenced on 28 January 2021 with the filing of the Applicant's application and concluded on 21 December 2021 upon Vice President O'Connor's delivery of the decision on costs which applied to the Applicant's application and the Respondent's application to dismiss.
  • The costs claimed fall within the scope of the Order and are properly claimed pursuant to the Magistrates Court scale.
  • The objection proposes no reduction and is not relevant in the document. 
  1. (b)
    Items 112-118, 337-341
  • Vice President O'Connor advised the parties on 23 March 2021 that leave was granted for Counsel to appear.
  • The objection is replete with speculation, and devoid of concise reasons of fact or law.
  • It refers to claims for conversation between Counsel and Solicitor at Item 112-118, but those claims are for attendance in court and reading and writing correspondence to and from parties other than Counsel.
  1. (c)
    Items 84-96
  • The objection is too vague to be operative and the validity of the claims would be apparent on assessment.
  • The reference to separate emails to the Junior and Senior Counsel for that same information is curious - there are no duplicated claims for correspondence to Counsel. Where relevant, both Counsel are copied in to one email.
  1. (d)
    Items 102-111, and portions of 163 and 203
  • It is not premature to brief Counsel three days before a hearing.
  • These are necessary or proper costs of the proceeding, properly claimed.
  • It is not a valid objection to simply say "portions of 163 & 203" without specifying what portion and why.
  1. (e)
    Items 146-152
  • The correspondence relates to the Applicant's amended application, which is the application on the subject of the Order, and not an application of the kind described in r 693 of the UCPR.
  1. (f)
    Items 184, 195, 197, 198, 357-363, 380-397, 403-418
  • The objection is too vague to be operative.  The costs are correctly claimed and material evidencing their validity would be apparent upon assessment.
  1. [15]
    A Mention was held before Vice President O'Connor on 4 November 2022.  As a result, the Applicant was granted leave to discontinue his Application in Existing Proceedings filed on 6 October 2022.  Consequently, the matter regarding costs was referred to the Industrial Registrar in accordance with the orders outlined in Vice President O'Connor's decision dated 21 December 2021.

Statutory Framework

  1. [16]
    The Applicant's Notice of Objection relies upon rr 693 and 729 of the UCPR, as well as Schedule 2, Part 1:

693 Application in a proceeding

(1) The costs of a proceeding do not include the costs of an application in the proceeding, unless the court orders otherwise.

  1. (2)
    Subrule (1) applies even if the application is adjourned until the trial of the proceeding in which it is made.

729 Premature brief

 A costs assessor must not allow costs for the preparation and delivery of a brief to counsel on a trial or hearing that did not take place, if the costs were incurred prematurely.

Schedule 2 Scale of costs ‑ Magistrates Court

Part 1 General

1 Costs allowed for counsel and solicitor or clerk

  1. (1)
    The costs of or incidental to the attendance of both counsel and a solicitor during a trial are not to be allowed unless a court certifies that the attendance of both counsel and solicitor was necessary.
  1. [17]
    The Respondent relied on rr 702, 706, 708 and 722 of the UCPR in response to the Applicant's objections.  These rules provide as follows:

702 Standard basis of assessment

  1. (1)
    Unless these rules or an order of the court provides otherwise, a costs assessor must assess costs on the standard basis.

Note –

Costs on the standard basis were previously party and party costs ‑ see rule 743S (Old basis for taxing costs equates to new basis for assessing costs).

  1. (2)
    When assessing costs on the standard basis, a costs assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.

706 Objection to costs statement

  1. (1)
    A party on whom a costs statement is served may, within 21 days after being served, object to any item in the statement by serving a notice of objection on the party serving the statement.
  1. (2)
    The notice of objection must ‑
  1. (a)
    number each objection; and
  1. (b)
    give the number of each item in the costs statement to which the party objects; and
  1. (c)
    for each objection ‑ concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector.
  1. (3)
    The reasons for objection may be in abbreviated note form but must be understandable without further explanation.
  1. (4)
    If the same objection applies to consecutive or nearly consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items.
  1. (5)
    Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items.

708 Default assessment if no objection to costs statement

  1. (1)
    This rule applies if ‑
  1. (a)
    a party served with a costs statement does not serve a notice of objection under rule 706; and
  1. (b)
    the party who served the costs statement files an application for a costs assessment under rule 710.
  1. (2)
    On the filing of the application, the registrar must appoint a costs assessor to assess costs under this rule.
  1. (3)
    The costs assessor must, on proof that the costs statement was served on the party liable for the costs ‑
  1. (a)
    assess the costs without considering each item and by allowing the costs claimed in the costs statement; and
  1. (b)
    issue a certificate of assessment.
  1. (4)
    However ‑
  1. (a)
    despite subrule (3)(a), the costs of attending the assessment of costs are not allowable; and
  1. (b)
    subrule (3)(a) does not prevent the costs assessor correcting an obvious error in the costs statement.
  1. (5)
    Rules 711, 712 and 721 do not apply to an assessment of costs under this rule.

722 Assessment must be limited

If a notice of objection relates only to a particular issue or a particular item, a costs assessor must limit the assessment to the resolution of the matters raised in the notice of objection in relation to the issue or item and otherwise assess the costs under rule 708.

  1. [18]
    Further, r 70(3) of the Industrial Relations (Tribunal) Rules 2011 provides as follows:

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.

  1. [19]
    A "cost assessor" is defined at r 679 of the UCPR as:
  1. (a)
    a costs assessor appointed under rule 743L; or
  1. (b)
    except in parts 4 and 5, an assessing registrar.

Consideration

  1. [20]
    The Applicant utilised Form 61 - Notice of Objection under the UCPR for the filing of his objections.  This form clearly outlines the requirements for objections including objection number, item number, proposed reduction and reasons.
  1. [21]
    I have considered the submissions of both the Applicant and the Respondent and, upon the assessment of the costs statement, I find that the claims of the Respondent to be valid.
  1. [22]
    Further, I agree with the Respondent's submissions that the objections are replete with speculation, and devoid of concise reasons of fact or law.
  1. [23]
    In dealing with the validity of a Notice of Objection which was found to not comply with the mandatory requirements outlined in the UCPR, Atkinson J in Otto v Redhead & Ors[4] noted the following:

The notice of objection is not in a form which can be considered by a costs assessor, and since it is not in accordance with rule 706 is not, in fact, a valid notice of objection.  Accordingly, it cannot and should not be considered by the costs assessor who will have before him a costs statement which he should consider.

  1. [24]
    The notice of objection did not comply with r 706 of the UCPR, and it is therefore not a valid Notice of Objection.

Order

  1. [25]
    I order that the Applicant pay the Respondent's costs to the value of $55,141.54.

Footnotes

[1] Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No.3) and Stephen Kevin Saville AND Q-COMP and State of Queensland (acting through the Department of Corrective Services) (No. 3) (C/2007/4) and (C/2007/40) - Decision

[2] Naumann v Clarke & Robertson Radiology & Ors [2002] QDC 69 at [16]

[3] Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 057 at [29]

[4] Otto v Redhead & Ors [2011] QSC 252

Close

Editorial Notes

  • 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)

  • MNC:

    [2022] QIRC 482

  • Court:

    QIRC

  • Judge(s):

    Industrial Registrar Shelley

  • Date:

    14 Dec 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
Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57
2 citations
Jump To
Cite 1 - [2007] QDC 57
Cite 2 - [2007] QDC 57
Naumann v Clarke & Robertson Radiology [2002] QDC 69
3 citations
Jump To
Cite 1 - [2002] QDC 69
Cite 2 - [2002] QDC 69
Cite 3 - [2002] QDC 69
Otto v Redhead [2011] QSC 252
2 citations
Jump To
Cite 1 - [2011] QSC 252
Cite 2 - [2011] QSC 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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