Chen v Gold Coast Hospital and Health Service (No. 5)
[2023] QIRC 226
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- Unreported Judgment
- Chen v Gold Coast Hospital and Health Service (No. 5)[2023] QIRC 226
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Chen v Gold Coast Hospital and Health Service (No. 5)[2023] QIRC 226
Chen v Gold Coast Hospital and Health Service (No. 5)[2023] QIRC 226
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226 |
PARTIES: | Chen, Victor (Applicant) v Gold Coast Hospital and Health Service (Respondent) |
CASE NOS: | GP/2020/27 & TD/2021/20 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 9 August 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – COSTS ORDER – where interlocutory application for reinstatement on an interim basis dismissed – where respondent seeks an order for costs pursuant to s 545 of the Industrial Relations Act 2016 (Qld) – whether the applicant made the application vexatiously or without reasonable cause pursuant to the Industrial Relations Act 2016 (Qld) s 545(2)(a)(i) – whether it would have been reasonably apparent to the applicant that the application had no reasonable prospects of success pursuant to the Industrial Relations Act 2016 (Qld) s 545(2)(a)(ii) |
LEGISLATION: | Industrial Relations (Tribunal) Rules 2011 (Qld) r 70 Industrial Relations Act 2016 (Qld) ss 536, 545 Uniform Civil Procedure Rules 1999 (Qld) r 682 |
CASES: | Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 002 Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 012 Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 Coulter v Ryan [2007] 2 Qd R 302 Kelsey v Logan City Council & Ors [2021] ICQ 11 Maher v Isaac Regional Council [2020] QIRC 191 MIM Holdings Limited v Automative, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370 State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 93 Yousif v Workers’ Compensation Regulator [2019] ICQ 10 |
Reasons for Decision
Introduction
- [1]On 19 May 2023, the Gold Coast Hospital and Health Service (‘GCHHS’) (‘the Respondent’) filed an application in existing proceedings seeking an order that pursuant to the Industrial Relations Act 2016 (Qld) s 545 (‘the IR Act’), Dr Victor Chen (‘the Applicant’) pay the Respondent’s costs of and incidental to the Applicant’s application for interlocutory reinstatement which was dismissed in Chen v Gold Coast Hospital and Health Service (No. 4) (‘Chen No. 4’).[1]
Relevant background to the matter
- [2]
- [3]Dr Chen filed his application for interim reinstatement on 10 February 2023. A mention was held on 28 February 2023, and following an exchange of submissions, a hearing was held on 15 March 2023. Dr Chen’s application was subsequently dismissed in Chen No. 4.[4]
- [4]On 19 May 2023, the GCHHS filed an application for costs. I decided to hear the matter on the papers and issued directions for the filing of written submissions.[5] While this decision relates to the GCHHS’s application, I have determined to refer to the parties by their roles in the substantive proceedings. Dr Chen and the GCHHS are the subjects of multiple proceedings in both the Queensland Industrial Relations Commission and the Industrial Court of Queensland. To avoid confusion regarding my handling of Dr Chen’s substantive unfair dismissal and general protections applications, it is practical to maintain continuity by referring to Dr Chen as the Applicant and the GCHHS as the Respondent.
Legal framework
- [5]The Commission’s ability to award costs is contained in s 545 of the IR Act which relevantly provides:
545 General power to award costs
- A person must bear the person’s own costs in relation to a proceeding before the court or commission.
- However, the court or commission may, on application by a party to the proceeding, order—
- a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied—
- the party made the application or responded to the application vexatiously or without reasonable cause; or
- it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or
- a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred—
- because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or
- because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
- The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.
- [6]With regard to the power of the Commission to award costs in interlocutory proceedings, s 536 of the IR Act states:
536 Interlocutory proceedings
For conducting proceedings under this Act or another Act, the court, commission or registrar may make orders or give directions the court, commission or registrar considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings, including matters about the following—
…
- costs of the interlocutory proceedings;
- [7]The Industrial Relations (Tribunal) Rules 2011 (Qld) r 70 relevantly provides:
70 Costs
- This rule applies if the court or commission makes an order for costs under section 545 of the Act.
- The court or commission, in making the order, may have regard to—
- 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
- 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
- any other relevant factor.
- 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.
Costs sought by the Respondent
- [8]The GCHHS’s application for costs was filed alongside an affidavit of Ms Cathy Lyndon, Special Counsel of Minter Ellison, legal representatives for the GCHHS, sworn on 19 May 2023. The affidavit of Ms Lyndon states:
To date, the Respondent has incurred a total of $13,335 (ex GST) in costs in relation to the Application, which includes:
- Solicitor’s fees - $10, 735; and
- Counsel’s fees - $2,600.
An estimate of the further costs the Respondent may incur in relation to the preparation of this costs application are:
- Solicitor’s fees - $3,500; and
- Counsel’s fees - $600.
Dr Chen’s submissions
- [9]Dr Chen filed submissions on 13 June 2023. Dr Chen’s submissions state he ‘reaffirms his costs application filed 10 February 2023’ and that he ‘also re-affirms oral submissions made at Mention and hearing in the Industrial Court before Vice-President O'Connor on 8 March 2023 and 20 April 2023 seeking indemnity costs to be reimbursed to Dr Chen by the GCHHS’ and ‘also re-affirms seeking for further orders to repay prior wasted legal costs to the Queensland taxpayer in accordance with legal principle, law, and known legislative intent pursuant to ss 536(h) and 545(2)(b) of the Industrial Relations Act 2016’.
- [10]From paragraphs [4] to [7] of his submissions, Dr Chen makes submissions regarding other matters before the Commission and also his substantive unfair dismissal and general protections applications.
- [11]Dr Chen says that ‘relevant to consideration of this current costs application made by GCHHS and MinterEllison is that matter on appeal in C/2023/2 heard before Deputy President Hartigan on 3 May 2023 await reserved decisions…’. Dr Chen then makes submissions regarding the matters under appeal for which Deputy President Hartigan has reserved her decision.[6]
- [12]At paragraphs [11] and [12] of his submissions, Dr Chen expresses a view about the conduct of the Respondent with regard to his substantive applications. Dr Chen also makes submissions about decisions of the GCHHS with regard to appointing new employees and legal advice he has received about the substantive matter.
- [13]At paragraph [14] of his submissions, Dr Chen addresses this costs application directly and says:
In respect of Dr Chen re-enlivening a formal application for interlocutory reinstatement in 2023, the Commission previously did not exercise the jurisdiction and did not undertake the processes required by law when the prior formal application was filed for interlocutory reinstatement in 2021. Commission inaction then was notwithstanding multiple known precedents and the circumstances then and now being the prototype where interlocutory reinstatement is applied for and is to be considered by a tribunal where a prima facie case exists with the important question of unfair dismissal, balance of convenience, given nature of and priority of the known workplace rights in the context of general protections provisions in industrial law.
Because the processes required by law had not been undertaken by the Commission in 2021 – and because of representation given by multiple colleagues to Dr Chen late 2022 of ongoing understaffing, fatigue, context mutual professional obligations towards minimising risks to patient safety and safe working conditions for colleagues; now crystallised a manifest unequivocal new vacancy and need in 2023 for another interventionalist of a role or roles the same or substantially the same – it was plainly lawful, reasonable, practicable, appropriate, and in fact obligatory professional duties towards patient, collegial, staff and the institutional safety culture to have re-enlivened processes in the Commission to make fair and reasonable consideration for an interlocutory reinstatement in 2023.
- [14]Dr Chen’s submissions conclude with paragraphs [16] to [18] addressing matters related to the substantive applications and a disciplinary matter which was addressed in a public service appeal and to which reference was made in the Respondent’s submissions in the interlocutory reinstatement application.
Respondent’s submissions
- [15]The GCHHS says that a ‘diligent recitation of the relevant facts and arguments’ in the judgment ‘ought not distract from the fact that the Application was always doomed to fail’. The Respondent says that the discretion to award costs under s 545(2)(a)(i) and (ii) of the IR Act has been enlivened.
- [16]The Respondent says that it does not contend that Dr Chen’s application was made vexatiously and says that it no longer presses for costs to be awarded on an indemnity basis.
- [17]The Respondent says that Dr Chen ‘was squarely put on notice’ regarding the prospects of success of the interlocutory reinstatement application ‘shortly after he filed it’ and that the GCHHS would seek its costs once the application was dismissed.
- [18]Ms Lyndon sent an email to Dr Chen on 20 February 2023 at 5.16pm attaching a letter which stated the GCHHS’s view that his application had no reasonable prospects of success. That letter invited Dr Chen to withdraw the application and explained to Dr Chen that Ms Lyndon had been instructed to seek the GCHHS’s costs upon the application being dismissed.[7] The letter also requested that Dr Chen cease copying employees of the Health Service into his emails.
- [19]That correspondence, relevantly states:
You have previously brought a similar application, in response to which Commissioner Dwyer stated during a mention on 12 May 2021:
The application you’re making in the context of an unfair dismissal application is unique. I’m not familiar with any unfair dismissal application where an interlocutory order is granted for the reinstatement of the employee pending the outcome. Because inevitably, when an unfair dismissal application is filed, the position of the parties in the vast majority of cases will be that the dismissal was valid or the dismissal was unfair. That’ll be the argument between the parties. And the commission of it would be very low – that it would be a very dangerous precedent to set that people be given an interlocutory re-instatement order pending the outcome of whether there’s a valid reason to have dismissed them or not.
The interlocutory orders sought are not orders the Commission is likely to make in the context of these proceedings, particularly since it has been over two years since you worked for the Health Service. It is clear your application has no reasonable prospects of success. In these circumstances, the Commission may exercise its discretion to award costs under section 545 of the Industrial Relations Act 2016 (Qld) against you.
- [20]At 5.25pm, Dr Chen responded by email as follows:
Dr Ms Lyndon
In accordance with quickly as possible provisions and intent of legislation around resolving unfair dismissal, I am content to respond to your correspondence now immediately and will communicate do not intend to withdraw my applications.
Many thanks for your correspondence
Sincerely
Victor Chen
- [21]At 5.30pm, Ms Lyndon responded to Dr Chen urging him to seek legal advice and requesting he confirm that he understood the requirements regarding the sending of emails to other persons who were not a party to his substantive proceeding. That email and the subsequent email communication which followed have been exhibited to Ms Lyndon’s affidavit of 19 May 2023.[8]
- [22]A hearing of Dr Chen’s application was conducted on 15 March 2023. The Respondent notes that at that hearing, counsel for the Respondent said:
We’ve written to Dr Chen in open correspondence urging him to not go ahead with this matter…We’ve done it in a prudent course of time [sic] to limit disputation, avoid cost to the public [purse], and to avoid distractions to having this matter come to conclusion. Now there is nothing unconscionable about that. It protects our client’s position, and it very clearly foreshadows that we will be making a costs application if you’re with us, Commissioner.[9]
The Respondent submits that Dr Chen’s application was doomed to fail
- [23]The Respondent notes the historical context of the proceedings, being that when Dr Chen first made his application for interlocutory reinstatement in May 2021, Dwyer IC noted that there was a dispute about whether Dr Chen had in fact been dismissed and encouraged Dr Chen to seek legal advice before pursuing that application. The Respondent notes that despite the GCHHS withdrawing its jurisdictional objection and conceding that Dr Chen’s employment had ended, Dr Chen waited some 18 months to re-agitate an interlocutory reinstatement application. The Respondent further notes that it emphasised the delay in its submissions, and in the correspondence it sent to Dr Chen referenced above.
- [24]The Respondent says that no explanation for the delay was offered by Dr Chen in his application or written submissions but that in oral submissions at the hearing, he attributed the decision to not pursue his original interlocutory reinstatement application to cost considerations. The GCHHS notes that in Chen No. 4, I rejected this submission on the basis that Dr Chen has demonstrated an ability to pursue his various applications while being unrepresented.
- [25]The Respondent says that Dr Chen’s delay in seeking interlocutory reinstatement proved fatal to Dr Chen’s application, particularly with regard to the other matters relevant to the balance of convenience, which the Respondent summarises as being:
- the indeterminate length of any interlocutory reinstatement order;[10]
- the disruption that would be caused to the workplace by Dr Chen’s return;[11]
- that it was not essential to Dr Chen to return to his casual role for the purposes of maintaining his competency to practise in his speciality;[12] and
- that Dr Chen’s interim reinstatement would divert budgetary resources that have been committed elsewhere.[13]
- [26]The GCHHS says that all the considerations that led to the application being dismissed were present at the time it was filed and that ‘[O]n any objective view, the Application was made “without reasonable” cause’.
- [27]The Respondent says that even if there is any doubt as to whether s 545(2)(a)(i) of the IR Act has been triggered, by the time Dr Chen had the GCHHS’s written submissions on 13 March 2023, it must have been reasonably apparent to him that the application had limited prospects of success. The GCHHS notes that notwithstanding this, Dr Chen persisted in pursing an oral hearing that lasted the better part of a day.
Costs order sought by GCHHS
- [28]The Respondent refers to the full costs incurred by the GCHHS and says that given any costs order ought to be on a party-party basis, the GCHHS submits that a lump sum order equivalent to 40% of its total costs would be appropriate.
- [29]The Respondent says that the court may order that costs be assessed by the Registrar, but that r 70(3) of the Rules does not foreclose a lump sum order.[14] The Respondent submits that a lump sum order would be the appropriate course having regard to the need to avoid further disputation, and the relatively low quantum of the costs sought by the GCHHS. Further, the Respondent says that the costs should be payable forthwith per the default rule in Queensland regarding costs ordered in any interlocutory hearing.[15]
Response to Dr Chen’s submissions
- [30]The Respondent observes that the majority of Dr Chen’s submissions filed 13 June 2023 are not relevant to this application for costs but refer to other interlocutory applications and appeal brought by Dr Chen. The GCHHS says that it will not respond to those matters in its submissions.
- [31]The Respondent notes Dr Chen’s submission that his application for interlocutory reinstatement was ‘lawful, reasonable, practical, appropriate and in fact obligatory’ because the Commission did not exercise its jurisdiction or undertake the processes required in response to his 2021 application for interlocutory reinstatement; and because former colleagues had made representations to him in 2022 about the need for further resourcing in the cardiology department. The GCHHS refers to its submissions regarding Dr Chen’s failure to press the 2021 application during the period from 2021 to February 2023 and submits that the Commission made no failing in respect to dealing with that application in 2021, and that Dr Chen attempted to rely on ‘untested and vague assertions as to what unknown people told him’ in arguing for his interlocutory reinstatement.
Dr Chen’s submissions in reply
- [32]Dr Chen filed his reply submissions on 6 July 2023.
- [33]I note that a previous version of this decision was released to the parties on 1 August 2023 where I said, ‘I also think it is important to note that Dr Chen chose not to submit a response to the submissions of the GCHHS…’. Prior to releasing the decision, my chambers enquired with the Industrial Registry on two separate occasions as to whether Dr Chen had filed his reply submissions. Having been satisfied that the Industrial Registry was not in receipt of Dr Chen’s reply submissions, the decision was released to the parties.
- [34]After the decision was released to the parties, the Respondent wrote to the Industrial Registry on 2 August 2023 to advise that it had identified a factual error in the decision. The Respondent wrote:
We have identified a potential factual error in the decision at [34] where Commissioner Pidgeon states that Dr Chen did not file any submissions in reply. However, Dr Chen did in fact file submissions in reply on 6 July 2023 (see attached email).
We wanted to alert Commissioner Pidgeon to this before the decision is published to the Supreme Court Library website.
- [35]Dr Chen wrote to the Industrial Registry shortly thereafter and said, ‘It is manifest that this Commission decision released yesterday needs to be withdrawn and appropriate reconsideration made’. The Respondent did not oppose this course of action.
- [36]As the decision had not yet been published, my chambers wrote to the parties to advise that the decision would be withdrawn with consideration given to Dr Chen’s reply submissions before the decision was reissued.
- [37]I have subsequently been advised by the Industrial Registry that Dr Chen had, in fact, attempted to file reply submissions on 6 July 2023 and due to an administrative or technological complication, his submissions were not filed.
- [38]Where Dr Chen’s submissions have not served to change parts of the decision issued on 1 August 2023, those parts of the reasons for decision remain unchanged. However, these reasons for decision include substantial additional content including consideration of Dr Chen’s filed submissions. It is the case, however, that the conclusion and order I reached in the unpublished and withdrawn decision remain the same.
- [39]
- Reaffirms his claim that he was unfairly dismissed;
- States that he is seeking reinstatement, compensation for economic loss and ultimately, conversion from casual to permanent employment;
- Says that he has continued to seek that his unfair dismissal application be dealt with as quickly as possible per s 317(8);
- Says that the Commission did not undertake steps required by law subsequent to his application seeking interlocutory reinstatement filed on 2 June 2021;
- Refers to reserved judgments in his Industrial Court of Queensland (ICQ) matters C/2023/2 and C/2021/26; and
- Makes reference to issues relevant to his ICQ matters.
- [40]Dr Chen’s submissions at [7](h)and [25] make reference to matters that were considered at the hearing of his application for interlocutory reinstatement and matters which have occurred since then which he says means that oral submissions made at that hearing by the Respondent ‘are now manifestly seen to be false and misrepresentations’. Dr Chen goes on to say that he now has ‘factual confirmation GCHHS did need new interventional cardiology recruitment… and colleagues now report a newly graduated fellow… has been recruited as a 7th interventional cardiologist around June 2023’. Dr Chen says that the Commission was ‘wrongly influenced’ by submissions he says were ‘manifestly untrue and egregiously non-factual’.[17] Dr Chen says that conclusions I made in Chen No. 4 ‘were based upon wholly erroneous factual assumptions’.[18]
- [41]Dr Chen also makes submissions regarding other errors he says were made in Chen No. 4.[19] Dr Chen says that in that decision, I erred in matters of fact and law in relation to a range of matters. Dr Chen also revisits my decision in an earlier interlocutory matter which he has appealed and judgment is currently reserved.
Dr Chen says his appeal was not ‘doomed to fail’
- [42]Dr Chen sets out a range of matters he says mean that his application was not doomed to fail. In essence, Dr Chen says that the GCHHS filed material since 18 January 2021 that was ‘repeatedly sham, false and misleading’.[20] In summary, Dr Chen says that following his dismissal and his multiple attempts to have his employment converted to permanent since 2014, it was open to him to ‘seek the relevant interlocutory steps in 2021 accorded by law’.[21]
- [43]Dr Chen says that ‘in all factual circumstances the costs discretion under s 545(1)(a)(i) and (ii) of the IR Act cannot be enlivened’. Dr Chen says that an order for him to pay the GCHHS costs:
… would be seen to amount to the Commission improperly enabling ongoing GCHHS and MinterEllison conduct that has been widely objectively viewed by the broad public as vexatious, ‘something more than unreasonable’, cause substantial wastage of tribunal time and wasted public funds since 9 April 2020 that could have been used for direct patient care…[22]
- [44]Dr Chen says he ‘did not mindfully exercise any strategic choice during 2021 to pursue “different rights”’ against the GCHHS but was ‘carried along by alternative steps and processes’. It is unclear to me what Dr Chen means by this, but his submissions regarding his clear dissatisfaction and disagreements with his various legal advisors[23] suggest that he was ‘carried along’ while either represented, or having made a decision that he would be better off representing himself and continuing with his various matters without legal representation.[24]
- [45]Dr Chen responds to the submission of the GCHHS that he was likely acting on advice at the time that his interim reinstatement application had limited prospects of success and says that he ‘will solemnly affirm that instructions to seek interlocutory reinstatement were repeatedly not accepted’ and that there was ‘never formal legal opinion an interlocutory reinstatement application was unreasonable’.[25]
- [46]At paragraphs [22] and [23] of his reply submissions, Dr Chen returns to his position that MinterEllison ‘must recuse itself’ and repeats allegations he has previously made, about ‘serious perceived conflicts of interest’ regarding his previous legal representatives. Dr Chen also makes reference to another application he has before the ICQ, but it is unclear to me from what is written in paragraph [23] of his submissions what he is specifically referring to. I am, however, satisfied that it is not directly relevant to the costs application before me.
- [47]Dr Chen says that proper:
… exercise of this jurisdiction’s powers (including any costs orders) will require faithful abidance of the consistently repeatedly restated intent of the Queensland Parliament enshrining public service employment security and intended role for public servants and stipulated objective criteria to convert to permanent employment in the public service.[26]
- [48]I note here that matters regarding employment security and conversion to permanent employment will be matters to be considered in Dr Chen’s public sector appeal should it be re-enlivened following consideration of his general protections and unfair dismissal matters. This submission does not relate to the matters for consideration in this application for costs.
- [49]Dr Chen appears to foreshadow an argument that the GCHHS will not be able to maintain a position that it has lost trust and confidence in Dr Chen with regard to any ongoing public sector employment relationship.[27] This matter may become an issue at the substantive hearing of the unfair dismissal and general protection matters, however it is not something I am required to consider in this costs application, other than that the GCHHS squarely placed the matter of practicality of reinstatement at issue in its submissions regarding interim reinstatement and this was a factor, whether Dr Chen agrees with that position of the GCHHS or not, which would have contributed to what I conclude below, must have been a reasonable belief that the application had no reasonable prospect of success.
- [50]I note that Dr Chen attaches a number of documents to his submissions in reply.[28] It seems to me that these documents may be relevant as evidence in the substantive matters, or in terms of the circumstances that existed in 2021 when the initial application for interim reinstatement was filed by Dr Chen. They may also be relevant to Dr Chen’s contention during the matters considered in Chen No. 4 that he had established a prima facie case for reinstatement. In Chen No. 4, I accepted that Dr Chen had established a prima facie case. My decision not to reinstate Dr Chen on an interim basis was made following consideration of the balance of convenience rather than that he had not established a prima facie case. To the extent that Dr Chen says the role description he attaches to his closing submissions demonstrates a need for him to be reinstated on an interim basis, I note that this document post-dates the hearing of Chen No. 4. I do not find that the attachments are helpful in a consideration of whether Dr Chen had reasonable belief that the 2023 interim reinstatement application had no reasonable prospects of success.
Consideration regarding the costs application
- [51]The Commission has the power to award costs in interlocutory proceedings.[29] The relevant statutory provision regarding costs is set out above at paragraph [5]. In brief, while the starting position is that a person will bear their own costs, there are certain situations which enliven a discretion to order that a party pay the costs of another party. Here, the GCHHS’s application is brought under section 545(2)(a)(i) or in the alternative, section 545(2)(a)(ii).
- [52]It must be observed that Dr Chen’s submissions in this matter largely address matters that are not before me, or relevant to this costs application. I have addressed this above as I have worked through Dr Chen’s submissions. The submissions either refer to other matters before the Court and Commission or to Dr Chen’s substantive applications which have been allocated to me. While the submissions do not directly address the matters set out at s 545(2)(a), that is whether Dr Chen made this application for interlocutory reinstatement vexatiously or without reasonable cause, or whether it would have been reasonably apparent to Dr Chen that the application had no reasonable prospect of success, I have considered all submissions made by Dr Chen to the extent they can be related back to these relevant questions.
- [53]I have considered the submissions Dr Chen has made regarding information he says he now has available to him which serves to undermine Chen No. 4 regarding his application for interlocutory reinstatement.[30] I have also considered the submissions set out from [10](a)-(e) where Dr Chen points out where he believes I made errors in that decision. Dr Chen also points to errors he says I made in other previous decisions and with regard to which he has filed an appeal which has been heard and for which judgement has been reserved. If Dr Chen believes that the decision in Chen No. 4 was wrong on the basis of new information he has gathered, it is open to him to pursue appeal avenues.
Section 545(a)(i): Was the application made without reasonable cause?
- [54]The terms in s 545(a)(i), ‘vexatiously’ or ‘without reasonable cause’ are to be read disjunctively and not in a composite way.[31] The GCHHS does not contend that the application was made vexatiously and therefore, I am considering only whether Dr Chen’s application was made without reasonable cause. When considering whether an application is made without reasonable cause, the test is not whether the application was ultimately unsuccessful, but whether the application could not succeed at the time when it was made.[32]
- [55]I note the submissions Dr Chen makes regarding his right to seek interim reinstatement in 2021 and his actions in doing so.[33] It is clear that this was an option open to Dr Chen at that time. However, this decision on costs is not about the application made in 2021 and not further pursued when the jurisdictional issue regarding termination was resolved. Dr Chen says he made the 2023 application for interlocutory reinstatement because in his view, the Commission did not properly deal with his previous application for interlocutory reinstatement in 2021. In Chen No. 4, I addressed the previous application and the circumstances surrounding that application. Commissioner Dwyer noted at the time that application was made, that it could not be dealt with while there was a jurisdictional objection being pressed about whether Dr Chen had in fact been dismissed. At the time, Dwyer IC also informed Dr Chen that once that controversy had been dealt with, it was a matter for Dr Chen to request that his interlocutory reinstatement application be considered. It appears that Dwyer IC also expressed a view to Dr Chen about the likely prospects of such an application. If as Dr Chen contends, he brought the application as a result of his 2021 application not being properly addressed by the Commission, it makes absolutely no sense that he did not take steps either at that time, contemporaneous to the concession by the GCHHS that his employment had been terminated, or at any other time in the many months between that first application being made and the 2023 application. While Dr Chen also contends that the application for interlocutory reinstatement was not pressed at that time due to the costs involved in doing so, and that he was pursuing other matters in the Commission, in Chen No. 4, I concluded that Dr Chen had made a deliberate decision not to pursue the interlocutory application at that time.
- [56]I understand Dr Chen’s submission that his instructions to his representatives regarding interlocutory reinstatement were repeatedly not accepted. While Dr Chen says he was not in receipt of formal legal advice about this, it seems to me that if he was repeatedly providing such instructions and they were repeatedly ‘not accepted’, Dr Chen may have reasonably formed a view that there was a reason for this. In any case, Dr Chen appears to have relieved himself of legal representation regarding that matter and made the application himself. Dr Chen has been in the driver’s seat of his various matters before the Commission and has made a range of decisions about what to pursue or not pursue. It seems that the decision not to pursue interlocutory reinstatement in 2021 was likely made because Dr Chen was focusing on other avenues or appeals were more likely to lead to the outcome he was seeking. While Dr Chen complains that the Commission did not deal with his application at the time, I have not been presented with any evidence that he took steps to enliven that application. It appears to me that Dr Chen filed the 2023 interlocutory application because he formed a view that there was a need for further interventional cardiologists to be employed and that employment processes may be underway. Dr Chen’s submissions make reference to colleagues telling him there was a need for additional resources and that his return would be welcomed by them.
- [57]It is clear that Dr Chen did not have the benefit of legal advice at the time he filed the 2023 application. While for the reasons I give below, I find that it must have been apparent to Dr Chen either at the time of or soon after filing that his application had no reasonable prospects of success, I cannot conclude on the balance of probabilities that at the time he filed the application, he believed his application could not succeed.
Section 545(a)(ii): Would it have been reasonably apparent to Dr Chen that the application had no reasonable prospect of success?
- [58]While consideration of whether an application has been brought without reasonable cause per s 545(a)(i) is focused on the relevant facts and circumstances at the time the application is filed, a consideration of whether it was reasonably apparent that the application had no reasonable prospects of success per s 545(a)(ii) was described by Davis J in Kelsey v Logan City Council & Ors[34] as prescribing ‘a separate and distinct jurisdictional fact giving rise to a discretion to award costs’ and that a consideration of whether s 545(a)(ii) is engaged can take into account facts which arise after the commencement of proceedings.[35]
- [59]Dr Chen’s submissions do not directly address the matter of whether it would have been ‘reasonably apparent’ to him that his application had ‘no reasonable prospect of success’. While Dr Chen appears to be convinced that there is a current need for his services at the GCHHS, this matter alone, particularly in a context where there was no evidence to demonstrate such a need, could not form the basis of a belief that the application had a reasonable prospect of success. Dr Chen provides a role description from June 2023 which he says confirms that there was a need for an additional interventional or general cardiologist. This is not a document that existed at the time of the application or at the hearing. I agree with the GCHHS’s submission that prior to the hearing, and certainly after receiving the GCHHS’s written submissions regarding the interlocutory reinstatement application, Dr Chen would have been well aware that his application faced several significant hurdles. As early as 2021 when the first application was made, Dwyer IC expressed some observations as to the prospects of such an application. As discussed above, Dr Chen’s choice not to pursue the application in favour of other appeals at a time when he was either legally represented or had recently become self-represented is also a strong indication regarding the view taken at that time of the prospects of such an application, even if, as Dr Chen submits, he did not have formal legal advice to that effect.
- [60]The principle of bringing an application for injunctive relief in a timely way is well-known. It must be noted that the delay in Dr Chen making his application for reinstatement on an interlocutory basis weighed heavily against an order for injunctive relief. In Chen No. 4, I considered Russell v Institution of Engineers Australia t/a Engineers Australia where Foster J said, ‘[a]pplications for interim reinstatement of employment must be brought very promptly after termination’, and ‘serious delay’ militates against interlocutory relief. In the absence of a reasonable explanation, Dr Chen’s substantial delay in bringing his application was a significant consideration.
- [61]I set out the matters to be addressed in considering an interlocutory reinstatement application at paragraph [48] of Chen No. 4. Dr Chen knew at the time of his application that he would need address these matters by establishing a prima facie case and further, demonstrate that the balance of convenience favoured his reinstatement. Given the history of this matter, I find Dr Chen would have been aware that the application would be vigorously opposed by the GCHHS. On the day the application was made, the Respondent wrote to Dr Chen to firmly state its position. The factual circumstances at the time, addressed in detail in the Respondent’s written submissions in reply to the Dr Chen’s application for interlocutory reinstatement, were such that the balance of convenience was highly unlikely to favour Dr Chen’s interlocutory reinstatement.
- [62]I am satisfied that if Dr Chen was genuinely of the view that his application had any prospect of success at the time he filed it, he could not have continued to hold such a view when he decided to press ahead with the interlocutory reinstatement application at various junctures, namely: the receipt of correspondence from the Respondent immediately following the filing of Dr Chen’s application;[36] and upon receipt of the detailed written submissions of the Respondent.
Order for costs
- [63]I note Dr Chen’s views that an award of costs would represent the Commission improperly enabling the poor conduct of the Respondent. A costs order is not made on the basis of rewarding or punishing the conduct of a party. I make this order on the basis of the factors set out in this decision, namely whether the discretion to award costs is enlivened on the basis that the matters in either s 545(a)(i) or (ii) are made out.
- [64]The general rule set out in s 545(1) is that each party must bear its own costs in relation to a proceeding before the Commission. However, where the Commission is satisfied that it would have been reasonably apparent to the party that the application had no reasonable prospect of success, the Commission may order a party to pay costs incurred by another party. For the reasons given above, I am satisfied that s 545(a)(ii) has been met and that it would have been reasonably apparent to Dr Chen that his application for interlocutory reinstatement had no reasonable prospect of success. I have determined to order that Dr Chen pay the GCHHS’s costs.
- [65]Ms Lyndon’s affidavit of 19 May 2023 states that the Respondent has incurred a total of $13,335 in costs in relation to the application.[37] The Respondent submits that a lump sum order equivalent to 40% of its total costs would be appropriate. Rule 70 enables me to have regard to the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999 or any other matter. Rule 70 also enables me to require the Registrar to undertake a costs assessment. I do not think this is a case requiring that costs be assessed by the Registrar. Further, in circumstances where the Respondent has taken what I consider to be a measured approach in seeking 40% of the costs incurred and where the exact costs incurred have been deposed to and do not appear to be excessive, I accept the GCHHS’s position. Further, I am satisfied that the costs should be payable following this order, rather than being payable at the conclusion of Dr Chen’s substantive matters before the Commission.
Order
- [66]I order:
- That the Applicant pay the Respondent’s costs at an amount of $5,334, being 40% of the total costs incurred by the Respondent being $13,335.
- [67]I make no order as to the costs incurred by the Respondent in bringing this costs application.
Footnotes
[1] [2023] QIRC 128 (‘Chen No. 4’).
[2] GP/2020/27 and TD/2021/20.
[3] Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 002; Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 012.
[4] Chen No. 4 (n 1).
[5] At the request of the parties, those directions were amended to refer to the GCHHS as the Applicant and Dr Chen as the Respondent.
[6] Dr Chen’s submissions filed 13 June 2023, [8]-[10].
[7]Affidavit of Ms Catherine Ann Lyndon filed 19 May 2023, [3]; exhibit CAL-1.
[8] Ibid CAL-2.
[9] Ibid [6]; T 1-67, ll 1-37.
[10] Chen No. 4 (n 1) [57], [69].
[11] Ibid [60].
[12] Ibid [61].
[13] Ibid [69].
[14] Industrial Relations (Tribunals) Rules 2011 (Qld) r 70(3).
[15] Uniform Civil Procedure Rules 1999 (Qld) r 682; Coulter v Ryan [2007] 2 Qd R 302, nn 28.
[16] Dr Chen’s reply submissions filed 6 July 2023 [1]-[14].
[17] Ibid [25].
[18] Ibid [26].
[19] Ibid [10](a)-(e).
[20] Ibid [12].
[21] Ibid [13].
[22] Ibid [14].
[23] Ibid [16](b)-(c)
[24] Ibid [16](g).
[25] Ibid [18].
[26] Ibid [24].
[27] Ibid [27].
[28] Ibid; Text message exchange between Mr Alistair Macpherson and Mr Victor Chen, 6 May 2021, 20 May 2021, 21 April 2021 and 22 April 2021; Gold Coast Hospital and Health Service, Senior Staff Specialist or Staff Specialist (Interventional and General Cardiology) (Role Description No GC491265, closing 13 June 2023).
[29] Industrial Relations Act 2016 (Qld) s 536.
[30] Dr Chen’s reply submissions filed 6 July 2023, [33]-[34].
[31]State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 93, [12].
[32] Yousif v Workers’ Compensation Regulator [2019] ICQ 10, [31] citing MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, 371.
[33] Dr Chen’s closing submissions filed 6 July 2023, [13], [16].
[34] [2021] ICQ 11.
[35] Ibid [25(d)] citing Maher v Isaac Regional Council [2020] QIRC 191 from [59].
[36] The contents of that correspondence are discussed above at [18]-[19].
[37] Affidavit of Ms Catherine Ann Lyndon filed 19 May 2023, [8].