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  4. Mackenzie v State of Queensland (Queensland Health) (No 2) - [2023] QIRC 282

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Mackenzie v State of Queensland (Queensland Health) (No 2)[2023] QIRC 282

Mackenzie v State of Queensland (Queensland Health) (No 2)[2023] QIRC 282

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mackenzie v State of Queensland (Queensland Health) (No 2) [2023] QIRC 282

PARTIES:

BEVERLEY MACKENZIE

(applicant)

v

STATE OF QUEENSLAND (QUEENSLAND HEALTH)

(respondent)

FILE NO/S:

TD/2022/133

PROCEEDING:

Application for costs considered on written submissions without oral hearing

DELIVERED ON:

29 September 2023

MEMBER:

Davis J, President,

O'Connor, Vice President,

Dwyer, Industrial Commissioner

ORDERS:

  1. 1.That the applicant pay the respondent's costs of and incidental to the appeal, on the standard basis, to be calculated on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999.
  2. 2.The costs be in an amount agreed, or if the parties fail to reach agreement by 20 October 2023:
  1. (a)
    the respondent is to file in the Industrial Registry and serve on the applicant its schedule of costs claimed by 17 November 2023;
  2. (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
  3. (c)
    costs are to be assessed by the Industrial Registrar following an application for costs assessment being made by the respondent and the Registrar may have regard to the Uniform Civil Procedure Rules 1999, Chapter 17A when assessing the costs.
  1. 3.The applicant is to pay the respondent's costs of any assessment.
  2. 4.Any costs agreed or assessed are to be paid within 28 days of agreement or assessment.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – where application for reinstatement – where matter referred to Full Bench – where respondent applied to strike out application – where application commencing proceedings struck out by Full Bench – where respondent sought an order for costs – where costs do not follow the event – where respondent must show that application was made without reasonable cause or that it was reasonably apparent that it had no prospect of success – whether application necessary or desirable in the public interest – whether costs ought to be awarded against the applicant

LEGISLATION:

Industrial Relations Act 2016, s 320, s 541, s 545

Industrial Relations (Tribunals) Rules 2011, r 70

Uniform Civil Procedure Rules 1999, r 681

CASES:

Kanan v Australian Postal and Telecommunications Union (1992) 431 IR 257, cited

Kelsey v Logan City Council and Ors [2021] ICQ 11, cited

Latoudis v Casey (1990) 170 CLR 534, cited

Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121, related

Maher v Isaac Regional Council [2020] QIRC 191, cited

MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370, cited

Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058, cited

Oshlack v Richmond River Council [1998] 193 CLR 72, cited

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35, cited

APPEARANCES:

Mr M Bonaccorso for the Applicant

Mr L Grant, Counsel, Crown Law for the Respondent.

  1. [1]
    On 21 April 2023, the Full Bench heard and determined an application by the State of Queensland (Queensland Health) (the Respondent) to dismiss an Application for Reinstatement filed by Ms Beverley Mackenzie (the Applicant) on 12 April 2022 (TD/2022/133).
  2. [2]
    The Full Bench released the Reasons for Decision on 5 May 2023[1] and ordered the parties to file submissions in relation to costs.  The parties were provided with liberty to apply for leave to make oral submissions on or before 9 June 2023.  Written submissions were filed.  No application was received from either party and therefore the question of costs will be decided on the written submissions filed by the Applicant on 5 June 2023 and the Respondent on 22 May 2023.
  3. [3]
    The following is the decision of the Full Bench in relation to costs.

Background

  1. [4]
    The Applicant's employment was terminated because of her failure to comply with a direction issued to her by a responsible person, to receive or provide evidence of receiving two doses of a COVID-19 vaccine.  She made an application for reinstatement.
  2. [5]
    The Respondent applied to the Commission for an order pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (the IR Act) striking out or dismissing the Applicant's Application in its entirety on the basis that further proceedings by the Commission were not necessary or desirable in the public interest.
  3. [6]
    The Respondent stated the application was based on grounds previously (and thoroughly) advanced and determined by the Commission and are matters now well settled against the Applicant.  Further, the Applicant did not raise any unique circumstances in her application or in her reasons for refusing to be vaccinated that would merit the use of the Commission's resources to hear her application.
  4. [7]
    The Applicant opposed the application to dismiss and submitted that her case should proceed to hearing.  The Respondent prevailed and the Applicant's application was dismissed.

The statutory framework

  1. [8]
    Proceedings brought pursuant to the IR Act are not proceedings where "costs follow the event" is the usual rule.[2]
  2. [9]
    Section 545 of the IR Act provides:

"545 General power to award costs

  1. (1)
    A person must bear the person's own costs in relation to a proceeding before the court or commission.
  2. (2)
    However, the court or commission may, on application by a party to the proceeding, order—
  1. (a)
    a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied—
  1. (i)
    the party made the application or responded to the application vexatiously or without reasonable cause; or
  2. (ii)
    it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or
  1. (b)
    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—
  1. (i)
    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
  2. (ii)
    because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
  1. (3)
    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."
  1. [10]
    In Kelsey v Logan City Council & Ors,[3] the President of the Industrial Court of Queensland said, in relation to s 545 of the IR Act:
  1. "[25]
    Section 545 and provisions like it have been the subject of analysis in various decisions.  The following principles can be identified:
  1. (a)
    The starting point is that each party bears their own costs.[4]
  2. (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.[5]
  3. (c)
    The assessment of 'reasonable cause' in s 545(2)(a)(i) is:
  1. (i)
    an objective assessment;[6] and
  2. (ii)
    made considering the facts existing as at the time of the institution of the proceedings, here the appeal.[7]
  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."[8]
  1. [11]
    In Kanan v Australian Postal and Telecommunications Union,[9] Wilcox J considered the term "without reasonable cause":

"It seems to me that one way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause."[10]

  1. [12]
    In his explanation of the phrase "without reasonable cause", Hall P in MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland,[11] said:

"objectively recognisable as one which could not succeed at the time when the application was made."[12]

  1. [13]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (the Rules) provides:

"70 Costs

  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. (a)
    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. (b)
    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. (c)
    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."

The submissions of the parties

  1. [14]
    The Applicant's submissions largely seek to agitate the legitimacy of her dismissal and do little to specifically address the costs issue.
  2. [15]
    In summary, the Applicant states, "financial liability in relation to QLD Health's defence of this unfair dismissal will not be accepted by either the legal fiction or the living man/woman in this application".[13]
  3. [16]
    In applying for costs, the Respondent relies on the events and material filed in Attachment A to the application in existing proceedings filed on 10 November 2022 and the following:
    1. the Applicant was put on notice about the Respondent's position in the Employer Response to her reinstatement application filed on 12 May 2022;
    2. at the mention on 1 March 2023 the Applicant was referred to the recent decision in Mocnik & Others v State of Queensland (Queensland Health);[14]  and
    3. the Respondent's outline of submissions filed on 12 April 2023.[15]
  4. [17]
    As already noted by the Full Bench, the Applicant failed to address the core statutory framework in relation to her application for reinstatement pursuant to s 320 of the IR Act.
  5. [18]
    The application was one that was "objectively recognisable as one which could not succeed at the time when the application was made" because the Applicant did not engage with the provisions entitling her to make the application; and she ignored well settled principles about the Employer's lawful and reasonable direction.[16]
  6. [19]
    As the Applicant pressed the application without regard to the relevant provisions underpinning her application which she had the onus to prove[17] and otherwise distracted her claim with issues already settled or outside the scope of a reinstatement application, the application could not succeed; was made with no reasonable cause; and enlivened s 545(2)(a)(i) of the IR Act.[18]
  7. [20]
    The Respondent submits that it should have been reasonably apparent to the Applicant that the application could not proceed on the grounds relied upon and had no reasonable prospects of success.  This realisation was possible well before the Respondent incurred expense responding to the application and preparing for an oral hearing (up to 28 January 2023).[19]
  8. [21]
    The Respondent seeks that the Applicant pay the Respondent's costs of and incidental to the proceedings and incidental to these proceedings, on the standard basis, calculated on the scale of costs for Magistrates Courts in the Uniform Civil Procedure Rules 1999.

Consideration

  1. [22]
    The Applicant's application was brought to the Commission on a footing which was misconceived and doomed to fail.  The Applicant's case was on any view of the material, "so lacking in merit or substance as to be not fairly arguable".
  2. [23]
    In the reasons for dismissing the Applicant's application, the Full Bench relevantly wrote:
  1. "[67]
    The submissions of the Applicant fail to address any of the matters contained in s 320 of the IR Act. Ms Mackenzie has fundamentally failed to grapple with the true nature of her application for reinstatement and has, instead, focused on trying to mount an argument to justify her decision not to obey a lawful direction of her employer.
  2. [68]
    The Applicant has not argued, nor does the material before the Full Bench suggest, that she was denied procedural fairness. Indeed, the termination letter of 9 March 2022 from Mr Thacker clearly, and in some detail, notified her of the reasons for her dismissal and that her dismissal related to her conduct as an employee of the Respondent. The Applicant was given an opportunity to explain her refusal to obey HED 12/21; she was sent a show cause letter on 17 February 2022 particularising the allegations against her and given an opportunity to respond; she was invited through a show cause process to demonstrate why her employment should not be terminated; and on 9 March 2022, her employment was terminated with four weeks' pay in lieu of notice.
  3. [69]
    The Applicant has failed to articulate why her dismissal was arguably unfair.[20]
  4. [70]
    For the reasons advanced above, we are of the view that further proceedings in the Commission are not necessary or desirable in the public interest.
  5. [71]
    The arguments advanced by the Applicant in her application for reinstatement are not novel or unique. They raise no reasonable excuse and ventilate many arguments which have already been the subject of much judicial determination both within this jurisdiction and elsewhere.
  6. [72]
    On any view of the material before the Full Bench and having the benefit of hearing from the representative of the Applicant, there are insufficient prospects of success to justify the matter progressing to hearing. Accordingly, we are of the view that we ought to refrain from hearing the cause as further proceedings by the Commission are not necessary or desirable in the public interest."[21]
  1. [24]
    The Employer Response filed on 12 May 2022 put the Applicant on notice as to the Respondent's position.  At a mention on 1 March 2023 the Commission drew the Applicant's attention to the decision of Mocnik & Others v State of Queensland (Queensland Health)[22] which had authoritatively settled a series of "common questions".
  2. [25]
    In the Applicant's affidavit of 8 March 2023, she deposed that her "case shares little commonality" to the Mocnik matter.  However, the Applicant does not articulate how her case can be distinguished from Mocnik.
  3. [26]
    Even if the Applicant was not aware of the hurdles faced at the time of making the application, she was clearly on notice from 12 May 2022 of the Respondent's position that:
    1. the direction impugned by the Applicant namely, HED 12/21 was lawful and reasonable;
    2. there was no obligation on the Respondent to provide the Applicant with assurances concerning the safety and efficacy of the COVID-19 vaccines, and nor was it required to undertake its own risk assessment; and
    3. dismissal was proportionate, particularly where the effect of the CHO Direction was that the Applicant could not lawfully enter the service facility as an employee without being vaccinated.
  4. [27]
    The Applicant failed to come to grips with the nature of the matter before the Full Bench.
  5. [28]
    Moreover, in her submissions in response to the application for costs, the Applicant did not advance any arguments to answer the submissions of the Respondent but instead asserted that her application was not made vexatiously or without reasonable cause.  She submitted:
  1. "28.For reinstatement applications, the 'losing' party will not automatically be ordered to pay the costs of the other side - that only occurs if a further application for costs is made and the Commission is satisfied that
  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 respondent to the application had no reasonable prospect of success.
  1. 29.The application was neither vexatious or without reasonable cause (as per affidavits to QLD Health and documents presented to QIRC) nor was it reasonably apparent that there was no reasonable prospect of success.
  2. 30.McLennan IC referred the matter to the full bench and the matter proceeded with the Presidents approval.  This suggests that that was reasonable cause and a prospect of success."
  1. [29]
    Section 563 of the IR Act bestows a discretion upon the Commission to award costs.  That discretion only arises if one of two jurisdictional facts is established.  They are:
  • satisfaction by the Commission that the application was made vexatiously; or
  • satisfaction by the Commission that the application was made "without reasonable cause".
  1. [30]
    It is not submitted by the Respondent that the application or the response was made vexatiously.
  2. [31]
    This is a matter in which it would have been reasonably apparent that the application had no reasonable prospect of success.
  3. [32]
    The Applicant did not adduce any evidence to support her contentions, but rather sought to rely on a series of articles and extracts apparently sourced from the internet.  It was submitted that the Applicant's reasonable excuse is that the novel gene therapy injections are unsafe and ineffective and that the purpose stated by the Respondent "is perpetuating the fraud initiated by QLD Health (the state)"; that expert opinion is the lowest level of evidence because it is highly prone to bias.  Expert opinion of the kind postulated over the last two years in support of gene therapy mandates is inferior to the data accumulated from recognised government sources and peer reviewed publications; and the "science" of 12-18 months ago is less accepted in the community and fast being understood to be the propaganda that it really was.
  4. [33]
    The outcome of the proceedings before the Commission has occurred in circumstances where the Applicant has either been reluctant or simply failed to respond to the case against her and, in particular, failed to come to terms with the well settled case law. 
  5. [34]
    The application was never going to succeed.  It was, on any view of the material before the Commission objectively recognisable as one which could not succeed at the time when the application was made. 
  6. [35]
    An award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.[23]
  7. [36]
    In our view, the discretion to award cost under s 545 of the IR Act has been enlivened and should be exercised in favour of the Respondent.  Accordingly, we make the following orders.

Order

  1. [37]
    The orders are:
  1. 1.That the applicant pay the respondent's costs of and incidental to the appeal, on the standard basis, to be calculated on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999.
  2. 2.The costs be in an amount agreed, or if the parties fail to reach agreement by 20 October 2023:
  1. (a)
    the respondent is to file in the Industrial Registry and serve on the applicant its schedule of costs claimed by 17 November 2023;
  2. (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
  3. (c)
    costs are to be assessed by the Industrial Registrar following an application for costs assessment being made by the respondent and the Registrar may have regard to the Uniform Civil Procedure Rules 1999, Chapter 17A when assessing the costs.
  1. 3.The applicant is to pay the respondent's costs of any assessment.
  2. 4.Any costs agreed or assessed are to be paid within 28 days of agreement or assessment.

Footnotes

[1] Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121.

[2] Uniform Civil Procedure Rules 1999, r 681; Oshlack v Richmond River Council [1998] 193 CLR 72, per McHugh J, at 97.

[3] [2021] ICQ 11.

[4] Section 545(1).

[5] See the opening words of s 545(2).

[6] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35, [12]‑[14];  MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370.

[7] Kanan v Australian Postal and Telecommunications Union (1992) 431 IR 257.

[8] Maher v Isaac Regional Council [2020] QIRC 191 from [59].

[9] (1992) 431 IR 257.

[10] Ibid, at 264-265.

[11] (2000) 164 QGIG 370, 371.

[12] Ibid.

[13] Applicant's submissions on costs filed 5 June 2023, [62].

[14] [2023] QIRC 058.

[15] Respondent's submissions on costs filed 22 May 2023, [4].

[16] Ibid, [18].

[17] Ibid, [20].

[18] Ibid, [19].

[19] Ibid, [28].

[20] Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121.

[21] Ibid.

[22] [2023] QIRC 058.

[23] Latoudis v Casey (1990) 170 CLR 534, 543.

Close

Editorial Notes

  • Published Case Name:

    Mackenzie v State of Queensland (Queensland Health) (No 2)

  • Shortened Case Name:

    Mackenzie v State of Queensland (Queensland Health) (No 2)

  • MNC:

    [2023] QIRC 282

  • Court:

    QIRC

  • Judge(s):

    Davis J, O'Connor, Dwyer

  • Date:

    29 Sep 2023

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
Kanan v Australian Postal and Telecommunications Union (1992) 431 IR 257
3 citations
Jump To
Cite 1 - (1992) 431 IR 257
Cite 2 - (1992) 431 IR 257
Cite 3 - (1992) 431 IR 257
Kelsey v Logan City Council [2021] ICQ 11
2 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121
3 citations
Jump To
Cite 1 - [2023] QIRC 121
Cite 2 - [2023] QIRC 121
Cite 3 - [2023] QIRC 121
Maher v Isaac Regional Council [2020] QIRC 191
2 citations
Jump To
Cite 1 - [2020] QIRC 191
Cite 2 - [2020] QIRC 191
MIM Holdings Ltd v AMWU (2000) 164 QGIG 370
3 citations
Jump To
Cite 1 - (2000) 164 QGIG 370
Cite 2 - (2000) 164 QGIG 370
Cite 3 - (2000) 164 QGIG 370
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
3 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58
Cite 3 - [2023] QIRC 58
Oshlack v Richmond River Council (1998) 193 CLR 72
2 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Wanninayake v Queensland [2015] ICQ 35
2 citations
Jump To
Cite 1 - [2015] ICQ 35
Cite 2 - [2015] ICQ 35

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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