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  4. Dorman v State of Queensland (Queensland Health) - [2023] QIRC 335

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Dorman v State of Queensland (Queensland Health)[2023] QIRC 335

Dorman v State of Queensland (Queensland Health)[2023] QIRC 335

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dorman v State of Queensland (Queensland Health) [2023] QIRC 335

PARTIES:

Dorman, Delma

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2022/197

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

23 November 2023

HEARING DATES:

17 March 2023 and 23 May 2023

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

  1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matter TD/2022/197 are discontinued.
  1. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the applicant in matter TD/2022/197, Mr Gareth Rogers, must pay the Respondent's costs in the amount of $9,062.00 within 14 days of the date of this order.
  1. Direct the Industrial Registrar forward a copy of this decision to the Legal Services Commissioner for her consideration.

CATCHWORDS:

INDUSTRIAL LAW – DISMISSAL –  APPLICATION FOR REINSTATEMENT – where the applicant filed an application for reinstatement after she was dismissed for non-compliance with the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements – where the applicant requested to discontinue proceedings on the weekend before the hearing of the matter – where request to discontinue proceedings objected to by respondent – where the respondent has applied for its costs – consideration of whether to award costs against the applicant or the applicant’s representative

LEGISLATION:

Australian Solicitors’ Conduct Rules r 3, r 4, r 17

Fair Work Act 2009 (Cth) s 401

Health Employment Directive 12/21 Employee COVID-19 vaccination requirements

Industrial Relations (Tribunals) Rules 2011 (Qld) r 13A, r 68, r 70

Industrial Relations Act 2016 (Qld) s 317, s 428, s 429, s 531, s 541, s 545

Legal Profession Act 2007 (Qld) s 5, s 6, ch. 4

Workplace Relations Act 1996 (Cth) s 170CJ

CASES:

Attorney General v Wentworth (1988) 14 NSWLR 481

Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436

Golding v Sippel and Laundry Chute Pty Ltd [2021] ICQ 014

Ipswich City Council v Wendt & Ors [2020] QIRC 164

Kelsey v Logan City Council & Ors [2021] ICQ 011

Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2011] FWA 651

Latoudis v Casey (1990) 170 CLR 534

Marriage v Devine Ltd (2005) 178 QGIG 118

Sharkey v Life Without Barriers [2019] FWCFB 7644.

Veal v Sundance Marine Pty Ltd [2013] FWCFB 8960

Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187

APPEARANCES:

The applicant appeared on her own behalf

Mr G. Rogers (with leave to be heard)  appeared on his own behalf

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

Reasons for Decision

Introduction

  1. [1]
    Ms Delma Dorman was employed by the State of Queensland (Queensland Health) ('the Respondent') from 1 January 2007 until she was dismissed on 20 July 2022. At the time of her dismissal, Ms Dorman was employed as an Indigenous Community Liaison Officer at the Caboolture Hospital within the Metro North Hospital and Health Service.
  1. [2]
    Ms Dorman was dismissed as a result of her failure to comply with the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the directive'), in that she failed to receive a first and second dose of a COVID-19 at the times prescribed by the directive. Following the typically extensive show cause process, Ms Dorman's employment was terminated.
  2. [3]
    On 25 August 2022, Ms Dorman filed in the Industrial Registry a Form 12 - Application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('IR Act') ('the proceedings').[1]
  1. [4]
    Following the series of events that are detailed below, Ms Dorman subsequently requested to discontinue the proceedings. The Respondent did not consent to Ms Dorman's request, except in circumstances where its costs were paid. Consequently, the matter proceeded to hearing in respect of the question of costs.
  1. [5]
    An issue in the costs proceedings was whether Ms Dorman's representative ought to pay the Respondent's costs. In the circumstances, the summary of relevant facts set out below includes specific attention to matters relevant to the Commission's consideration of costs orders against representatives. 

Background

Ms Dorman's representation

  1. [6]
    Ms Dorman was initially represented by Ms Natasha Misko, an agent who described herself as a 'senior human rights advocate' from an organisation called 'Human Rights Advocates Australia'.
  1. [7]
    On or about 8 August 2022, Ms Misko attempted to file in the Industrial Registry an (unsigned) Form 12 – Application for Reinstatement. Given the application was unsigned (and then later incorrectly signed by Ms Dorman), it was not accepted for filing as it did not comply with the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').[2]
  1. [8]
    The deficiencies in the application were eventually remedied by Ms Misko on 25 August 2022. By this stage, given the termination of Ms Dorman's employment occurred on 20 July 2022, the application was filed outside the statutory time limit prescribed by 317(2)(a) of the IR Act. The application for reinstatement ought to have been filed on or before 10 August 2022.[3]
  1. [9]
    The application filed by Ms Dorman on 25 August 2022 asserts inter alia that:
  • She was terminated for 'not complying with a direction to be part of a clinical trial';
  • Given 'the lack of efficacy and overwhelming data reflected by TGA and ABS indicating serious side effects, including death, it is unreasonable to terminate me for not participating in the phase 3 trial'; and
  • 'No GP is able to vaccinate me given I am being coerced by my employer witch (sic) negates consent under the Constitution'. 
  1. [10]
    The matter was listed for a mention at 9:30am on 27 September 2022. At 8:28am that morning, the Industrial Registry received from Mr Gareth Rogers of 'Reignite Democracy Australia' a Form 36 – Notice of change of lawyer or agent. The Industrial Registry did not accept the form for filing as it was unsigned and therefore did not comply with the Rules.[4]
  1. [11]
    At the mention, Ms Misko (who appeared for Ms Dorman) was at pains to ensure the Commission understood that she was handing carriage of the matter over to Mr Rogers, and that she would have no further conduct of the matter on behalf of Ms Dorman.[5] Additionally, notwithstanding her oral representations, Ms Misko had not attended to filing a Form 35 – Notice of withdrawal of appointment of lawyer or agent. 
  1. [12]
    As Ms Misko was still Ms Dorman's representative on record, she was informed at the mention that the Respondent wished to press a jurisdictional objection, namely, that the application was filed outside of the statutory time limit prescribed by 317(2)(a) of the IR Act.[6]
  1. [13]
    In addition to this objection, Ms Misko was also informed by the Commission that her client would be required to address a preliminary issue raised at the instigation of the Commission, namely, whether further proceedings were necessary or desirable in the public interest within the meaning contemplated by s 541(b)(ii) of the IR Act.[7]
  1. [14]
    By Directions Order dated 27 September 2022, the parties were ordered to file submissions addressing these two preliminary issues. A copy of the Directions Order was also sent to Mr Rogers in anticipation of him assuming the role of Ms Dorman's representative.
  1. [15]
    On 30 September 2022, after these directions were issued, Mr Rogers filed in the Industrial Registry a properly executed Form 36 – Notice of change of lawyer or agent. Mr Rogers then became Ms Dorman's representative on record.

First submissions filed in response to the Directions Order

  1. [16]
    The submissions originally filed by Mr Rogers in accordance with the Commission's Directions Order were filed three days late on 28 October 2022 (first contravention).  Further, a perusal of its contents gave rise to a number of immediate concerns for the Commission.
  1. [17]
    Firstly, the submissions completely failed to include any submission addressing the jurisdictional barrier of non-compliance with the prescribed time limit for filing of the application.
  1. [18]
    Secondly, the submissions purportedly addressing the public interest issue appeared to be an amalgam of template submissions of a generic nature that made broad 'anti-vaccine' statements, but also (significantly), they made no reference to the particulars relied on by Ms Dorman in her application.  Indeed, the submissions made no material reference to Ms Dorman or her application at all.
  1. [19]
    Additionally, the submissions made no reference to any of the numerous binding or influential Queensland authorities in respect of non-compliance by employees with vaccine mandates. Further, the submissions did not make any reference to authorities or other considerations relevant to the exercise of the discretion pursuant to s 541(b)(ii) of the IR Act.
  1. [20]
    The submissions were, in simple terms, woefully incompetent. 
  1. [21]
    The matter was subsequently listed for further mention on 4 November 2022. The Commission's intention for the listing was to bring these concerns to Mr Rogers' attention. Mr Rogers and Ms Dorman were directed to attend. Without notice or leave to be excused, neither of them did (second contravention). Instead, Ms Nicole Kuth was in attendance by telephone (without leave) (third contravention) on behalf of Mr Rogers.  Ms Kuth holds herself out as a solicitor with Reignite Democracy Australia.[8]
  1. [22]
    It was immediately apparent to the Commission that Ms Kuth had little to no understanding of Ms Dorman's matter. Nevertheless, the mention proceeded. Ms Kuth was expressly directed to inform Mr Rogers that the submissions filed were so deficient and misconceived that, if the matter proceeded further, the Commission was very much open to a personal costs order against him, should one be sought pursuant to s 545(2)(b) of the IR Act.[9]

Amended submissions

  1. [23]
    On 10 November 2022, Mr Rogers filed another set of submissions without leave of the Commission or consent from the Respondent which (presumably) was an attempt to address the matters raised at the mention on 4 November 2022. They absolutely did not.
  1. [24]
    Apart from minor alterations to the opening paragraphs that (unsuccessfully) attempted to address the objection in respect of the application having been filed outside of the statutory time limit prescribed by s 317(2) of the IR Act, the submissions remained largely identical to the earlier submissions filed i.e. they were template anti-vaccine submissions that did not address any binding or influential Queensland decisions or the unique particulars of Ms Dorman's claim.  
  1. [25]
    Accordingly, the matter was (again) listed for mention to address the filing of submissions without leave which now purported (but wholly failed) to address the deficiencies of the earlier submissions. The listing notice required the attendance of Mr Rogers and Ms Dorman at the further mention. 
  1. [26]
    The matter proceeded to a further mention on 15 November 2022. On this occasion, Mr Rogers appeared (without seeking leave) by telephone (fourth contravention). Ms Dorman failed to attend as directed (fifth contravention).
  1. [27]
    Mr Rogers was invited to explain the unsolicited filing of amended submissions without leave. The most generous interpretation of his response is that either Ms Kuth had failed to properly communicate the comments that the Commission had made previously about the earlier submissions, or that he had failed to understand her, or both.
  1. [28]
    It therefore became necessary to reiterate to Mr Rogers the concerns held by the Commission regarding the inadequacy of the filed submissions in so far as they failed to address the relevant considerations pursuant to s 541 of the IR Act.
  1. [29]
    It was also necessary to reiterate the risk of a personal costs order to Mr Rogers. At that point in the proceedings, when the Commission began to put Mr Rogers on notice of these matters, he abruptly interjected and said:[10]

MR ROGERS: That's never going to happen. I won't be paying those costs and we'll simply appeal the matter Commissioner. If you don't want to do your job, we'll get someone else to do it.

  1. [30]
    Mr Rogers was cautioned about this disrespectful language.[11] Mr Rogers was placed on clear notice at this mention that, because of his thoroughly misconceived submissions, he was at risk of being personally the subject of a costs order.
  1. [31]
    Additionally, in respect of the disposition of the amended submissions filed without leave on 10 November 2022, it was noted that the Respondent had yet to file their response submissions. Following observations from the Commission as to the lack of prejudice, there was an appropriate consent from the Respondent to a (retrospective) grant of leave for Mr Rogers to file his amended submission.
  1. [32]
    Notwithstanding the Commission's express caution given to Mr Rogers regarding the misconceived nature of the amended submission and his personal costs risk, there was no attempt by Mr Rogers to seek leave to further amend the submissions or to discontinue the application.
  1. [33]
    The Respondent filed their submissions in response on the preliminary matters on 25 November 2022.

Listing for Hearing

  1. [34]
    Once all parties had filed submissions in accordance with the directions, the matter was listed for mention on 8 December 2022. The parties were asked to indicate whether they would like an opportunity to appear before the Commission to speak to their submissions and answer any questions the Commission may have. The following exchange occurred:[12]

COMMISSIONER: ... The next thing I was going to ask the parties is whether they had a desire for me to list the matter for oral submissions. I'm in the parties' hands, although I'll make some comments about it once I've heard the parties' views. Mr Rogers, did you have a preference with respect to whether we have oral submissions in this matter? So what's anticipated is that the party would speak to the submissions that have been filed and would be in a position to answer questions directed at them from the bench.

MR ROGERS: Yes. My preference would be that – well, sorry. I would be in a position to - - -

COMMISSIONER: Or the – I should say the alternative – sorry to cut across you, Mr Rogers, but I should say the alternative - - -

MR ROGERS: No, not a problem.

COMMISSIONER: The alternative is I just – can decide the matter on the papers based on the written submissions from the parties.

MR ROGERS: My preference would be for the opportunity to answer questions from yourself, Commissioner.

COMMISSIONER: Yes.

MR ROGERS: That is my preference.

(Emphasis added)

  1. [35]
    The Respondent did not object to Mr Rogers' preference for a hearing, though it did not expressly press for one either. Accordingly, the matter was listed for hearing on 30 January 2023.
  1. [36]
    Further, Mr Rogers informed the Commission that he now held a practising certificate.[13]

Attempt to discontinue proceedings

  1. [37]
    On Friday 27 January 2023 at 10:54am (the last business day before the scheduled hearing), the Industrial Registry received the following correspondence from Mr Rogers via email:

Good morning Registry,

I am writing in relation to the Hearing scheduled for 10am on Monday which requires Delma to attend in person at Level 21 66 Eagle Street Brisbane.  

Delma has recently commenced work with a new employer and has advised me that taking annual leave on Monday to attend in person will be difficult due to current work requirements and for financial reasons. It is kindly requested that Delma is excused from attending the hearing on the basis that:

  1. I will be attending in person as her legal representative; and
  2. the material before the commission is limited to two sets of written submissions with supporting evidence that does not contain any disputed facts, therefore it is unlikely that Delma will need to provide evidence at the hearing or be cross-examined.

If this is not acceptable to the Commissioner, please let me know so Delma can make the necessary arrangements in order to attend in person.

(Emphasis added)

  1. [38]
    Correspondence was issued by the Industrial Registry shortly thereafter advising Mr Rogers that the Commission would require Ms Dorman to attend the hearing in person.
  1. [39]
    On Saturday 28 January 2023, without notice to the Respondent, Mr Rogers attempted to electronically file in the Industrial Registry and serve on the Respondent a:
  1. Form 27 – Request to discontinue proceeding; and
  1. Form 35 – Notice of withdrawal of appointment of lawyer or agent.
  1. [40]
    On Sunday 29 January 2023, Crown Law (on behalf the Respondent) emailed the Industrial Registry objecting to the requested discontinuance of the matter pursuant to r 68(3) of the Rules and submitted that the matter should proceed on the papers in lieu of a hearing. Alternatively, the Respondent requested that it be heard on why the Commission should discontinue the proceedings on a term that the Respondent's costs are paid by either Ms Dorman or Mr Rogers pursuant to ss 545(2)(a) or 545(2)(b) of the IR Act respectively.
  1. [41]
    On Monday 30 January 2023, having reviewed the correspondence received over the preceding weekend, the Commission determined to vacate the scheduled hearing and substitute it with a mention of the matter.
  1. [42]
    At that mention, having been informed the Commission was minded to allow a discontinuance of the application subject to costs being considered, the Respondent confirmed its (oral) application in respect of payment of its costs by Ms Dorman or Mr Rogers ('the costs proceedings').[14]
  1. [43]
    Directions were made for the filing of submissions on costs. It was initially anticipated that Mr Rogers would continue to act for Ms Dorman in the costs proceedings.
  1. [44]
    The matter was urgently mentioned again the next day on 31 January 2023 at the instigation of the Commission. Upon reflection, the Commission raised with the parties the appropriateness of Mr Rogers representing Ms Dorman in respect of the costs proceedings. In circumstances where the issue was whether Ms Dorman or Mr Rogers should be liable for the Respondent's costs, there was an unavoidable conflict of interest. Consequently, all parties accepted that Mr Rogers ought not act for Ms Dorman in the costs proceedings.
  1. [45]
    Mr Rogers and Ms Dorman were then directed to separately file submissions with respect to costs. A further mention of the matter was scheduled for 20 February 2023. It is important to note here that from this juncture, Mr Rogers was not a ‘representative’ for the purposes of the IR Act in the costs proceedings.[15]

Costs proceedings

  1. [46]
    Subject to an extension granted to each party, the Respondent and Ms Dorman filed their submissions in accordance with the Commission's orders. Mr Rogers did not comply (sixth contravention).
  1. [47]
    Relevantly, in his email seeking an extension for filing on 15 February 2023, Mr Rogers did not foreshadow any difficulties that might further impede his compliance once an extension was granted. Mr Rogers' request for an extension until 20 February 2023 was granted.
  1. [48]
    On 20 February 2023, Mr Rogers filed two (unsworn) statements. He did not file submissions as ordered. Instead, Mr Rogers sent an email to the Industrial Registry that relevantly said:

I note that I have not prepared written submissions in response to the written submissions received from the Respondent. This is due to time constraints and other commitments I have had to attend to during the last two weeks. I intend to make oral submissions on the day of the hearing directly addressing the matters raised by the Respondent regarding the application of section 545(2)(b) of the IR Act. If the Commission would prefer, I can provide written submissions on these matters within 48 hours. This can be discussed further at the Mention today at 1:30pm.  

  1. [49]
    Fortunately, there was a pre-scheduled mention of the matter on 20 February 2023. Had there not been, Mr Rogers' failure to file submissions would have prompted one. Mr Rogers' non-compliance with the directions order was addressed with him and he was directed to file written submissions with respect to costs by 22 February 2023. Mr Rogers complied with this direction.
  1. [50]
    The costs proceeding proceeded to hearing on 17 March 2023. Ms Dorman gave her evidence during the first part of the proceedings. Relevantly, Ms Dorman was cross examined by Counsel for the Respondent and by Mr Rogers. The relevant potions of her evidence are discussed below.
  1. [51]
    The Crown also required Mr Rogers for cross examination.
  1. [52]
    Before Mr Rogers was required to give evidence, he sought a short adjournment. At that juncture in the proceedings, the Commission took the opportunity to share some preliminary views about Ms Dorman's evidence with Mr Rogers. In short, Mr Rogers was informed that, having heard Ms Dorman's evidence, the Commission was satisfied inter alia that Ms Dorman:
  • appeared to have had no knowledge of the jurisdictional objections raised at the outset of the proceedings;[16]
  • had no understanding of the submissions filed on her behalf; [17]
  • had never seen the submissions filed on her behalf; [18]
  • was not aware that her application was in peril of being dismissed;[19]
  • was not aware of the costs risk;[20] and
  • apparently did not provide any instruction to Mr Rogers to have the matter proceed to a hearing on 30 January 2023.[21] 
  1. [53]
    Before commencing the short adjournment that Mr Rogers had requested, he was cautioned by the Commission that, if its preliminary conclusions about Ms Dorman's evidence became final conclusions, then any decision in the matter would likely reflect very poorly on him professionally. Mr Rogers was invited to reflect on these matters during the brief adjournment.[22]
  1. [54]
    When the matter resumed, Counsel for the Respondent informed the Commission that the parties had reached an 'in principle' agreement to resolve the costs dispute. Mr Rogers confirmed this.[23] The matter was adjourned pending completion of settlement. As a consequence of this development, Mr Rogers was not required to give evidence about his conduct of the matter.

Failure to settle

  1. [55]
    On 24 March 2023, Crown Law emailed the Industrial Registry on behalf of the Respondent and advised that it had provided Mr Rogers with a settlement agreement for his consideration but that it had not received any response from him. 
  1. [56]
    On 27 March 2023, Mr Rogers emailed the Industrial Registry and Crown Law apologising for the delay in his response and further saying:

Agreeing to settle would be an admission of wrongdoing in circumstances where no such wrongdoing took place therefore I am unable to settle this matter.

Resumed costs hearing

  1. [57]
    After consultation with the parties about a suitable date, the costs proceeding was listed for resumed hearing on 23 May 2023. Mr Rogers indicated he would 'work around' the parties with respect to a suitable date.  The parties were directed to attend the hearing in person. A listing notice was sent to Mr Rogers on 5 April 2023.
  1. [58]
    Crown Law attended the hearing on behalf of the Respondent as directed. Ms Dorman attended the hearing as directed.
  1. [59]
    Mr Rogers failed to attend (seventh contravention).
  1. [60]
    From approximately 10:00am on 23 May 2023 when it became apparent that Mr Rogers was absent from the hearing, two attempts were made to contact him by telephone. Both of those calls were diverted to message bank.
  1. [61]
    Before proceeding further, the Commission ensured that the email address used to issue the listing notice to Mr Rogers was correct. It was. In all of those circumstances the Commission proceeded in Mr Rogers' absence.
  1. [62]
    Given the only evidence left to be presented in the costs proceeding was that of Mr Rogers, and given he had filed a statement, it was determined to deal with the remainder of the matter on the papers. Crown Law were directed to file material informing the Commission of the quantum of costs incurred in the proceedings.
  1. [63]
    Following final adjournment of the hearing, an email was sent to the parties (including Mr Rogers) confirming the remainder of matter would be dealt with on the papers. In particular, the email informed the parties that the statement of Mr Rogers that had been filed on 15 March 2023 would become Exhibit 3 in the proceedings subject to any objections from any party. 
  1. [64]
    Mr Rogers replied to the email after 1:00pm on 23 May 2023. He informed the Industrial Registry that he had made an error by noting the listing in his diary for 25 May 2023. His email confirmed he was aware of the proposal to proceed on the papers and he did not object to this.
  1. [65]
    On 2 June 2023, Crown Law responded. They did not object to the matter proceeding on the papers but indicated that, in the event that Mr Rogers statement filed on 15 March 2023 was accepted into evidence, the Respondent should not be taken to accept the truth of the matters contained within it.
  1. [66]
    On 4 July 2023, Crown Law filed an affidavit of Ms Rachel Maynard, Principal Lawyer at Crown Law ('the affidavit'). The affidavit sets out inter alia particulars of the costs incurred by the Respondent in the proceedings and was filed in response to a request from the Commission made at the hearing on 23 May 2023. The affidavit also contained certain information regarding the date upon which Mr Rogers obtained his practising certificate.
  1. [67]
    On 5 July 2023, Mr Rogers emailed the Industrial Registry seeking leave to reply to the matters contained in the affidavit. Mr Rogers was given leave to file a submission by 4:00pm on 14 July 2023 addressing the quantum of costs and details about his practising certificate only.
  1. [68]
    No submission was filed by Mr Rogers on 14 July 2023 as directed (eighth contravention).
  1. [69]
    On Saturday 15 July 2023 at 10:22am, Mr Rogers emailed the Industrial Registry. The email contained inter alia what appeared to be Mr Rogers' formal response to the quantum of costs claimed by the Respondent. The email contains a statement to the effect that it can be 'properly considered as submissions to the Commission' and then goes on to offer a wholly illogical explanation for why Mr Rogers elected not to respond to the affidavit with his own sworn testimony.

The Commission's power to award costs

  1. [70]
    Unless an application is made for costs, parties must bear their own costs in proceedings before the Industrial Court or the Commission.[24] To avoid confusion, it ought to be made clear that the Commission is not a 'no costs jurisdiction'. The Commission is a discretionary costs jurisdiction, and any party who incurs legal costs in the conduct of proceedings can legitimately anticipate that they might recover those costs in the circumstances prescribed by the IR Act.
  1. [71]
    Section 545 of the IR Act relevantly provides:

545 General power to award costs

  1. A person must bear the person's own costs in relation to a proceeding before the court or commission.
  1. However, the court or commission may, on application by a party to the proceeding, order—
  1. 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
  1. 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. 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. 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
  1. because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
  1. 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.

(Emphasis added)

  1. [72]
    It is plainly within the Commission's power to make orders for costs against a party to the proceeding or a representative of a party to the proceeding.

Section 545(2)(a) – Costs order against a party to the proceeding

  1. [73]
    In Kelsey v Logan City Council & Ors,[25] His Honour Davis J, summarised the general test used to determine whether the Commission's discretion to award costs against a party ought to be enlivened:
  1. [25]
    Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:
  1. The starting point is that each party bears their own costs.
  1. A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.
  1. The assessment of “reasonable cause” in s 545(2)(a)(i) is:
  1. an objective assessment; and
  2. made considering the facts existing as at the time of the institutions of the proceedings, here the appeal.
  1. 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.

(Emphasis added)

  1. [74]
    In Dawson v State of Queensland (Department of the Premier and Cabinet) ('Dawson'),[26] Vice President O'Connor said the following in respect of s 545(2)(a) of the IR Act:
  1. [10]
    For the purposes of s 545(2)(a)(i), whether an application is commenced vexatiously or without reasonable cause is to be assessed objectively. The test is to be applied when the application is made.
  1. [11]
    The same objective assessment applies in respect of s 545(2)(a)(ii) as to whether it would have been reasonably apparent to a party that their claim had no reasonable prospects of success. This limb is broader than s 545(2)(a)(i) as it can be triggered at a time subsequent to the filing of an application.

(Citations omitted)

  1. [75]
    In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011,[27] Vice President O'Connor comprehensively outlined the relevant principles in respect of an application pursuant to s 545 of the IR Act:

The test for “vexatiously or without reasonable cause”

  1. [12]
    The principles to be applied in applications such as this were considered by Martin J in Wanninayake v State of Queensland (Department of Natural Resources and Mines). The case concerned the predecessor of s 545 – s 335 of the Industrial Relations Act 1999. In that case his Honour wrote:

An application has been made by the respondent for an order under s 335 of the Industrial Relations Act 1999. That Act permits the court to make an order that an unsuccessful applicant pay costs in circumstances where an application was made vexatiously or without reasonable cause.

It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her. Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her, but that is not a reason to deny a successful party its costs. The appeal was never going to succeed. It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.

Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded. It follows that the application was made without reasonable cause, and so the jurisdiction is enlivened.

  1. [13]
    The Applicant referred the Commission to the decision of State of Queensland (South West Hospital and Health Service) v Crews-Bradley, which considered s 335(1)(a) of the Industrial Relations Act 1999 (the IR Act 1999), the equivalent to s 545(2) of the IR Act 2016:

The phrase 'vexatiously or without reasonable cause' is to be read disjunctively and not in a composite way.

It is not my understanding of the submissions of the applicant that they contend the respondent, in bringing the application, has acted 'vexatiously'; that is, with the intention of annoying or embarrassing the applicant.

In determining the expression 'without reasonable cause' in s 335(1) of the IR Act, it cannot be said that a party has made an application 'without reasonable cause', within the meaning of s 335(1) of the IR Act simply because the applicant's argument proves unsuccessful.

In considering the phrase 'without reasonable cause' Wilcox J in Kanan v Australian Postal and Telecommunications Union, wrote:

'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 proceeding, 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 a reasonable cause.'

In practice, the test used to determine 'without reasonable cause' is not, in many ways, dissimilar to that applied in determining a summary judgment application. That test has been variously expressed, including that a case is 'manifestly groundless' or is 'so obviously untenable that it cannot possibly succeed'.

Martin J in Dominic Burke v Simon Blackwood (Workers' Compensation Regulator) in dealing with 'without reasonable cause' expressed the view that where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event.

  1. [14]
    In MIM Holdings Ltd v AMWU, Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
  1. [15]
    The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.
  1. [16]
    It is acknowledged that s 545 of the IR Act 2016 preserves s 335 of the IR Act 1999 by providing that a person must bear their own costs in relation to a proceeding unless the court or commission has ordered costs to another party. However, s 545 goes further than s 335 by giving the Commission a discretion in circumstances where a party to the proceeding made the application, or responded to the application, when there was no reasonable prospect of success.
  1. [17]
    As a matter of ordinary expression, the words 'reasonable prospects of success' involves weighing up the circumstances of the case to determine whether they are reasonable in the sense that they provide a rational base for a decision to proceed with a matter or, as in this case, whether to respond to the application.
  1. [18]
    In Keddie & Ors v Stacks/Goudkamp Pty Ltd the New South Wales Court of Appeal was called on to consider a costs application in the context of s 345 of the Legal Profession Act and the obligation of a law practice not to provide legal services unless the claim has reasonable prospects of success.
  1. [19]
    In considering the phrase "reasonable prospects of success" the Court of Appeal had reference to the reasoning of Barrett J (as his Honour then was) in Degiorgio v Dunn (No 2), where his Honour observed:

... 'without reasonable prospects of success' ... equates its meaning with 'so lacking in merit or substance as to be not fairly arguable'. The concept is one that falls appreciably short of 'likely to succeed'.

  1. [20]
    Beazley JA (with whom Barrett JA and Sackville AJA agreed) held that the phrase 'without reasonable prospects of success' means 'not fairly arguable' and as to establish 'on the basis of provable facts and a reasonably arguable view of the law that the claim has reasonable prospects of success'.

(Citations omitted)

Section 545(2)(b) – Costs order against a representative 

  1. [76]
    The application of s 545(2)(b) of the IR Act has not been significantly dealt by the Commission. Some assistance on its application can be had from regard to similar provisions in the Fair Work Act 2009 (Cth) ('FW Act').
  1. [77]
    In terms that are substantially the same as s 545(2)(b) of the IR Act, s 401 of the FW Act relevantly provides:

…

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

  1. the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
  1. of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(Emphasis added)

  1. [78]
    While the relevant language is the same, there is an important distinction between s 401 of the FW Act and s 545(2)(b) of the IR Act.
  1. [79]
    Section 401 of the FW Act relevantly applies to parties who have engaged a lawyer or a paid agent.[28] Throughout the course of the proceedings, Mr Rogers was at pains to ensure the Commission was aware he was representing Ms Dorman on a 'charitable basis' which (presumably) meant he was not charging fees (though no evidence of this was before the Commission). Mr Rogers has also been adamant that he has not acted as a lawyer in the matter until 16 January 2023. For the purposes of costs liability in this matter, these assertions are irrelevant.
  1. [80]
    Unlike s 401 of the FW Act, s 545(2)(b) of the IR Act does not contain any limits on the term 'representative'. That is, there is no restriction in its application to lawyers or paid agents only. It applies to all representatives.
  1. [81]
    On 30 September 2022, Mr Rogers filed a Form 36 – Notice of change of lawyer or agent that indicates he was either lawyer or agent for Ms Dorman. Accordingly, he falls within the discretion allowed under s 545(2)(b) of the IR Act at any relevant time he was Ms Dorman's representative.
  1. [82]
    There can be no doubt that Mr Rogers was, until 31 January 2023, Ms Dorman's 'representative' for the purposes of his potential liability for costs pursuant to s 545(2)(b) of the IR Act. But, at the mention held on that date, he was expressly excluded from acting for Ms Dorman thereafter because of the inherent conflict in their positions.
  1. [83]
    In the circumstances, in so far as any costs order might be contemplated against Mr Rogers in his capacity as a representative, the discretion cannot be informed by consideration of conduct after 30 January 2023. 

Respondent's submissions

  1. [84]
    In accordance with directions issued on 3 February 2023, the parties filed written submissions in respect of costs.
  1. [85]
    The Respondent opens its submissions by contending that, pursuant to r 68(6) of the Rules, the Commission ought to discontinue the substantive proceedings on terms it considers appropriate, namely that the Respondent's costs of and incidental to the proceedings be paid, either by:
  1. a.
    Ms Dorman, pursuant to s 545(2)(a)(i) or (ii) of the IR Act; or
  1. b.
    Mr Rogers, pursuant to s 545(2)(b)(i) or (ii) of the IR Act.

Costs against Ms Dorman

  1. [86]
    The Respondent submits that the jurisdictional facts identified in both s 545(2)(a)(i) and (ii) of the IR Act are established and, in the circumstances, costs against Ms Dorman are justified.
  1. [87]
    In relation to s 545(2)(a)(i) of the IR Act, the Respondent submits that the grounds identified in Ms Dorman's application for reinstatement have all been advanced and settled by the Commission. In the circumstances, it is submitted that Ms Dorman's application could not succeed and was made with no reasonable cause.
  1. [88]
    In relation to s 545(2)(a)(ii) of the IR Act, the Respondent submits that throughout the course of the proceeding, Ms Dorman was provided with adequate information (from both the Respondent and the Commission) that her application was out of time, and the grounds identified in her application for reinstatement i.e. questioning the validity of the directive was a matter that had already been dealt with and determined multiple times by the Commission.
  1. [89]
    The Respondent therefore submits that it ought to have been reasonably apparent to Ms Dorman that her application could not be pursued on the grounds it relied and had no reasonable prospects of success.

Costs against Mr Rogers

  1. [90]
    The Respondent acknowledges that the application of s 545(2)(b) of the IR Act has not been explored in depth by the Commission. The Respondent instead points to decisions that have considered similar costs provisions, namely those in the FW Act.[29]
  1. [91]
    The Respondent refers to Veal v Sundance Marine Pty Ltd ('Veal'),[30] a decision of the Full Bench of the Fair Work Commission which observed that when considering the question of whether it should have been reasonably apparent that a person had no reasonable prospects of success, a higher standard must be applied to a legally qualified individual than that which would apply to an unrepresented party.[31]
  1. [92]
    The Respondent submits that it should have been reasonably apparent to Mr Rogers that Ms Dorman had no reasonable prospects of success in circumstances where Mr Rogers:
  1. a.
    was admitted as a legal practitioner on 27 April 2010 and currently holds a practising certificate;
  1. b.
    appeared at the mentions of the matter on 15 November 2022 and 8 December 2022 and was put on notice by the Commission of its pessimistic views with respect to Ms Dorman's application; and
  1. c.
    conceded at the mention of the matter on 31 January 2023 that he agreed that Ms Dorman's application should have been dismissed because it was out of time.[32]
  1. [93]
    The Respondent submits that, as contemplated by s 545(2)(b)(i) of the IR Act, Mr Rogers encouraged Ms Dorman to start, continue or respond to the proceeding.
  1. [94]
    The Respondent refers to Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café ('Khammaneechan'),[33] where it was held by Richards SDP that encouragement requires a 'positive act by the lawyer or paid agent, not merely an absence of discouragement'. The Respondent submits that Mr Rogers' actions demonstrate positive representations pressing the continuation of the application over the November and December 2022 period.
  2. [95]
    The Respondent further submits that Mr Rogers' conduct is consistent with an unreasonable act or omission as contemplated by s 545(2)(b)(ii) of the IR Act, in that he:
  • pursued the application on grounds that were well settled by the Commission and without contemplation of relevant authorities (none of which were found in favour of the employees);
  • defended the out of time objection despite being of the view that the application ought to have been dismissed on that basis; and
  • prosecuted the application and requested an oral hearing of the application in the absence of instructions from Ms Dorman.

Ms Dorman's submissions

  1. [96]
    Ms Dorman filed her submissions in response to the costs proceedings on 20 February 2023.[34] Her submissions are not especially responsive to the matters raised by the Respondent with respect to costs, but they do provide some insight into the conduct of the application generally.
  1. [97]
    Ms Dorman sets out that she commenced new employment from 12 October 2022.  From that time on, Ms Dorman contends that she was unable to attend mentions before the Commission. She also contends that her new role was busy and this left her with no time to check emails. The inference in her submission (which was born out in her evidence) is that she had little meaningful contact with Mr Rogers from 12 October 2022 onwards.[35]
  1. [98]
    Ms Dorman, who is an Indigenous woman, further sets out in her submissions that a relative in Rockhampton became gravely ill on or about 25 November 2022. From this time until her relative passed away on 17 December 2022, she was heavily preoccupied with supporting her family and had no contact with Mr Rogers at all. Following the passing of her relative, Ms Dorman then engaged in a traditional mourning period which eased on or about 15 January 2023.
  1. [99]
    Ms Dorman says that on 15 January 2023 she checked her emails and noticed an email from Mr Rogers. She describes herself in the submission as having been 'oblivious' of what was happening with her reinstatement application. 
  1. [100]
    In essence, Ms Dorman describes an almost total disengagement with Mr Rogers from 12 October 2022 until 15 January 2023.  A number of the factual 'gaps' apparent in Ms Dorman's submission are dealt with in her evidence before the Commission on 17 March 2023 and are discussed below. Relevantly, she was entirely unaware that the Commission had raised a concern about whether the matter ought to be allowed to proceed per s 541 of the IR Act, and that her application had been filed outside the prescribed time limit.

Submissions of Mr Rogers

  1. [101]
    Mr Rogers filed written submissions on 22 February 2023. Mr Rogers' submissions address each of the elements relevant to the Commission's consideration of whether it ought to award costs pursuant to ss 545(a) and (b) of the IR Act.

Costs against Ms Dorman

  1. [102]
    In respect of s 545(2)(b)(i) of the IR Act, Mr Rogers submits that it became reasonably apparent to him that Ms Dorman's application had no prospects of success once his preparation for the 30 January 2023 hearing commenced on 27 January 2023.
  1. [103]
    It can be inferred from Mr Rogers' submissions that, after having commenced preparation for the 30 January 2023 hearing, he came to the realisation that the application had in fact been filed out of time. After Mr Rogers had obtained further instructions from Ms Dorman on 28 January 2023, he proceeded to file in the Industrial Registry a Form 27 – Request to discontinue proceeding and a Form 35 – Notice of withdrawal of appointment of lawyer or agent.
  1. [104]
    Notwithstanding the above, Mr Rogers submits that he recommended Ms Dorman consider discontinuing the application on several occasions in light of the Commission's preliminary views expressed at the 15 November 2022 mention.

Costs against Mr Rogers

  1. [105]
    Mr Rogers submits that there is no evidence before the Commission that there was a 'positive act' as contemplated by Khammaneechan that would support the conclusion that Mr Rogers encouraged Ms Dorman to start, continue or respond to the proceeding.
  1. [106]
    Mr Rogers submits that he had in fact advised Ms Dorman to discontinue the application on a number of occasions. He further contends that the Respondent has made 'baseless accusations about my conduct without any evidence and before they have had an opportunity to review the evidence provided by Ms Kuth, Ms Dorman and myself'.
  1. [107]
    Mr Rogers submits that the Respondent was not required to undertake any further preparation for the 30 January 2023 hearing after having filed its submissions on 25 November 2022. This submission is made on the basis that the Respondent:
  • did not indicate a need to address its submissions orally at the 8 December 2022 mention; and
  • was not required to respond to any further material as Mr Rogers did not file any submissions in reply.
  1. [108]
    In response to the Respondent's submission that Mr Rogers had pursued the application on grounds already settled by the Commission (without any attempt to engage with the authorities and despite caution from the Commission), Mr Rogers submits that none of the authorities referred to address the 'uncontested fact' that manufacturers of COVID-19 vaccines do not claim that their products prevent transmission or contraction of COVID-19. On this point, Mr Rogers submits that there is 'nothing unreasonable about relying upon uncontested facts in an application before the Commission'.
  1. [109]
    In respect of the application having been filed out of time, Mr Rogers says 'Ms Misko had mislead (sic) me with respect to the filing of the application'. Again, it can be inferred from Mr Rogers' submissions that he had not become aware of the fact that the application was filed out of time until he had begun preparing for the 30 January 2023 hearing on 27 January 2023. 
  1. [110]
    Mr Rogers closes his submissions by refuting the Respondent's submission that he prosecuted the application between November and December without Ms Dorman's instructions. Instead, Mr Rogers contends that he acted in accordance with Ms Dorman's instructions at the time, which were, in Mr Rogers' submission, to continue the application.

Affidavit material filed by Mr Rogers

  1. [111]
    Mr Rogers filed in the Industrial Registry two unsworn statements on 20 February 2023. Given that the statements were unsworn, Mr Rogers was given permission to file sworn statements on the basis that they were not materially different to those filed on 20 February 2023.[36] He did so on 15 March 2023.[37]
  1. [112]
    On 16 March 2023, the Respondent emailed the Industrial Registry, highlighting the fact that each of the sworn statements were non-complaint with the Rules, in that they were not in the approved form,[38] did not include Certificates of Exhibit, and, despite each exceeding 30 pages, were not filed physically in the Industrial Registry.[39]
  1. [113]
    The Respondent objected to the statement of Ms Kuth. The Commission considered the objection and noted a number of technical and procedural difficulties with the statement of Ms Kuth.[40] Ultimately the statement of Ms Kuth was not admitted but a number of the attachments were able to be admitted via Ms Dorman.[41]
  1. [114]
    The Respondent did not object to the statement of Mr Rogers as he was directed to be in attendance on 17 March 2023 and was required for cross-examination, but reserved the right to make submissions about how the Commission should treat such evidence. The salient portions of the sworn statement of Mr Rogers can be summarised briefly as follows:
  • Mr Rogers began practising law in or about January 2023;
  • Mr Rogers alleges he was informed by Ms Misko that the (unsigned) application sent to the Industrial Registry on 8 August 2022 was the only application filed;
  • On 15 November 2022, Mr Rogers alleges contacted Ms Dorman and recommended that she consider discontinuing her application. Mr Rogers was told by Ms Dorman to 'continue the Application and have the matter heard by the Commission “in the usual manner”';
  • By 8 December 2022, Mr Rogers had not been in contact with Ms Dorman. Mr Rogers maintains that he held instructions to 'continue the Application' and requested an oral hearing on that basis; 
  • On 22 January 2023, Ms Dorman contacted Mr Rogers. Mr Rogers alleges he advised Ms Dorman that she ought to consider discontinuing the application.
  • On 27 January 2023, Mr Rogers began reviewing the application in anticipation of the 30 January 2023 hearing and discovered that it had been filed out of time.
  • On 28 January 2023, Mr Rogers contacted Ms Dorman and advised her that he could no longer represent her as he had been misled by Ms Misko in respect of the filing of the application. Mr Rogers advised Ms Dorman that she should discontinue the application.
  1. [115]
    As it transpired, the Respondent did not have the opportunity to cross-examine Mr Rogers on 17 March 2023 or on 23 May 2023. The evidence of Mr Rogers therefore remains untested by the Respondent and they have placed the Commission on notice that they do not accept the matters alleged by Mr Rogers as facts. The Commission is equally conscious that Mr Rogers has not been subject to the scrutiny of cross-examination. The Commission further notes that there are significant matters dealt with by hearsay in Mr Rogers' affidavit.[42] 
  1. [116]
    Mr Rogers has (twice) missed the opportunity to give sworn evidence in the proceedings. For reasons set out below, the Commission considers that Mr Rogers was the architect of this through two separate, but equally unreasonable acts. Following Mr Rogers' unannounced failure to attend on 23 May 2023 at the resumed cost hearing, the Commission was not prepared to allocate any further time to give Mr Rogers an opportunity that he had twice squandered already.
  1. [117]
    While Mr Rogers' affidavit was admitted into evidence, the Commission will give it little weight. 

Consideration

  1. [118]
    In any application for costs there are three essential questions that must be addressed:
  1. Should the party applying for costs have their costs paid; and if so
  1. Who should pay those costs; and
  1. What amount should be paid?
  1. [119]
    In this matter, the Respondent applies for its costs. Ordinarily, such applications are a contest between the parties to the proceedings, and the question of which party should pay is routinely resolved. But in this instance, the Respondent's application extends to Mr Rogers in his representative capacity. So, in this matter, the second question set out above, is whether those costs ought to be paid by Ms Dorman, Mr Rogers or both.
  1. [120]
    And then there is the question of how much ought to be paid.

Should the Respondent have its costs?

  1. [121]
    In Dawson, Vice President O'Connor observed:
  1. [14]
    Martin J observed in Blackwood v Egan, that an order for costs is a quintessential exercise of discretion and that the principles in House v The King will apply. The principles that govern an award of costs are well established. In Latoudis v Casey, Mason CJ wrote:

It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

His Honour the Chief Justice further stated:

Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.

McHugh J said:

The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.

(Citations omitted. Emphasis added)

  1. [122]
    The Vice President went on to make some observations in Dawson that were apposite to these proceedings:
  1. [23]
    Notwithstanding the various submissions made by the Respondent and efforts made to explain to the Applicant the situation in which he was placed, the Applicant continued on an erroneous path. Even on the hearing of this application for costs, the Applicant continued to rehearse submissions which had failed in respect of the substantive application.
  1. [24]
    In exercising the discretion, I have considered the fact that the Applicant was self‑represented. However, as the authorities suggest, that alone should not be a basis upon which a successful party should be denied their costs.
  1. [25]
    In Northern Territory v Sangare, the High Court observed:

In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person.

  1. [26]
    The Applicant's case was one without any prospects of success. In short, the Applicant failed to identify a breach of the IR Act or an industrial instrument under the Act; and never made an application that would have empowered the Commission to grant the relief sought by the Applicant. Those failures were fatal to his application.
  1. [27]
    Equally, the application was brought to the Commission on a footing which was misconceived and doomed to fail. The case advanced by the Applicant was on any view of the material, 'so lacking in merit or substance as to be not fairly arguable'.

(Emphasis added) (citations omitted)

  1. [123]
    From the moment it was filed, Ms Dorman's application was beset with two obvious and significant problems. Firstly, it was filed outside the statutory time limit prescribed by s 317(2) of the IR Act, and therefore liable to be dismissed.
  1. [124]
    Secondly, Ms Dorman's application as filed had all of the same characteristics of a number of other misconceived applications involving applicants who had not complied with various directives compelling vaccination against COVID-19, and which had already been dismissed by the Commission.
  1. [125]
    The Respondent had issued the directive and required inter alia for its employees to be vaccinated against COVID-19. It was the same directive that had been found to be lawful and reasonable on multiple previous occasions by the Commission.[43]
  1. [126]
    Ms Dorman's application plainly revealed that she had declined to comply with this lawful and reasonable direction. Her application revealed that her reasons for doing so could best be described as 'vaccine hesitancy' i.e. she was not able to feel convinced that any of the available vaccinations were safe.
  1. [127]
    On her own application, Ms Dorman appeared unable to articulate any submission or refer to any credible evidence that justified her concerns about vaccine safety, medical contraindication, or anything else that might otherwise render the lawful and reasonable direction unlawful or unreasonable.  The plainly valid reason for dismissal loomed large in Ms Dorman's own application. 
  1. [128]
    Additionally, it was evident that Ms Dorman had been given the benefit of an extensive show cause process and procedural fairness before her employment was terminated.
  1. [129]
    It was the combination of these factors that caused the Commission to form a preliminary view that the application was so obviously devoid of merit that it was not necessary or desirable in the public interest for the Commission to further deal with it. A mention of the matter was listed for the purpose of explaining this to Ms Dorman and her representatives.
  1. [130]
    From that first mention of the matter on 27 September 2022, the representatives of Ms Dorman could not reasonably have misunderstood the tenor of the Commission's innumerable references to the lack of merit accompanying the application. Further, they could not reasonably have misunderstood the peril the application was in due to their non-compliance with the statutory time limit prescribed by s 317(2) of the IR Act.[44] The Commission had cause to reiterate these concerns, multiple times, to each of the representatives who appeared for Ms Dorman on 4 November 2022[45] and 15 November 2022.[46]  And still, they persisted with the application. 
  1. [131]
    The failure to desist with the application in its early stages might have been explained by miscommunications between Ms Misko, Ms Kuth and then ultimately Mr Rogers. But even if that was the case, it is hardly a satisfactory explanation where three persons purporting to be 'human rights advocates' need to be told of the Commission's concerns three times before there is some glimmer of understanding (albeit via Mr Rogers' contemptuous rejection of the Commissions concerns).[47] This is especially so when one considers that at least two of the three persons purporting to represent Ms Dorman apparently possess legal qualifications and are, or have previously been, admitted to the legal profession.    
  1. [132]
    The failure to desist when the Commission offered cautions to Ms Kuth and Mr Rogers is then compounded by the request from Mr Rogers for a hearing to be listed. Notwithstanding that he had every indication from the Commission that the matter lacked merit, and at a time when he was (or should have been) fully appraised of the arguments contained in the Respondent's written submissions filed on 25 November 2022, at the mention on 8 December 2022, Mr Rogers actively sought to have the matter listed for hearing.
  1. [133]
    As a lawyer, Mr Rogers must have known this would cause more costs to be incurred. What is now also known is that, not only did Mr Rogers expressly seek a hearing, but he did so without informed instructions from his client.
  1. [134]
    It is difficult to imagine a set of circumstances more deserving of a costs order. As in Dawson,[48] multiple efforts were made by the Commission to appraise Ms Dorman (or more particularly, her representatives) of the futility of the application, but all were rebuffed. Ms Misko was informed. Ms Kuth was informed. Mr Rogers was informed. None of these persons who were purporting to represent Ms Dorman's interests appear to have had any serious regard to the multiple concerns raised by the Commission. It was only after the Respondent had been put to the expense of preparing submissions and preparing for hearing that Ms Dorman sought to discontinue the application, on a Saturday, with less than 48 hours until the hearing was due to commence.
  1. [135]
    A costs order in favour of the Respondents is more than appropriate in these circumstances. But having reached that conclusion, it is then necessary to determine who should pay those costs.

Who should pay the costs?

Ms Dorman

  1. [136]
    Sections 545(2)(a) and (b) of the IR Act are quite distinct provisions. Section 545(2)(a) of the IR Act deals with the circumstances under which the Commission might exercise its discretion to order Ms Dorman (a party to the proceedings) to pay the costs. Section 545(2)(b) of the IR Act opens the discretion more widely to allow for an order compelling a representative to pay costs.
  1. [137]
    Importantly, the prescribed grounds to evoke the discretion in respect of a party to proceedings or a representative are distinctly different.
  1. [138]
    With respect to s 545(2)(a)(i) of the IR Act, nothing about Ms Dorman's evidence would suggest that she commenced the proceedings vexatiously.[49]
  1. [139]
    However, there was an overwhelming lack of merit in her application at the time it was filed.[50] So obvious was the lack of merit that it prompted the Commission to proceed straight to a mention of the application to invite submission pursuant to s 541(b) of the IR Act. Ordinarily, such a conclusion would place Ms Dorman well within the jurisdictional framework for a costs order. But there is a feature of Mr Dorman's application that arguably offsets the effect of the obvious lack of merit.
  1. [140]
    An order for costs involves the quintessential exercise of discretion.[51] While Ms Dorman's application was fundamentally misconceived, it did not appear to the Commission that Ms Dorman was aware of this at the outset. In the Commission's view, caution ought to be exercised when considering the application of this limb of s 545 of the IR Act.
  1. [141]
    The extent to which an applicant can be expected to appreciate the merits of their own application at the point of commencement needs to take into account the applicant's personal circumstances, including their qualifications and experience. It would be a particularly unjust reading of s 545(2)(a)(i) of the IR Act if it were to potentially trigger a costs order against a hapless and distressed individual who, feeling aggrieved by their dismissal but lacking insight, filed a reinstatement application only to find it was misconceived.
  1. [142]
    In this matter, Ms Dorman was represented from the outset by representatives who she no doubt relied on for advice. As explained later in these reasons, Ms Dorman unfortunately selected representatives who were incompetent and who appeared to be motivated by a desire to promote their own quasi-political agenda.
  1. [143]
    The Commission had the benefit of engaging with Ms Dorman's representatives at the various mentions held between September and December 2022. In particular, Ms Misko (who was responsible for the late filing of the application) left the Commission with the impression that she was particularly unskilled in such matters but equally, she engaged both the Industrial Registry and the Commission with a degree of belligerence and entitlement that would no doubt assure an unskilled observer like Ms Dorman.
  1. [144]
    In the circumstances where Ms Dorman had the misfortune of being represented by Ms Misko at the point of commencement of proceedings, and where it seems she engaged Ms Misko innocently and in good faith for assistance, it would be unjust to impose costs upon her for commencing the dismissal proceedings.
  1. [145]
    In terms of s 545(2)(a)(i) of the IR Act, the Commission is not prepared to exercise the discretion to order costs.  
  1. [146]
    In the case of s 545(2)(a)(ii) of the IR Act, the Commission's discretion can be exercised if it can be satisfied that Ms Dorman proceeded with her application when it was 'reasonably apparent' that it had 'no reasonable prospect of success'. This limb contemplates conduct of an application beyond the commencement of proceedings. It contemplates circumstances at any stage of the proceedings where those criteria might be satisfied.
  1. [147]
    What has become very apparent from her evidence is that Ms Dorman seems to have innocently handed her matter over to her representatives to handle. Unlike many applicants in matters of this type, Ms Dorman found work relatively quickly after her dismissal. Her work obligations became her priority and she largely stopped reading emails from her representatives from about 12 October 2022. Subsequently Ms Dorman experienced a loss in her family and became even more removed from the process.[52]
  1. [148]
    Had Ms Dorman played any active role in her application after the matter was first listed for mention on 27 September 2022, when the Commission put her representative on notice of the lack of merits, it would have been a simple matter to conclude that she had persisted when it was reasonably apparent that it had no reasonable prospects of success. Such a conclusion would have then activated the discretion found at s 545(2)(a) of the IR Act.
  1. [149]
    But Ms Dorman's evidence (which is wholly accepted) reveals that she was oblivious to the Commission's concerns about her application.[53]
  1. [150]
    Having secured new employment in October 2022, Ms Dorman appears to have left the conduct of her application with her representatives. More importantly, Ms Dorman's evidence confirms that her representatives did nothing to bring important matters regarding her application to her attention.[54] Further, to the extent that Mr Rogers has attempted to allege that he advised Ms Dorman to discontinue the proceedings, Ms Dorman denies she was ever given such advice. [55] Ms Dorman's evidence in this regard was credible and clear. It is preferred over the (untested) assertions of Mr Rogers. 
  1. [151]
    During her evidence, Ms Dorman presented as a quietly spoken, reasonable individual. Unlike some litigants in her situation, she was thoroughly respectful and cooperative with the Commission when asked questions, and she appeared to have a genuine (albeit misconceived) concern about being vaccinated. She did not give the impression of being anti-social or hostile towards authority. Ms Dorman impressed as a decent person who had simply found herself caught up in the surreal circumstances of having lost her job in the fashion that has become an unfortunate by-product of the pandemic. 
  1. [152]
    Importantly, Ms Dorman did not appear to possess a sophisticated understanding of the legal issues giving rise to her dismissal. Ms Dorman impressed as the type of person who, had she been sensibly advised about her rights, would not have pursued the application or would have desisted when cautioned by the Commission. If anything could be put against Ms Dorman in this matter it is that she chose her representatives poorly. But that was more bad luck than conduct that might attracts costs consequences.
  1. [153]
    In respect of whether the lack of prospects of her application were 'reasonably apparent' to her for the purposes of s 545(2)(a)(ii), it is relevant to take into account the fact that Ms Dorman was represented and more importantly, the patently poor quality of that representation.[56]
  1. [154]
    The plain meaning of the term 'reasonably apparent' imputes some knowledge by the impugned party, either directly or by virtue of circumstances, known or capable of being known to the party.  In the Commission's view, it would be a rare circumstance where a self-represented litigant would have sufficient knowledge of matters of law and evidence  for their prospects to be reasonably apparent to them. But once a self-represented party has been informed of the relevant facts or evidence that undermines their application, then it becomes more difficult for them to assert it was not 'reasonably apparent' they had 'no reasonable prospect of success'.
  1. [155]
    An evaluation of whether poor prospects were 'reasonably apparent' becomes more complex where the relevant party is represented. There are any number of permutations that might arise when considering this issue in circumstances where the party in question is represented. It would not be an efficient use of the Commissions time to consider them all in these reasons, suffice to say that the circumstances of each case will be determinative.  
  1. [156]
    The relevant circumstance of this matter include the representation of Ms Dorman by Mr Rogers. In the Commission's view, where it is apparent that incompetent representation serves to impede a party from acquiring an understanding that their application has no reasonable prospect of success, then s 545(2)(a)(ii) of the IR Act cannot be engaged.
  1. [157]
    That has been the case here. Ms Dorman cannot be criticised for placing trust in her chosen representatives, notwithstanding that her choice was poor. Further, Ms Dorman was, at no time, made aware of the Commission's multiple concerns about the prospects of the application. Indeed, it was the Commission's impression that she first learned of these matters when the Commission raised them with her during her evidence at the costs hearing.[57]
  1. [158]
    The submission filed by Mr Rogers were utterly unresponsive to the matters raised by the Commission and the Respondent. Even if they were sent to Ms Dorman, nothing about those submissions would give her any cause to understand the peril her matter was in, especially in the absence of some explanation from Mr Rogers.
  1. [159]
    It ought to be noted at this juncture that Mr Rogers asserts that Ms Kuth sent those (incompetent) submissions to Ms Dorman.[58] The difficulty with this submission is that the documents that are Exhibit 2 do not include the submission, only an image of attachment 'icon' that Mr Rogers seeks to assert was the submissions.  Ms Kuth (the email author) was not called to give evidence. Ms Dorman, when shown the submission while giving evidence, quite genuinely stated she had never seen them before.[59]
  1. [160]
    Under cross examination by Mr Rogers, Ms Dorman was invited to speculate whether she had forgotten receiving the document. Ms Dorman was equivocal in her responses to this proposition. At best, she ultimately conceded that she may not have read or understood every document sent to her. [60] But significantly, Ms Dorman gave clear evidence that she was completely unaware of the serious preliminary issues confronting her application.[61]
  1. [161]
    Throughout this entire matter, Ms Dorman was deprived of competent representation. Worse still, as will be discussed further below, it appears to the Commission that Ms Dorman's distress and confusion at losing her job was exploited by Ms Misko and later by Mr Rogers purely to press their personal (misconceived) views about vaccines and mandates. Ms Dorman was barely consulted by Mr Rogers once the proceedings were filed and certainly not at all at the critical junctures. 
  1. [162]
    For all of these reasons, the Commission concludes that Ms Dorman bears no responsibility to pay the Respondent's costs.

Mr Rogers

  1. [163]
    The grounds evoking the Commission's discretion to impose a costs order on Mr Rogers are set out in ss 545(2)(b)(i) and (ii) of the IR Act. The parties have made submissions about whether Mr Rogers 'encouraged' Ms Dorman to continue proceedings. The Respondent referred the Commission to the decision of Senior Deputy President Richards in Khammaneechan. The Respondent also took the Commission to the definition of 'encouraged' found in the Macquarie Dictionary.[62]
  1. [164]
    While the Commission is prepared to accept in the abstract that there may be a scenario where an applicant can be 'encouraged' by the inaction of their representative, it is difficult to conclude precisely how Mr Rogers' conduct did (or did not ) 'encourage' Ms Dorman in this matter. Mr Rogers' contact with Ms Dorman was so infrequent and ineffective that it is difficult to imagine it inspired her to do (or not do) anything.
  1. [165]
    In many respects it might be more accurate to conclude that Mr Rogers was doing nothing to progress that matter at all, and that it was only the repeated (but necessary) interventions of the Commission that kept the matter active.
  1. [166]
    While some (if not all) of the elements of s 545(2)(b)(i) of the IR Act might arguably be evident on the facts, and while the arguments made by the Respondent are sound in the broader sense, it cannot be concluded that Mr Rogers 'encouraged' Ms Dorman in the manner contemplated by s 545(2)(b)(i).
  1. [167]
    However, there is a compelling case for costs against Mr Rogers pursuant to s 545(2)(b)(ii) of the IR Act on the basis of his (multiple) unreasonable acts or omissions.
  1. [168]
    The phrase 'unreasonable act or omission' in the context of the costs discretion found in s 170CJ(3) of the Workplace Relations Act 1996 (Cth) was extensively discussed by the Full Bench in Veal and it is useful to reproduce that consideration here:
  1. [17]
    The concept of an unreasonable act or omission in s.170CJ(3) was considered in Goffet v Recruitment National Pty Ltd relative to a failure to attend conciliation proceedings. In that matter the Full Bench stated:

“[35] In the absence of medical evidence of Ms Goncalves and an opportunity for the Appellant to be heard on the point no weight should attach to the affidavit of Ms Goncalves claim that she was ill on the day of the conciliation on 5 November 2008. The notice of listing for the 5 November 2008 conciliation was sent to the Respondent by fax on 20 October 2008. The matter was listed for 11.30am. The Respondent only notified the Commission that it would not be attending the conciliation when the Commissioner’s associate telephoned the Respondent to inquire of its whereabouts at the time of the conciliation. Assuming Ms Goncalves was ill, as it is submitted that she was, no explanation appears to be given for the failure of the Respondent to inform the Appellant or the Commission of the fact prior to the scheduled commencement time of the conciliation or at all at the initiative of the Respondent. That represents conduct in our view, which caused the Appellant and her representative an unnecessary attendance at the Commission for which we think she should have her costs. The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent’s conduct in this regard was an intentional act. We are satisfied that the Respondent’s conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs.”

  1. [18]
    In terms of subsequent behaviour of a party to an unfair dismissal application, the Full Bench continued:

“[47] The Respondent’s failure to take steps to inform the Appellant of its intentions immediately after the issue of the notice of listing was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable. That those unreasonable acts or omissions caused the Appellant to incur the costs in connection with the conduct of the proceeding is unquestionable. We are satisfied that the Respondent must be ordered to pay the Appellant’s costs of and incidental to the submissions and preparation for arbitration. We allow also the costs on an indemnity basis in respect of the costs application.”

  1. [19]
    A Full Bench considered the former s. 170CJ(2) and (3) in Brazilian Butterfly Pty Ltd and Charalambous. It addressed the pre-existing authorities relevant to these provisions before stating:

“[39] Very strong prospects of success will not always justify a failure to participate in settlement negotiations initiated by a serious settlement offer from the other party. For example, where reinstatement is not sought and the amount offered by a respondent is equivalent to the statutory cap on compensation that can be ordered pursuant to s. 170CH, it will likely be unreasonable for an applicant to fail to agree to a settlement on those terms, irrespective of how strong the applicant’s case is. Of course, even then, it is possible to conceive of circumstances where a failure to agree terms of settlement on the basis of such an offer would not be unreasonable. For example, depending upon the circumstances, it may be entirely reasonable for an applicant to insist upon a withdrawal of the dismissal and acceptance of a resignation in its stead if this were necessary to repair substantial damage done to an applicant’s professional reputation and future professional job prospects as a result of the dismissal.

[40] On the other hand, modest or even poor prospects of success on liability or remedy will not necessarily always make it unreasonable for a party to fail to agree terms of settlement that may lead to the discontinuance of the application. For example, an applicant who was a long term employee close to retirement may have very substantial contingent superannuation entitlements that will be lost unless he or she obtains reinstatement. The difference between the value of those contingent entitlements and the amount offered by the respondent as a monetary settlement may be so great as to make it reasonable for the applicant to refuse the respondent’s offer, notwithstanding that the applicants’ prospects of success are only modest or even poor. Again, each case will turn on its own facts.”

(references removed)

  1. [20]
    The Full Bench continued:

[43] A reasonable person, who is a party to proceedings pursuant to s. 170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including:

  • the terms of the settlement offered in relation to the relief sought;
  • the relative strengths of the parties’ cases (and thus their relative prospects of success) in relation to both ‘liability’ and the relief sought;
  • any assessment of the merits in the certificate issued by the Commission pursuant to s. 170CF(2);
  • the likely length and cost of proceeding to a hearing if the matter does not settle; and
  • any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be.

[44] This list is not intended to be exhaustive. All of the circumstances are relevant and, as is made clear in the joint judgment in Blagojevch, there is no basis in the Act for giving primacy to any particular factor in every case.

[45] In many, if not most, cases there will be contested facts or contested interpretations of particular facts. What knowledge in this regard is to be attributed to the reasonable person considering whether, and if so, how to respond to an offer of settlement? The passage in Abbey, upon which the Commissioner relied was, clearly enough, an attempt to grapple with that problem. However, there is a tension between the way in which that passage is expressed and the apparent acceptance by the majority in Blagojevch that a party can act reasonably in responding to an offer of settlement by reference to that party’s “genuine perception or recollection of events”. The Full Court’s formulation is to be preferred although, even then, it is not to be seen as a substitute for the words of the Act. Of course, there is an issue as to what constitutes a “genuine” perception. The Full Bench in Kangan Batman TAFE observed, we think correctly, that:

“A party cannot simply disregard matters that should have been reasonably apparent and then claim that such matters were not apparent to them.”

  1. [21]
    Some additional guidance about the concept of an unreasonable act may be found in the Full Bench decision in Stagno v Frews Wholesale Meats in the following terms:

“This last extract introduces a point of distinction between s. 170CJ(1) and s. 170CJ(2). The former refers to `without reasonable cause', the latter to `acted unreasonably'. This anomaly, as it was described, is noted by a full bench in K.M. Lloyd v. International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty College [Print Q5446] and, by inference, the bench is of the view that the tests are different in s. 170CJ(1) and (2). That there is a different formula is clear but we are of the view that the formulations are based on the stage of proceedings at which they occur. Section 170CJ(1) relates to the initiation of proceedings. Section 170CJ(2) relates to the failure to discontinue or the discontinuance of the matter. In each case what attracts the discretion to award costs is unreasonable action or the absence of sufficient reason for the action taken. What is considered to be without reason is determined by reference to the stage that the proceeding has reached. We note that this leaves open the possibility that proceedings may commence which are with reasonable cause but may, in particular circumstances at a later stage, be further prosecuted unreasonably.

We are of the view that a party to a proceeding commenced under s. 170CE of the Act in which the Commission has begun arbitrating has acted unreasonably in failing to discontinue the matter if when, at the relevant time, upon the facts apparent to the applicant there was not substantial prospect of success.”

(Emphasis added)

  1. [169]
    The discussion in Veal reveals that a consideration of the facts in each matter is required to determine what is or is not an unreasonable act or omission. In the Commission's view, the phrase 'unreasonable act or omission' connotes something more than mere incompetence, although incompetence will often be an ingredient.  It suggests inter alia a deliberate or reckless action (or inaction) by a representative that is objectively unreasonable by reference to the circumstances in which it occurs.
  1. [170]
    In Sharkey v Life Without Barriers,[63] the Full Bench of the Fair Work Commission concluded:
  1. [92]
    As noted by the Federal Court in Barkhazen, the power to make a costs order against a lawyer must be exercised with care and discretion and only in clear cases. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success. However, an ulterior purpose or an abuse of process cannot be assumed simply because the case does not succeed or even because it is hopeless.

(Emphasis added)

  1. [171]
    The many failings of Mr Rogers as a representative are set out above and do not require repeating. Mr Rogers failed on almost every occasion to comply with directions issued by the Commission. There were repeated listings necessitated to address his delinquency. But even when confronted with his transgressions, Mr Rogers made no efforts to rectify his conduct. To the extent that Mr Rogers might have uttered anything resembling an apology at any point, the Commission never had the impression it was genuine.   
  1. [172]
    So frequent was Mr Rogers' non-compliance with directions orders that the Commission has been left in no doubt that his conduct was not merely a feature of incompetence. The dismissive and casual tones routinely adopted by Mr Rogers gave a clear impression of disdain for the Commission. It was plainly and exclusively the conduct of Mr Rogers that caused the Respondent to incur costs unnecessarily in responding to Ms Dorman's application.
  1. [173]
    Not only did Mr Rogers consistently misconduct himself throughout the life of the proceedings, but he continued to do so during the proceedings in respect of costs. In the circumstances it is prudent to consider Mr Rogers' conduct in those two phases of the proceedings, namely:
  1. From commencement to the request to discontinue proceedings; and
  1. The costs proceedings.
  1. Commencement to discontinuance
  1. [174]
    For the sake of what little expediency can be achieved, it can be noted here that the Commission does not consider that the commencement of the proceedings or any steps up to and including the mention on 27 September 2022 warrant consideration in respect of costs. The application, while misconceived, was made in the somewhat unique circumstances that were a by-product of vaccine mandates and their various consequences for employees who did not comply. Some latitude is therefore allowed.
  1. [175]
    However, on 27 September 2022, Ms Misko (who was still on the record as representative) was given a clear indication of the Commission's pessimistic views and was informed of both the time limitation issue and the Commission's intention to be addressed by the parties pursuant to s 541 of the IR Act. Directions were issued after that mention and these matters were now clearly within the knowledge of Ms Misko.
  1. [176]
    Even if Ms Misko wholly failed to communicate the details of the preliminary issues to Mr Rogers when he took carriage of the matter, Mr Rogers was squarely on notice of these issues by virtue of the directions issued by the Commission to him on 27 September 2022 that expressly referred to them. Those directions read:

…

FURTHER DIRECTIONS ORDER

AFTER the mention in the above matter on 27 September 2022, IT IS ORDERED:

  1. That the Applicant file in the Industrial Registry and serve on the Respondent no later than 4.00pm on 25 October 2022 submissions and any statements of evidence which they intend to rely on in the proceedings, addressing the jurisdictional objection raised by the Respondent pursuant to s 317 of the Industrial Relations Act 2016 (Qld), and further, submissions addressing why the Commission should not dismiss the matter pursuant to s 541(b) of the Industrial Relations Act 2016 (Qld).

…

(Emphasis added)

  1. [177]
    Mr Rogers must have been aware of these issues because he (eventually) filed submissions in response to the directions.   
  1. [178]
    In the Commission's view, Mr Rogers' liability for costs begins as a consequence of his  unreasonable acts and omissions on and after 4 November 2022.
  1. [179]
    The mention on 4 November 2022 was necessitated to address the incompetence of the submissions that had been filed. Mr Rogers was, by that time, the representative on record for Ms Dorman. Had Mr Rogers attended as directed, he would have had the benefit of hearing firsthand the caution the Commission intended to deliver to him. Instead, Mr Rogers sent Ms Kuth in his place.
  1. [180]
    Mr Rogers did not call evidence from Ms Kuth about what she communicated to him following that mention. Given the clear caution evident from the transcript, it is impossible to accept that Ms Kuth, who is apparently a solicitor, misunderstood. In the circumstances, the unsolicited filing of amended submissions, without leave or notice to anyone, was an unreasonable act. It was that act that ultimately necessitated the second mention on 15 November 2022.
  1. [181]
    Following the mention on 15 November 2022 where Mr Rogers was directly informed by the Commission that the submissions filed were incompetent and that he was at risk of a personal costs order, the bare minimum one would expect of Mr Rogers as a representative is that he would consult Ms Dorman about these and obtain her instructions about the progress of the matter. Mr Rogers did nothing of the sort.
  1. [182]
    The best effort Mr Rogers made was to send Ms Dorman a copy of his incompetent and nonsensical submission, without any explanation as to what it purported (but failed) to address. A more unreasonable omission by a representative would be hard to imagine.
  1. [183]
    Further, Mr Rogers contends he spoke to Ms Dorman and recommended she discontinue the proceedings.[64] Ms Dorman rejects this. In giving her evidence on this point, Ms Dorman was adamant that no such recommendation was ever made to her. In the Commission's observation, Ms Dorman's evidence on this was very clear and genuine.[65]
  1. [184]
    Additionally, Mr Rogers contends that Ms Dorman gave him instructions at that time to 'have the matter heard in the usual manner'.[66] Again, Ms Dorman rejects any such instruction.[67] Again, in the Commission's observation, Ms Dorman's evidence on this was very clear and genuine.
  1. [185]
    Mr Rogers was never able to be cross examined on his affidavit. Suffice to say the Commission prefers Ms Dorman's clear account on these points and roundly rejects Mr Rogers' assertions.
  1. [186]
    Even if Ms Dorman had uttered those words, they are not informed instructions from Ms Dorman. In particular, they are not given with any knowledge or understanding of the preliminary challenges confronting the application, and nor do they authorise Mr Rogers to e.g. have those matters listed for hearing.
  1. [187]
    The failures by Mr Rogers to act on the cautions that were issued to him (twice) by the Commission or to communicate those matters to Ms Dorman are, alone, enough to warrant a costs order. Unfortunately, they are just the beginning.
  1. [188]
    Following the second mention on 15 November 2022, the Respondent proceeded to prepare and file its submissions on 25 November 2022. The matter was then listed on 8 December 2022 for mention to ascertain the best way for the Commission to dispose of the matter.
  1. [189]
    Mr Rogers' request for a hearing at the mention on 8 December 2022 was made at a time when he had not had any contact with Ms Dorman for at least three weeks, and the contact he did have (if any) was ineffective. Mr Rogers requested the matter be listed for hearing without obtaining any proper instruction from Ms Dorman who was, at the time, completely oblivious to the existence of the preliminary issues to be addressed. Mr Rogers had the matter set down because it was his preference.[68]  The matter was therefore listed for hearing on 30 January 2023.
  1. [190]
    On Friday 27 January 2023 (the last business day before the matter was due to proceed to hearing), Mr Rogers sent an email purporting to inform the Commission the matter would proceed in the absence of Ms Dorman as, in Mr Rogers' view, her attendance was not necessary. This email gives important insight into the state of mind of Mr Rogers at that time.
  1. [191]
    From the tenor of his email on 27 January 2023, it is clear that Mr Rogers continued to consider that the hearing was necessary and appeared to have every intention to proceed, albeit in the absence of his client. However, within 24 hours of sending that email (on Saturday 28 January 2023), Mr Rogers sought to withdraw as Ms Dorman's representative, and Ms Dorman sought to discontinue the application. The trigger for Mr Rogers' change of heart is revealed in his statement filed in the costs proceedings.
  1. [192]
    In Mr Rogers' statement filed on 15 March 2023, he relevantly says:[69]

Due to other commitments, and the recommendation to discontinue the proceedings I had previously made to Ms Dorman, I did not start preparing for the hearing until the afternoon of Friday, 27 January 2023. On the morning of 28 January 2023 I advised Ms Dorman of my concerns around the filing of the application via email…

(Emphasis added)

  1. [193]
    While this passage suggests a single email was sent to Ms Dorman, there were in fact two emails sent by Mr Rogers to Ms Dorman that morning. Mr Rogers has only attached one of them to his affidavit. The first email was attached to the statement Mr Rogers filed on 20 February 2023 (when he should have filed submissions). While that statement is not admitted as evidence in these proceedings, there is some utility in having regard to the relevant email attached to it.[70]
  1. [194]
    The first email sent to Ms Dorman by Mr Rogers on 28 January 2023 is sent at 8:18am and relevantly reads:

Hi Delma – please read paragraphs 2-12 of the attached submissions from the Respondent and paragraphs 1-7 of the submissions I provided to the QIRC on 9 November 2022.

I will call to discuss the hearing and the issue(s) raised in those paragraphs around lunchtime today.

(Emphasis added)

  1. [195]
    While this email does not identify which of the Respondent's submissions are forwarded, it can only be a reference to the Respondent's submissions filed on 25 November 2022, in which paragraphs 2 – 12 deal with the 'out of time' objection. Notably, it does not foreshadow discontinuance. There is no record of any reply from Ms Dorman.
  1. [196]
    The next email was sent from Mr Rogers to Ms Dorman at 9:52am on 28 January 2023 and is attached to his affidavit that is Exhibit 3. It reads:

Delma,

The submissions state the following:

8. On 25 August 2022, the Registry emailed the parties a copy of the Application and Directions Order confirming the Application was filed in the Registry on 25 August 2022. The Department infers that, despite the advice given to Ms Misko by the Registry, that she did not submit a complying application with the Registry until 25 August 2022.

Were you ever given a copy of this document? It was not provided to us and we were not aware of it. The only application that we were provided was the application that was submitted by email back on 8 August by Natasha which the IRC Registry DID NOT ACCEPT.

We will need to discontinue today – I will call you shortly to discuss.

  1. [197]
    And so, at 9:52am on a Saturday morning, just over 48 hours from the commencement of a hearing that he asked for, Mr Rogers finally sees the case against Ms Dorman that has been repeatedly raised at mentions of the matter since 27 September 2022, over four months before. It was brought to his direct attention in full detail in the Respondent's submission he received on 25 November 2022, two months before.
  1. [198]
    Mr Rogers 'explains' in his statement 'I did not start preparing for the hearing until the afternoon of Friday 27 January 2023'.[71]
  1. [199]
    In his own words, without a hint of contrition or embarrassment, Mr Rogers casually asserts that the sudden request to discontinue was because he did not begin his preparation until Friday afternoon before the hearing which, by coincidence, was immediately after he received an email from the Industrial Registry advising, contrary to his proposal, that Ms Dorman would be required to attend the hearing.
  1. [200]
    One can only presume Mr Rogers 'preparation' involved reading the Respondent's submissions filed 25 November 2022 for the first time that afternoon on the last business day before hearing. At the absolute best, it can be inferred that if Mr Rogers had read those submissions earlier, he did not read them properly.
  1. [201]
    The 'other commitments' he refers to in his explanation are not particularised and accordingly, can be no excuse.
  1. [202]
    The failure to adequately prepare for a hearing in a timely manner by any representative, let alone a legal practitioner, is inexcusable and plainly an unreasonable act or omission.  
  1. [203]
    There is no reasonable basis upon which Mr Rogers could have been unaware of the case argued by the Respondent. Even if one takes into account the alleged failure of communication accompanying the change of representation that occurred on or about 30 September 2022, Mr Rogers was undoubtedly aware that there was an 'out of time' objection from (at least) the mention on 4 November 2022. So much is obvious from the amended submissions on 10 November 2022 that include an additional portion that attempts to address the time limitation objection.
  1. [204]
    What is equally plain is that Mr Rogers did not bother to properly inform himself of the particulars of this objection or discuss it with Ms Dorman until the Saturday morning immediately prior to the hearing on 30 January 2023.
  1. [205]
    Considered in isolation, it is tempting to consider that Mr Rogers' conduct only rises to the level of gross incompetence. But in the broader context of the matter, it is not difficult to conclude from his consistently disrespectful attitude, that Mr Rogers was wilfully ignorant of the objections and concerns raised by the Respondent and the Commission. He did not know, and more importantly, he did not care to know.
  1. [206]
    This attitude is best illustrated by Mr Rogers' response to the Commission's warning about a personal costs order on 4 November 2022 which bears repeating here. When the Commission took the extraordinary step of warning Mr Rogers he may be liable for costs personally he said:[72]

MR ROGERS: That's never going to happen. I won't be paying those costs and we'll simply appeal the matter Commissioner. If you don't want to do your job, we'll get someone else to do it.

  1. [207]
    Mr Rogers' contemptuous disregard for the cautions offered by the Commission, which included cautions about the time limitation objection, plainly demonstrates the causal link between his unreasonable conduct and the costs incurred by the Respondent. Had Mr Rogers earnestly contemplated even just the time limitation issue alone before 4 November 2022, he would in all likelihood have arrived at the same conclusion he reached nearly three months later, after numerous costs had been incurred by the Respondent.
  1. [208]
    For completeness, it ought to be noted that, to the extent Mr Rogers seeks to lay blame on Ms Misko for not adequately instructing him about the late filing, he could easily have overcome that alleged disadvantage if he had made proper enquires when he first had the opportunity to became aware of the Respondent's objection i.e. on or around 4 November 2022, or by 25 November 2022 at the absolute latest.
  2. [209]
    Further, to the extent that Mr Rogers relies on his (alleged) previous 'recommendations to discontinue proceedings' that he says he made to Ms Dorman,[73] the Commission has already concluded that he did not make any such recommendation to her, ever. The period in late 2022 is dealt with above. Subsequent to the mention on 8 December 2022, with one exception, there is no hint of discontinuance raised by Mr Rogers until the Saturday before the hearing.
  1. [210]
    In his statement filed on 20 February 2023 (which is not in evidence), a relevant email from Mr Rogers to Ms Dorman dated 19 January 2023 is attached.[74] It reads:

Hi Delma,

Can you please call me on the below number over the weekend at a time that is most convenient for you.

The Hearing date is 30 January 2023 and we need to discuss whether you should move forward given the comments the Commissioner has repeatedly made to me.

(Emphasis added)

  1. [211]
    This email is entirely inconsistent with Mr Rogers assertions that he had made 'recommendations to discontinue'. This email plainly contemplates the option to proceed albeit in the context of a need to discuss the implications of the Commission's comments to Mr Rogers.
  1. [212]
    Regrettably for Mr Rogers, he has missed two opportunities to have his version of events scrutinised under oath. Consequently, no conclusions can be reached about the veracity or otherwise of matters he has included in a sworn affidavit. But on the available evidence, it would appear that Mr Rogers' sworn account is, at the very least, unreliable.
  1. [213]
    As a consequence of the litany of unreasonable acts and omissions of Mr Rogers that are set out above, he has personally caused the Respondent to incur numerous costs. There could be few clearer factual scenarios warranting the exercise of the Commission's discretion to impose a personal costs order on him.
  1. The costs proceedings
  1. [214]
    For reasons already set out above, Mr Rogers cannot be the subject of a costs order in respect of the costs proceedings. He was not a representative in those proceedings.
  1. [215]
    Further, to the extent s 545(2)(a) of the IR Act might be considered to apply, the Commission considers that Mr Rogers conduct in defending the costs proceeding did not meet the jurisdictional threshold set out in ss 545(2)(a)(i) or (ii). In short, Mr Rogers was entitled to defend such an application. Such an application is sufficiently novel in the Commission such that it could not be said there were no reasonable prospects of success.
  1. [216]
    However, as a matter of public interest, it is worth describing the unreasonable conduct of Mr Rogers in respect of the costs proceedings.
  1. [217]
    Following mentions on 30 and 31 January 2023, the parties were directed to file submissions on costs. As noted above, Mr Rogers initially failed to comply with the direction, but ultimately did so after the Commission intervened and further directed him to do so. The hearing in respect of costs proceeded on 17 March 2023.
  1. [218]
    The costs hearing was scheduled for one day. Ms Dorman gave evidence. Following her evidence, Mr Rogers sought a short adjournment, and the matter was stood down. Upon the parties return, the Commission was advised that an 'in principle' agreement had been reached. Accordingly, Mr Rogers was not required to give evidence and the matter was adjourned pending settlement.
  1. [219]
    Within the next few weeks, the Respondent advised that Mr Rogers had declined to sign a deed they had proffered. Mr Rogers indicated in an email to the Industrial Registry that he could not agree because it would involve an admission of 'wrongdoing where no such wrongdoing took place'. Mr Rogers' excuse for not concluding the 'in principle' agreement is as implausible as it is nonsensical.
  1. [220]
    While the proposed deed is not before the Commission, it can be confidently assumed that it would not compel an 'admission' of any sort, either express or by inference, from Mr Rogers. It is a relatively standard drafting practice to include either a 'no admissions' clause or for a deed to remain silent on such matters. But more importantly, the only issue in contest was who ought to pay costs and how much those costs ought to be. Any agreement resolving this contest could not, on any characterisation, give rise to an admission of 'wrongdoing'.
  1. [221]
    In those circumstances, Mr Rogers has in, all probability, unreasonably reneged on the 'in principle' agreement reached on 17 March 2023. A cynical person might think that, when faced with the immediate prospect of having to give evidence at the costs hearing, Mr Rogers agreed with the Respondent to a settlement 'in principle' as a means of avoiding the scrutiny of the Commission that he (correctly) anticipated was about to be applied to his conduct of the matter.
  1. [222]
    Following confirmation of the failed settlement from Mr Rogers, dates for a resumed costs hearing were discussed. Mr Rogers stated in an email on 27 March 2023 that he would 'work around' a date that was convenient to the Commission and Respondent. Accordingly, a listing notice was issued on 5 April 2023 confirming a hearing date of 23 May 2023. The listing notice was sent to Mr Rogers.
  1. [223]
    At 10:00am on the morning of 23 May 2023, the Respondent and its lawyers attended as directed.
  1. [224]
    Ms Dorman attended as directed.
  1. [225]
    Mr Rogers failed to attend.
  2. [226]
    Mr Rogers could not be raised when attempts were made to contact him by telephone. The details of email delivery of the listing notice to him were also checked and confirmed.  By this time, after all that had transpired since September 2022, the Commission was no longer prepared to waste time indulging Mr Rogers' recalcitrant conduct.  The Commission adjourned the resumed hearing and advised the parties who were present that the matter would be finally determined on the papers. Further, the Respondent was given leave to file a further affidavit setting out their costs. 
  1. [227]
    All parties (including Mr Rogers) received an email confirming this.
  1. [228]
    At 1:35pm on 23 May 2023, Mr Rogers emailed the Industrial Registry and explained that he had incorrectly diarised the resumed hearing for 25 May 2023. The Commission is sceptical about this explanation given the previous conduct of Mr Rogers.
  1. [229]
    For all of the above reasons, the Commission is of the view that Mr Rogers conduct between 30 January until 23 May 2023, but particularly from 17 to 27 March 2023 constituted unreasonable acts and omissions. If the Commission had jurisdiction to do so, it would have no hesitation in imposing a costs order on Mr Rogers for his conduct of the costs proceedings. 
  1. [230]
    The only remaining question is what amount costs ought to be ordered.

What amount should be paid?

  1. [231]
    Rule 70 of the Rules relevantly provides:

70  Costs

  1. This rule applies if the court or commission makes an order for costs under section 545 of the Act.
  1. 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 Court under the Uniform Civil Procedure Rules 1999, schedule 2; or
  1. (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
  1. (c)
    any other relevant factor.
  1. 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. [232]
    The Commission is not bound to apply the Magistrates Court scale in determining what costs are to be paid.[75] Indeed, in the Commission's view, inviting pedantic arguments about which scale items apply will often give rise to fresh areas of dispute that can have the effect of further cost and delay being added. Subject to the Commission being satisfied of the basis for which broader claim for costs is made, the Commission is free to exercise a discretion as to the appropriate amount.[76]
  1. [233]
    On 4 July 2023, Crown Law filed the affidavit, setting out inter alia the costs incurred in the proceedings from 9 September 2022 until 3 July 2023. The affidavit claims the costs incurred amount to a total of $41,624.05. The grounds for the amounts claimed are particularised in the affidavit. The content of the affidavit is discussed in more detail below.
  1. [234]
    Shortly after receipt of the affidavit, Mr Rogers contacted the Industrial Registry and sought leave to reply to it. Leave was granted and direction for filing a response was issued. On 15 July 2023 (one day late) Mr Rogers emailed his reply to the Industrial Registry and the Respondent.
  1. [235]
    In essence. Mr Rogers' reply broadly responds that:
  • it was not a complex matter.
  • It should not require more than a few hours preparation time; and
  • Costs after the discontinuance ought not be included.
  1. [236]
    Mr Rogers, without any hint of irony, submits that the time he took for  preparation is a proper comparator for the Commission to gauge what should equate with reasonable preparation costs.
  1. [237]
    Beyond these very superficial submissions, contained in his email, Mr Rogers provides no challenge to the amounts claimed by the Respondent or the particulars provided to justify them.
  1. [238]
    The affidavit breaks the total costs sought into smaller amounts corresponding with the various stages of the proceedings. The affidavit also provides particulars of those costs which, while not especially illuminating, are sufficient such that the Commission can be confident that the costs claimed are reasonable. 
  1. [239]
    The affidavit claims costs in respect of each period as follows:
  1. a.
    9 September to 4 November 2022 - $2,182.50;
  1. b.
    5 November to 15 November 2022 - $767.00;
  1. c.
    16 November 2022 to 30 January 2023 - $8,295.00;
  1. d.
    31 January to 17 March 2023 - $22,436.55;
  1. e.
    18 March to 23 May 2023 - $5,407.00; and
  1. f.
    24 May to 3 July 2023 - $2,536.00.
  1. [240]
    For all of the reasons set out above, the Commission is not inclined to allow costs for the period between filing of the application and 4 November 2022.
  1. [241]
    Further, the Commission would have been inclined to impose an order for costs associated with the hearing in the costs proceeding for the reasons set out above but is precluded from doing so because Mr Rogers did not participate in those proceedings as a representative and, in the Commission's view, he does not meet the jurisdictional criteria of s 545(2)(a) of the IR Act necessary to evoke the discretion.
  1. [242]
    In the circumstances the Commission considers it appropriate that Mr Rogers pay the Respondent's costs incurred during the period 4 November 2022 to 30 January 2023 being a total amount of $9,062.00.

Other matters

  1. [243]
    Mr Rogers was first admitted to the legal profession in or around October 2012. He held a practicing certificate until June 2022. At the time Ms Dorman came to be represented by Mr Rogers in September 2022, Mr Rogers was admitted to the legal profession but he did not hold a practicing certificate.
  1. [244]
    Mr Rogers appeared in the Commission as representative for Ms Dorman while employed by an entity named 'Reignite Democracy Australia' (‘RDA') which is a quasi-political organisation of the type spawned from the various anti-lockdown and anti-vaccine groups that emerged during the pandemic.
  1. [245]
    In his email response to the affidavit, Mr Rogers describes his role with RDA as having variously been 'in-house counsel' (during the period he previously held a practicing certificate) and 'a commercial role' during the first part of the period he represented Ms Dorman.[77]  
  1. [246]
    By 5 December 2022, Mr Rogers had been issued with a principle practicing certificate and had successfully registered an incorporated legal practice called 'Reignite Legal'. It is not clear whether Reignite Legal and RDA are related entities. The RDA website includes a link titled 'Legal' which redirects to Reignite Legal.[78]
  1. [247]
    Mr Rogers states he did not commence legal work in his practice until 16 January 2023. Presumably Mr Rogers makes this submission because he somehow considers this means his conduct prior to 16 January 2023 was not regulated by the Legal Profession Act 2007 (Qld) (‘LP Act’).
  2. [248]
    Whether Mr Rogers held a practicing certificate or was operating his law firm at the relevant times between September 2022 and May 2023 is largely irrelevant. At all times during the proceedings Mr Rogers was either an 'Australian lawyer' or an 'Australian legal practitioner' within the meaning of the LP Act.[79] Therefore, Mr Rogers' conduct throughout these proceedings was all relevant to the question of his suitability to practice.[80] Further, from 5 December 2022 Mr Rogers' conduct was regulated by the Australian Solicitors' Conduct Rules ('the Solicitors' Rules').
  1. [249]
    The foregoing reasons catalogue a range of conduct by Mr Rogers that, in the view of the Commission, raise serious questions about his suitability to practice. Unlike the Industrial Court of Queensland, the Commission does not have powers to punish for contempt.[81] But it is worth noting that there is at least one incident of explicitly contemptuous conduct by Mr Rogers in addition to his consistent display of disrespectful behaviour towards the Commission both in his demeanour and his repeated non-compliance with directions orders.[82]
  1. [250]
    The Commission is a court of record in Queensland.[83] While non-legally qualified representatives and self-represented litigants will be allowed a degree of tolerance with respect to their conduct before the Commission, persons who meet the LP Act definitions of Australian lawyer or Australian legal practitioner can expect to be held to the same standard of conduct applied in any other court. This is so, regardless of whether they purport to appear as an 'agent'. Professional duties and the regulatory powers of the LP Act cannot be avoided by a practitioner simply 'rebadging' themselves under some other title.      
  1. [251]
    Mr Rogers appears to be closely associated with RDA. RDA was apparently founded on activism opposing lockdowns and vaccine mandates. Throughout the proceedings the Commission had the impression that Mr Rogers' personal views were at the forefront of his representation, and his professional duties to the Commission and his client were secondary.[84] More significantly, the Commission noted with increasing concern the consistent absence of Ms Dorman from the various mentions held throughout the latter part of 2022. It came as no surprise for the Commission to later learn that Ms Dorman was wholly incommunicado throughout the majority of the matter, and that Mr Rogers was pursuing the proceedings almost entirely uninstructed.
  1. [252]
    It ought to be made clear that Mr Rogers is entirely free to hold and exercise his social and political views. But such freedom does not extend to Mr Rogers using clients as a mere vehicle to promote those views before a court or tribunal under the guise of legal proceedings.[85] It was immediately apparent that the extensive (but incompetent) submissions Mr Rogers filed early in these proceedings had the familiar 'anti-vax template' appearance. They made no material reference to Ms Dorman or the circumstances of her dismissal at all. When one then considers the complete absence of meaningful communication between Mr Rogers and Ms Dorman throughout the relevant period, Mr Rogers' conduct as a legal practitioner pressing his misconceived arguments is more than a little concerning. 
  1. [253]
    It is not within the Commission's powers to sanction Mr Rogers for his conduct in these proceedings. However, if Mr Rogers continues to conduct himself in the same manner before other courts or tribunals, then in the Commission's view, he will inevitably bring the profession into disrepute. More concerningly, his conduct may adversely impact a member or members of the public.
  1. [254]
    Accordingly, the Commission intends to direct that the Registrar forward a copy of these reasons to the Legal Services Commissioner for her consideration.

Orders

  1. [255]
    For all of the foregoing reasons, the Commission orders:
  1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matter TD/2022/197 are discontinued.
  1. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the applicant in matter TD/2022/197, Mr Gareth Rogers, must pay the Respondent's costs in the amount of $9,062.00 within 14 days of the date of this order.
  1. Direct the Industrial Registrar forward a copy of this decision to the Legal Services Commissioner for her consideration.

Footnotes

[1] An attempt was made to file a Form 12 – Application for reinstatement earlier, but it was rejected by the Industrial Registry because it did not comply with r 13A(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rule').

[2] The Rules (n 1) r 13A(1).

[3] Industrial Relations Act 2016 (Qld) ('the IR Act') s 317(2)(a).

[4] The Rules (n 1) r 13A(1).

[5] T 1-3, ll 23-35.

[6] T 1-2, ll 24-34.

[7] T 1-4, ll 11-17.

[8] Statement of Nicole Kuth filed 20 February 2023, para. 3.

[9] T 1-3, ll 21-46.

[10] T 1-4, ll 41-43.

[11] T T 1-8, ll 10-15. That caution was firmly reiterated when it was subsequently revealed that Mr Rogers is apparently admitted to the legal profession and was intending on obtaining a practising certificate imminently. See also the Legal Profession Act 2007 (Qld) ('LPA') s 5(1).

[12] T 1-2, ll 23-47.

[13] T 1-3, ll 45-57. See also the LPA (n 11) s 6(1).

[14] T 1-2, ll 13-18.

[15] Section 539(b)(v) of the Act.

[16] T 1-21, ll 20-47.

[17] T 1-21, ll 20-47.

[18] T 1-22, ll 25-45.

[19] T 1-26, ll 25-30.

[20] T 1-26, ll 40-47.

[21] T 1-24 to T 1-27.

[22] T 1-44, ll 40 - 48.

[23] T 1 – 47 – T 1 - 48.

[24] IR Act (n 3) s 545(1).

[25] [2021] ICQ 011. Note – while His Honour's order was displaced by the Court of Appeal in Kelsey v Logan City Council & Ors [2022] QCA 238, the commentary on costs was not disturbed.

[26] [2021] QIRC 436 ('Dawson').

[27] [2020] QIRC 187 ('Watpac').

[28] Fair Work Act 2009 (Cth) s 401(1)(b).

[29] Ibid s 401.

[30] [2013] FWCFB 8960 ('Veal').

[31] Ibid [15].

[32] T 1-3, ll 12-17. 

[33] [2011] FWA 651 ('Khammaneechan') [22].

[34] Exhibit 1.

[35] T 1-19 – T 1-27.

[36] T 1-4, ll 1 – 12.

[37] Exhibit 3.

[38] A Form 20 – Affidavit. 

[39] See Practice Direction Number 3 of 2021 – Electronic filing and hard copies of documents.

[40] T 1-4 to T 1-6.

[41] T 1-34; Exhibit 2.

[42] Exhibit 3, paras. 10, 11 and 29.

[43] See, for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039.

[44] T 1-2 – T 1-4.

[45] T 1-2 – T 1-5.

[46] T 1-3 – T 1-6.

[47] T 1-4, ll 41-43.

[48]Dawson (n 25) [14], citing Latoudis v Casey (1990) 170 CLR 534.

[49] See Attorney General v Wentworth (1988) 14 NSWLR 481, 491.

[50] Watpac (n 26) [12] – [21].

[51] Dawson (n 25) [14].

[52] Exhibit 1.

[53] T 1-21.

[54] T 1-21, l 20 – T 1-22, l 3.

[55] T 1-24, ll 15-25.

[56] Veal (n 29) [70].

[57] T 1-21, l 20 – T 1-22, l 3.

[58] Exhibit 2.

[59] T 1-22, ll 25-48.

[60] T 1-31, l 18 – T 1-33, l 33.

[61] T 1-33, ll 10-40.

[62] Submissions of the Respondent filed 8 February 2023, paras. 33 – 34. 

[63] [2019] FWCFB 7644.

[64] Exhibit 3, para. 13.

[65] T 1-24, ll 15-30.

[66] Exhibit 3, para. 14.

[67] T 1-25, ll 25-45.

[68] T 1-3, ll 50-57.

[69] Exhibit 3, para. 30.

[70] See IR Act (n 3) s 531(2).

[71] Exhibit 3, para 30.

[72] T 1-4, ll 41-43.

[73] Exhibit 3, para. 30.

[74] See IR Act (n 3) s 531(2).

[75] Ipswich City Council v Wendt & Ors [2020] QIRC 164 [76], discussing Marriage v Devine Ltd (2005) 178 QGIG 118.

[76] Golding v Sippel and Laundry Chute Pty Ltd [2021] ICQ 014.

[77] Email from Mr Rogers to the Industrial Registry dated 15 July 2023.

[78] https://www.reignitedemocracyaustralia.com.au/about/. Note also: according to RDA, they are a 1/3 shareholder in Reignite Legal. https://www.reignitedemocracyaustralia.com.au/reignitel/

[79] LPA (n 11) ss 5, 6.

[80] See generally LPA (n 11) ch. 4.

[81] See IR Act (n 3) s 428. 

[82] Australian Solicitors' Conduct Rules 2012 ('The Solicitors' Rules') r 4.

[83] IR Act (n 3) s 429.

[84] The Solicitors' Rules (n 82) r 3.

[85] Ibid r 17.3.

Close

Editorial Notes

  • Published Case Name:

    Dorman v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Dorman v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 335

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    23 Nov 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
Attorney-General v Wentworth (1988) 14 N.S.W.L.R 481
2 citations
Jump To
Cite 1 - (1988) 14 N.S.W.L.R 481
Cite 2 - (1988) 14 N.S.W.L.R 481
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
1 citation
Jump To
Cite 1 - [2021] QIRC 356
Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436
2 citations
Jump To
Cite 1 - [2021] QIRC 436
Cite 2 - [2021] QIRC 436
Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14
2 citations
Jump To
Cite 1 - [2021] ICQ 14
Cite 2 - [2021] ICQ 14
Ipswich City Council v Wendt & Ors [2020] QIRC 164
2 citations
Jump To
Cite 1 - [2020] QIRC 164
Cite 2 - [2020] QIRC 164
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 [2022] QCA 238
1 citation
Jump To
Cite 1 - [2022] QCA 238
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Marriage v Devine Ltd (2005) 178 QGIG 118
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 118
Cite 2 - (2005) 178 QGIG 118
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
1 citation
Jump To
Cite 1 - [2022] QIRC 39
Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187
2 citations
Jump To
Cite 1 - [2020] QIRC 187
Cite 2 - [2020] QIRC 187

Cases Citing

Case NameFull CitationFrequency
Braun v Metro North Hospital and Health Service [2024] QIRC 1143 citations
Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 3) [2025] QIRC 522 citations
Rogers v State of Queensland (Queensland Health) [2025] ICQ 62 citations
Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 212 citations
1

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