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Watson v Graham's Plant Hire Pty Ltd[2025] QIRC 2

Watson v Graham's Plant Hire Pty Ltd[2025] QIRC 2

INDUSTRIAL REGISTRAR

CITATION:

Watson v Graham's Plant Hire Pty Ltd [2025] QIRC 2

PARTY:

Watson, Anthony

(Applicant)

v

Graham's Plant Hire Pty Ltd

(Respondent)

CASE NO:

WC/2023/192

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

7 January 2025

HEARING DATE:

On the papers

MEMBER:

Industrial Registrar Shelley

ORDERS:

  1. 1.
    That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $280.00.
  1. 2.
    Payment is to be made within 21 days of the date of this decision. 

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – Application in Existing Proceedings pursuant to r 64I of the Industrial Relations (Tribunals) Rules 2011 regarding reasonable expenses of producing documents sought in a Notice of Non-Party Disclosure – Application granted in part – Reasonable expenses of $280.00 to be paid by Applicant to Respondent.

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 36

Industrial Relations Act 2016, s 545

Industrial Relations and Other Legislation Amendment Regulation 2022

Industrial Relations (Tribunals) Rules 2011, r 64G, r 64I, r 70

Legal Profession Act 2007 (Qld), s 341(d)

Uniform Civil Procedure Rules 1999, r 249

CASES:

Ariashah v Suncorp (QLD) [2023] NSWPICMR 36

Encyclopaedic Australian Legal Dictionary (online at 3 January 2025) 'costs' (def 1)

Fraser Coast Regional Council v Alderton [2020] QIRC 001

Macquarie Dictionary (online at 3 January 2025) 'expense' (def 1-4)

Macquarie Dictionary (online at 3 January 2025) 'produce/producing' (def 1, 5 and 7)

Macquarie Dictionary (online at 3 January 2025) 'reasonable' (def 1-4)

NJH Pty Ltd v Billabong International Limited & Ors [2010] QSC 239

Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136

Ure v The National Mutual Life Association of Australasia Limited [1999] QSC 10

Wicks v Workers Compensation Regulator (No. 2) [2021] QIRC 112

Reasons for Decision

Background

  1. [1]
    A Notice of Appeal was filed by Anthony Watson (Appellant in the substantive proceedings, and Applicant for the purpose of this decision) on 20 December 2023 against the Workers' Compensation Regulator's decision dated 30 October 2023.
  1. [2]
    A Notice of Non-Party Disclosure (NNPD) was filed in the Industrial Registry by the Applicant on 20 August 2024 requiring the production of documents by Graham's Plant Hire Pty Ltd (Respondent).
  1. [3]
    An Application in Existing Proceedings was filed by the Applicant on 9 September 2024 seeking to amend Schedule 2 of the NNPD, pursuant to r 64G(2) of the Industrial Relations (Tribunals) Rules 2011.
  1. [4]
    A further Amended Application in Existing Proceedings was filed by the Applicant on 16 September 2024 seeking to make further amendments to Schedule 2 of the NNPD to change the dates and documents sought.
  1. [5]
    On 24 September 2024, the Applicant forwarded correspondence from the representative on behalf of the Respondent (Cooper Grace Ward) (dated 18 September 2024) confirming that the Respondent was agreeable to the proposed amendments to the NNPD.
  1. [6]
    On 2 October 2024, Gazenbeek IC issued an Order amending the NNPD in the following terms:
  1. 1.
    The Notice of Non-Party Disclosure dated 20 August 2024 and issued to Graham's Plant Hire Pty Ltd, be varied to the effect that Schedule 2 be worded as per Annexure 'A' to the 'Form 4 – Amended Application in existing proceedings' filed by the Appellant in the Industrial Registry on 16 September 2024.
  1. 2.
    The Appellant is to immediately serve a copy of this Order on Graham's Plant Hire Pty Ltd.
  1. [7]
    Gazenbeek IC issued Directions Order [6] on 6 November 2024, requesting parties in the substantive matter to jointly file in the Industrial Registry an agreed bundle of documents, setting the matter down for telephone mention on 20 March 2025, and a hearing in Mackay on 24, 25 and 26 March 2025.
  1. [8]
    On 8 November 2024, a further Application in Existing Proceedings was filed by the Applicant seeking the following:
  1. 1)
    That pursuant to Rule 64(3) of the Industrial Relations (Tribunal) Rules 2011 the Respondent's expenses in complying with the Notice of Non-Party Disclosure issued at the request of the Appellant be assessed. 
  1. [9]
    As a result of that application, I issued a Directions Order on 13 November 2024 as follows:
  1. 1.
    That the Respondent file in the Industrial Registry, and serve on the Applicant, a Statement of Reasonable Expenses outlining the reasonable expenses of producing those documents outlined in the Amended Schedule 2 to the Notice of Non-Party Disclosure, by 4.00 p.m. on Monday 25 November 2024;
  1. 2.
    That the Applicant file in the Industrial Registry, and serve on the Respondent, a Statement in Response outlining any objections to the Statement of Reasonable Expenses, by 4.00 p.m. on Monday 2 December 2024;
  1. 3.
    That the Respondent file in the Industrial Registry, and serve on the Applicant, a Statement in Reply to any objections raised by the Applicant, by 4.00 p.m. on Monday 9 December 2024.
  1. 4.
    That the Application be heard on the papers before Industrial Registrar Shelley, unless otherwise advised.
  1. [10]
    On 14 November 2024, the Respondent filed in the Industrial Registry, a Statement of Reasonable Expenses pursuant to order 1 of that Directions Order, outlining the total of those expenses as $5,013.00.
  1. [11]
    On 2 December 2024, the Applicant filed in the Industrial Registry its objections to the Respondents Statement of Reasonable Expenses, summarised as follows:
  • the Respondent's Statement of Reasonable Expenses includes items that are reflective of costs and not reasonable expenses;
  • all matters in the Statement of Reasonable Expenses could easily have been dealt with by a lawyer rather than a special counsel or a partner;
  • the Statement of Reasonable Expenses is "…unreasonable insofar as it includes perusing/considering documents that had previously been perused or considered";
  • the Statement of Reasonable Expenses is "…unreasonable insofar as it includes preparing documents that had previously been prepared";
  • the Statement of Reasonable Expenses "…includes the cost of settling documents, which is double-handling and not considered proper or necessary costs"; and
  • the Statement of Reasonable Expenses "…does not reflect the costs of the Respondent searching for and collating the documents disclosed as part of the notice of non-party disclosure.  The documents that were disclosed consisted of around 102 pages".
  1. [12]
    On 9 December 2024, the Respondent filed in the Industrial Registry, its Statement in Reply to the Applicant's objection which outlined, amongst other things, the following:
  1. General Principles
  1. 1.
    The courts have recognised that non-party disclosure necessarily involves an infringement of the rights of the non-party and that it may require the non-party to incur substantial time and expense to comply with the notice.  The purpose of rule 64I of the Industrial Relations (Tribunal) Rules 2011 (IRT Rules) is clearly to provide reasonable monetary compensation for that impost.
  1. 2.
    Further, the reasonable expenses which may be claimed under rule 64I are not limited to the costs of searching for and producing documents required by the notice.  The rule is sufficiently broad to enable the non-party to recover the costs of obtaining legal advice as to whether there is a proper basis in law for the party to require the non-party to comply with the notice.
  1. 3.
    When considering whether legal costs are reasonable, it is ordinary practice to consider the skill and experience of the solicitor who carried out the relevant work, such that costs incurred for a junior solicitor to carry out work, which is then supervised by a senior solicitor, may be considered reasonable.

Relevant legislative framework

Industrial Relations (Tribunals) Rules 2011

  1. [13]
    Rule 64I of the Rules was amended by the Industrial Relations and Other Legislation Amendment Regulation 2022 on 5 August 2022.  This amendment was made to provide a more accurate heading, changing the heading from "Costs of production" to "Reasonable expenses of production".
  1. [14]
    Rule 64I of the Rules provides:
  1. 64I
    Reasonable expenses of production
  1. (1)
    Subject to rule 64G(3), the party must pay the non-party's reasonable expenses of producing a document. [emphasis added]
  1. (2)
    Within 1 month after producing a document, the non-party must give to the party written notice of the non-party's reasonable expenses of producing it.
  1. (3)
    Unless the industrial tribunal otherwise orders, the party may apply to the registrar within 1 month after receiving written notice under subrule (2) for assessment of the expenses.

Consideration

What is the meaning of costs?

  1. [15]
    The Encyclopaedic Australian Legal Dictionary[1] defines 'costs' as:
  1. …The remuneration and disbursements incurred in relation to legal work…Costs are defined as amounts that a person has or may be charged by a law practice for the provision of legal services including disbursements but not including interest…Costs do not include remuneration for work that is not professional work…
  1. [16]
    Relevantly, Merrell DP in Wicks v Workers' Compensation Regulator[2], stated:
  1. The power to order costs against a party to proceedings in court is always referable to a statutory provision because the common law did not sanction the giving of costs between parties. The source of the power to award costs must therefore be found in legislation.
  1. [17]
    The power to award costs falls directly with the Industrial Court of Queensland or the Queensland Industrial Relations Commission pursuant to s 545 of the Industrial Relations Act 2016 (Act) and r 70 of the Rules.
  1. [18]
    In addressing the relationship of the Uniform Civil Procedure Rules 1999 (UCPR) and its relevance to the Rules, Thompson IC in Fraser Coast Regional Council v Alderton[3], stated:
  1. [64]
    The Respondent sought to discredit the offer by suggesting that the Applicant had omitted relevant information about the UCPR and that the offer had subsequently failed to particularise certain requirements in relation to offers to settle matters.
  1. [65]
    Unfortunately for the Respondent, the UCPR has no application to proceedings in the Commission with r 3 of the UCPR specifying:
  1. (1)
    Unless these rules otherwise expressly provide, these rules apply to civil proceedings in the following courts -
  • the Supreme Court
  • the District Court
  • Magistrates Courts.
  1. (2)
    In a provision of these rules, a reference to "the court" is a reference to the court mentioned in subrule (1) that is appropriate in the context of the provision.
  1. The only role for the UCPR in proceedings in the Commission is identified at r 70 of the Rules and relates to the Commission having regard to the scale of costs contained within the UCPR.
  1. [19]
    As there are no legislative provisions granting me the power to award costs in relation to a NNPD, I should not divert from r 64I(1) of the Rules.

What is the meaning of reasonable expenses and producing (a document)?

  1. [20]
    Section 36 of the Acts Interpretation Act 1954 (Qld) (AI Act) relevantly provides:
  1. 36
    Meaning of commonly used words and expressions
  1. (1)
    In an Act, a term defined in schedule 1 has the meaning stated in that schedule.
  1. (2)
    In an Act, a reference to schedule 1 of this Act includes, if the context permits, a reference to this section.
  1. [21]
    The words 'reasonable' and 'expenses' are not defined in either the Act or the AI Act.  Regard should be had to the ordinary meaning of these words.[4]
  1. [22]
    The Macquarie Dictionary[5] defines the word 'reasonable' to mean:
  1. 1.
    endowed with reason.
  1. 2.
    agreeable to reason or sound judgement.
  1. 3.
    not exceeding the limit prescribed by reason; not excessive.
  1. 4.
    moderate, or moderate in price.
  1. and 'expense'[6] to mean:
  1. 1.
    cost or charge.
  1. 2.
    a cause or occasion of spending.
  1. 3.
    the act of expending; expenditure.
  1. 4.
    Commerce
  1. a.
    charges incurred in the execution of an undertaking or commission.
  1. b.
    money paid as reimbursement for such charges.
  1. and 'producing'[7] to mean:
  1. 1.
    to bring into existence; give rise to; cause.
  1. 5.
    to yield; provide, furnish, or supply.
  1. 7.
    to bring forward; present to view or notice; exhibit.
  1. [23]
    I do not agree with the Respondent's outline of General Principles in their Statement in Reply.
  1. [24]
    In NJH Pty Ltd v Billabong International Limited & Ors[8], specifically at paragraph 16, Wilson J stated the following:

Non-party disclosure necessarily involves an infringement of the rights of the non-party, and, as it clearly did in this case, it may require the non-party to incur quite substantial time and expense in compliance.  The purpose of rule 249 is clearly to provide reasonable monetary compensation for that impost and to provide a mechanism for resolving any dispute about what is reasonable in the circumstances.

  1. [25]
    Rule 249 of the UCPR refers to "reasonable costs and expenses of producing a document".  Rule 64I of the Rules refers to "reasonable expenses of producing a document".
  1. [26]
    As outlined above, costs and reasonable expenses are quite different in their meaning.  As stated by Thompson IC in Fraser Coast Regional Council v Alderton[9], the UCPR has no application to proceedings in the Commission.  This would also apply to proceedings before me.
  1. [27]
    As submitted in the Respondent's Statement in Reply, s 341(d) of the Legal Profession Act 2007 (Qld) as well as the decision in Ariashah v Suncorp (QLD)[10], reference is made to what is a fair and reasonable amount of legal costs. 
  1. [28]
    In Taylor v Dixon Advisory Ltd[11], Refshauge J said in relation non-party production:

Though part of the regime of disclosure, the Notice for Non-Party Production has close similarity to the subpoena to produce documents. 

Refshauge J went on further to state:

The costs complying with the notice include the searching for, collating, copying if necessary … and producing the documents.

Conclusion

  1. [29]
    The Respondent submitted that r 64I of the Rules is sufficiently broad to enable the non-party to recover the costs of obtaining legal advice as to whether there is a proper basis in law, citing Ure v The National Mutual Life Association of Australasia Limited[12], and further that the legal costs included in the Respondent's Statement of Reasonable Expenses were reasonably incurred and paid by the Respondent to comply with the Applicant's notice.
  1. [30]
    Rule 64I of the Rules refers to 'reasonable expenses of producing a document'.  The 'reasonable expenses' submitted by the Respondent included items that are reflective of costs and not reasonable expenses.
  1. [31]
    I have considered the Statement of Reasonable Expenses submitted by the Respondent, the Applicant's Statement in Response, and the Respondent's subsequent Statement in Reply and, for the reasons outlined above, I order as follows:

1. That the reasonable expenses to be paid by the Applicant to the Respondent be in the amount of $280.00.

2. Payment is to be made within 21 days of the date of this decision. 

Footnotes

[1] Encyclopaedic Australian Legal Dictionary (online at 3 January 2025) 'costs' (def 1)

[2] Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112 at [7]

[3] Fraser Coast Regional Council v Alderton [2020] QIRC 001 at [64]-[65]

[4] As outlined in Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112, citing R v A2 [2019] HCA 35

[5] Macquarie Dictionary (online at 3 January 2025) 'reasonable' (def 1-4)

[6] Macquarie Dictionary (online at 3 January 2025) 'expense' (def 1-4)

[7] Macquarie Dictionary (online at 3 January 2025) 'produce/producing' (def 1, 5 and 7)

[8] NJH Pty Ltd v Billabong International Limited & Ors [2010] QSC 239 at [16]

[9] Fraser Coast Regional Council v Alderton [2020] QIRC 001 at [65]

[10] Ariashah v Suncorp (QLD) [2023] NSWPICMR 36 at [57]-[58]

[11] Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136 at [31] and [36]

[12] Ure v The National Mutual Life Association of Australasia Limited [1999] QSC 10

Close

Editorial Notes

  • Published Case Name:

    Watson v Graham's Plant Hire Pty Ltd

  • Shortened Case Name:

    Watson v Graham's Plant Hire Pty Ltd

  • MNC:

    [2025] QIRC 2

  • Court:

    QIRC

  • Judge(s):

    Industrial Registrar Shelley

  • Date:

    07 Jan 2025

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
Fraser Coast Regional Council v Alderton [2020] QIRC 1
3 citations
Jump To
Cite 1 - [2020] QIRC 1
Cite 2 - [2020] QIRC 1
Cite 3 - [2020] QIRC 1
NJH Pty Ltd v Billabong International Limited [2010] QSC 239
2 citations
Jump To
Cite 1 - [2010] QSC 239
Cite 2 - [2010] QSC 239
R v A2 [2019] HCA 35
1 citation
Jump To
Cite 1 - [2019] HCA 35
Taylor v Dixon Advisory Ltd (2010) 5 ACTLR 136
2 citations
Jump To
Cite 1 - (2010) 5 ACTLR 136
Cite 2 - (2010) 5 ACTLR 136
Ure v The National Mutual Life Association of Australasia Ltd [1999] QSC 10
2 citations
Jump To
Cite 1 - [1999] QSC 10
Cite 2 - [1999] QSC 10
Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112
3 citations
Jump To
Cite 1 - [2021] QIRC 112
Cite 2 - [2021] QIRC 112
Cite 3 - [2021] QIRC 112

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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