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  4. Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 3) - [2025] QIRC 52

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Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 3)[2025] QIRC 52

Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 3)[2025] QIRC 52

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mohr-Edgar v State of Queensland (Legal Aid Queensland) & Ors (No. 3) [2025] QIRC 052

PARTIES: 

Mohr-Edgar, Sandra

(Complainant)

v

State of Queensland (Legal Aid Queensland)

(First Respondent)

And

Paul Davey

(Second Respondent)

And

Nicky Davies

(Third Respondent)

And

Toni Bell

(Fourth Respondent)

CASE NO:

AD/2019/67

PROCEEDING:

Application for costs

DELIVERED ON:

18 February 2025

MEMBER:

Pidgeon IC

HEARING DATES:

Respondents' submissions (10 July 2024)

Complainant's submissions (23 July 2024)

Respondents' reply submissions (15 August 2024)

Oral hearing (26 November 2024)

HEARD AT:

Brisbane

ORDERS:

  1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) matter AD/2019/67 is discontinued.
  1. The Complainant is to pay the Respondents' costs in the amount of $41,233.00.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – APPLICATION FOR COSTS – whether an order for costs should be made against the complainant – where the complainant requested to discontinue proceedings – whether it is appropriate to accept the complainant's request for discontinuance – where the respondents object to the complainant's request for discontinuance – where the respondents seek costs – application of r 68(6) of the IR (Tribunals) Rules – consideration of previous attempts to settle the matter – where the complainant is a lawyer and represents herself – where the costs sought do not cover the entire history of the litigation – where it is in the interests of justice to award costs – where the proceedings are discontinued – where the costs award sought by the respondents is granted

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 136 and 141

Industrial Relations Act 2016 (Qld) s 548, 545, sch 2

Industrial Relations (Tribunal) Rules 2011 (Qld) rr 68(6), 70

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Emmanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd (2003) 178 FLR 1

Firat v Workers' Compensation Regulator (No 2) [2024] QIRC 166

Herron v Attorney General (NSW) (1987) 8 NSWLR 601

Latoudis v Casey (1990) 170 CLR 534

Smith v State of Queensland (Queensland Health) [2024] ICQ 19

Reasons for Decision

Background

  1. [1]
    On 6 April 2018, Ms Mohr-Edgar ('the Complainant') filed a complaint with the Anti-Discrimination Commission Queensland ('ADCQ'), now the Queensland Human Rights Commission, alleging direct and indirect discrimination and five victimisation complaints against her employer, Legal Aid Queensland ('LAQ') and three individually named Respondents (together 'the Respondents').[1]
  1. [2]
    On 8 July 2019, the Complainant's matter was referred to the Queensland Industrial Relations Commission ('the Commission').
  1. [3]
    Throughout the life of this matter at the Commission, the parties made various submissions and applications. It is necessary to contextualise the history of the matter before turning to consider whether to order costs. To this end, I have been assisted by a summary of the relevant events set out in the Affidavit of Danielle Williamson, which  states:[2]
  1. On 6 April 2018, the Complainant filed a complaint with the Anti-Discrimination Commission Queensland (ADCQ), now the Queensland Human Rights Commission, which was accepted under sections 136 and 141 of the Anti-Discrimination Act 1991 (the AD Act).
  1. On 12 October 2018 an initial conciliation conference was held with the First Respondent and the Third Respondent, Nicky Davies. The matter was not resolved at the conciliation conference and following the conciliation conference, a further submission was made by the Complainant amending the complaint and adding the Second and Fourth Respondents, Paul Davey and Toni Bell. The parties exchanged submissions as to whether the ADCQ (as it then was) had 'good cause' to accept the components of the complaint that were out of time under section 175 of the AD Act. The out of time components of the complaint were accepted by ADCQ.
  1. On 8 July 2019, the matter was referred to (the) Commission under section 166(1)(a) of the AD Act.
  1. On 2 October 2019, the Respondents were granted leave to be legally represented.
  1. On 18 October 2019, the Complainant filed a statement of facts and contentions.
  1. Between October 2019 and January 2020, the Complainant filed a number of applications relating to disclosure, which the Respondents opposed (Disclosure Applications).
  1. On 18 November 2019, Respondents filed a response to the Complainant's statement of facts and contentions.
  1. On 20 November 2019, a conference was held before Commissioner Power. The matter was unable to be resolved and the conference was adjourned.
  1. On 29 April 2020, the First Respondent filed a suppression application.
  1. On 11 June 2020, the hearing of the First Respondent's suppression application took place before the Commission.
  1. On 12 June 2020, the hearing of the Complainant's Disclosure Applications took place before the Commission.
  1. On 31 August 2020, Commissioner Pidgeon issued a decision dismissing the suppression application.
  1. On 27 October 2020, Commissioner Pidgeon issued a decision regarding the Disclosure Applications.
  1. On 16 November 2020, Ms Mohr-Edgar filed an application (matter C/2020/20) in the Industrial Court of Queensland (ICQ) to appeal the decision of Commissioner Pidgeon 27 October 2020.
  1. On 9 December 2020, a conference of was held before Commissioner Power, which included discussion of an offer for settlement of the substantive proceedings.
  1. On 16 December 2020, the Complainant filed an Amended Application to Appeal.
  1. On 5 and 9 February 2021, a hearing was held in the ICQ before Justice Davis.
  1. On 1 November 2023, Justice Davis handed down his decision in the appeal. It was ordered that the First Respondent produce certain documents and an affidavit concerning whether various call records were in the possession of the First Respondent. Otherwise, the appeal was dismissed.
  1. On 15 November 2023, pursuant to orders issued by Justice Davis on 1 November 2023, the First Respondent filed an affidavit and produced the relevant documents to the Complainant.
  1. On 29 January and 31 January 2024, the parties attended two telephone mentions before Commissioner Pidgeon. Following the second mention, the matter was listed for a five-day hearing from 15 July 2024.
  1. On 22 January 2024, the Complainant filed a Notice to Admit Facts.
  1. On 5 February 2024, the Respondents filed a response to the Notice to Admit Facts.
  1. On 8 April 2024, the Complainant submitted a further amended statement of facts and contentions and outlines of evidence for 11 witnesses. An additional outline of evidence as provide to the Respondents on 9 April, being a total of 12 outlines of evidence.
  1. On 15 April 2024, a further mention was held before Commissioner Pidgeon, and the matter was listed for a further five days of hearing from 26 August 2024.
  1. On 29 April 2024, the Respondents filed their further amended response to the statement of facts and contentions.
  1. On 13 May 2024, the Respondents filed their outlines of evidence.
  1. On 11 June 2024, the Complainant filed a request to discontinue proceedings.
  1. On 14 June 2024, the Respondents objected to the Complainant's request to discontinue proceedings on the basis that the Respondents wished to be heard on the question of costs.
  1. On 20 June 2024, the Commission issued directions, which were amended by further directions issued on 5 July 2024.

Legal Framework

  1. [4]
    In a recent Industrial Court of Queensland decision[3] concerning the Commission's jurisdiction to order costs, his Honour Justice Davis stated: [4]

However, the fact that the jurisdiction arises does not detract from the general policy that each party bears their own costs in the QIRC and the Industrial Court. That policy is still a relevant consideration in the exercise of the discretion which has arisen.

  1. [5]
    Section 548 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides costs provisions for proceedings under the Anti-Discrimination Act 1991 (Qld) ('the AD Act')

Costs provisions

  1. The provisions for costs in schedule 2 apply to a proceeding –
  1. heard by the commission under the Anti-Discrimination Act 1991; or
  2. for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a).
  1. If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.
  1. [6]
    Schedule 2 states that other than as provided for under the schedule, each party usually bears their own costs. Section 4 of the schedule deals with costs against a party in the interests of justice, and provides:

Costs against party in the interests of justice

  1. The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.
  2. In deciding whether to award costs under subsection (1) the commission may have regard to the following –
  1. whether a party to the proceeding in acting in a way that unnecessarily disadvantages another party to the proceeding;
  2. the nature and complexity of the proceeding;
  3. the relative strengths of the claims made by each of the parties to the proceeding;
  4. the financial circumstances of the parties to the proceeding;
  5. anything else the commission considers relevant.
  1. [7]
    Paragraph 8 of the schedule provides that if the Commission may order costs under a provision of the schedule, the costs may be awarded at any stage of the proceeding or after the proceeding has ended.
  1. [8]
    Section 545 of the IR Act provides the general power to award costs and like paragraph 2 of sch 2, states that a person must bear their own costs in relation to a proceeding before the Court or Commission. However, s 548 of the IR Act makes it clear that for Anti-Discrimination matters, the regime set out at sch 2 applies to the extent of any inconsistency.
  1. [9]
    Given that sch 2 (2) clearly provides that in the usual course, the parties bear their own costs, the question for me to consider is whether the 'interests of justice' are such that they displace the general principle that the parties bear their own costs.[5]
  1. [10]
    Paragraph (9)(1) of sch 2 requires that in the event the Commission makes a costs order under a provision of the schedule, the Commission must fix the costs if possible.
  1. [11]
    Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides as follows:

Costs

  1. This rule applies if the court or commission makes an order for costs under section 545 of the Act.
  2. The court or commission, in making the order, may have regard to –
  1. for a proceeding before the commission – the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 3; or
  2. for a proceeding before the full bench – the costs payable on the scale of costs for the District Court under the Uniform Civil Procedures Rules 1999, schedule 2; or
  3. for a proceeding before the court – the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedures Rules 1999, schedule 1; or
  4. 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.

Costs sought by the Respondents in this application

  1. [12]
    As a result of the vacation of the trial at the initiative of the Complainant by way of the Complainant's request to discontinue her matter, the Respondents submit that they have suffered costs thrown away. Throughout the Respondents' submissions and the various affidavits that have been filed in relation to the issue of costs, the Respondents have outlined the basis upon which they have quantified the costs sought.
  1. [13]
    The Respondents submit the following in relation to costs incurred by the Respondents for the representation of Crown Law: [6]

With regard to the prolonged background of the matter, the total costs incurred by the Respondents for the representation of Crown Law, including costs relating to Ms Mohr-Edgar's interlocutory applications and ICQ Appeal (matter C/2020/20), as well as advice in relation to managing associated workplace matters between 9 August 2018 to 10 July 2024 total approximately $291,536.00.

  1. [14]
    The Respondents submit that 'Ms Marr of Counsel is briefed for the conduct of this matter and continues to represent the Respondents in relation to the application for costs under s 548 of the IR Act'.[7]
  1. [15]
    The Respondents say that the 'total costs incurred by the Respondents for the representation of Ms Marr, including costs relating to Ms Mohr-Edgar's interlocutory applications and ICQ Appeal (matter C/2020/20), to date total approximately $79,901'.[8]
  1. [16]
    Despite the submissions regarding what they say are the costs incurred throughout the matter, the Respondents seek costs limited to the period from 8 April 2024 which they have fixed at $41,233.20. They make an alternative claim for their costs for the whole or part of the proceeding as the Commission deems appropriate to be assessed pursuant to r 70(2)(a) of the IR Rules.
  1. [17]
    The basis upon which the costs fixed at the amount of $41,233.20 is sought is addressed in the affidavit of Danielle Williamson of Crown Law filed in the Industrial Registry on 12 July 2024. Relevantly, with regard to costs of engaging Crown Law, Ms Williamson deposes:[9]
  1.  However for the reasons articulated in the Respondents' outline of argument, the primary position of the Respondents is that costs are only sought in respect of the period:
  1. a.
    8 April 2024 (being the date the Complainant's list of witnesses and outlines of evidence were originally due pursuant to the directions of 31 January 2024) to 11 June 2024 (being the date the Complainant filed the notice of discontinuance), the total of which is $15,871.00 (being a conservative calculation); and
  2. b.
    and the costs incurred to date in relation to this application 12 June 2024 to 10 July 2024, the total of which is $11,522 (being a conservative calculation).
  1.  These costs do not take into account any further costs which will be incurred by the Respondents in preparing reply submissions, or appearing before the Commission if necessary, on a hearing of the Complainant's request to discontinue the proceedings.
  1.  These costs can be broken down as follows:
  1. a.
    between 8 April 2024 and 12 April 2024, being $2,537.00;
  2. b.
    between 15 April 2024 and 30 May 2024, being $8,348.50;
  3. c.
    between 4 June 2024 to 11 June 2024, being $4,985.50; and
  4. d.
    between 12 June 2024 to 10 July 2024, being $11,522.00.
  1.  The costs incurred during these time periods were materially for the following: 12171-649 (sic)
  1. a.
    Between 8 April 2024 and 12 April 2024, Crown Law:
  1. i.
    Obtained instructions and considered material, such as correspondence from the Complainant concerning the upcoming hearing scheduled for 26 to 30 August 2024, the amended statement of facts and contentions and the witness evidence.
  2. ii.
    Drafted proposed directions orders and list of witnesses.
  3. iii.
    Conferred with Counsel, Jade Marr, regarding outlines of evidence and the upcoming hearing.
  1. b.
    Between 15 April 2024 and 30 May 2024, Crown Law:
  1. i.
    Appeared at the mention, instructing Counsel for the Respondents, before Commissioner Pidgeon on 15 April 2024.
  2. ii.
    Provided advice and received instructions following the mention dated 15 April 2024.
  3. iii.
    Drafted the Respondents' further amended statement of facts and contentions, and the outlines of evidence, which included conferring with witnesses.
  4. iv.
    Drafted and corresponded with the Complainant regarding an offer of settlement.
  1. c.
    Between 4 June 2024 and 11 June 2024, Crown Law:
  1. i.
    Prepared an updated brief to Counsel, being the documents referred to in the further amended statement of facts and contentions.
  2. ii.
    Conferred with Counsel and received instructions regarding the Respondents' outline of argument and the upcoming hearing.
  1. d.
    Between 12 June 2024 and 10 July 2024, Crown Law:
  1. i.
    Provided advice to the Respondents with respect to prospects of pursuing costs and correspondence with Respondents regarding same.
  2. ii.
    Prepared this affidavit and the affidavit of Robyn Wilkinson with respect to costs.
  1. [18]
    With specific regard to costs of engaging Counsel, Ms Williamson says:[10]
  1.  However, as stated above, the primary position of the Respondents is that costs are only sought in respect of the period:
  1. a.
    8 April 2024 (being the date the Complainant's list of witnesses and outlines of evidence were originally due pursuant to the directions of 31 January 2024) to 11 June 2024 (being the date the Complainant filed the notice of discontinuance), the total of which is $8,400; and
  2. b.
    the costs in relation to this application from 12 June 2024 to 10 July 2024 (being the ate of filing this affidavit and the submissions, which it accompanies), the total of which is $5,440.
  1.  The costs incurred during these time periods were materially for the following:
  1. a.
    Between 8 April 2024 and 11 June 2024, Ms Marr:
  1. i.
    Considered the Complainant's amended statement of facts and contentions, list of witnesses and outlines of evidence and conferred with Crown Law in relation to these matters and the approach for the upcoming mention listed on 15 April 2024.
  2. ii.
    Reviewed and settled draft directions and conferred with Crown Law regarding proposed directions and identifying gaps within the Complainant's evidence and previous disclosure.
  3. iii.
    Provided advice to Crown Law ahead of the mention listed for 15 April 2024.
  4. iv.
    Appeared at the mention, instructed by Crown Law, before Commissioner Pidgeon on 15 April 2024.
  5. v.
    Reviewed the Complainant's amended list of witnesses and drafted and settled the Respondents' further amended response and conferred with Crown Law regarding this.
  6. vi.
    Conferenced with witnesses in preparation for drafting statements of evidence.
  7. vii.
    Reviewed and settled the Respondents' further amended response and conferred with Crown Law regarding same.
  8. viii.
    Reviewed and settled the Respondents' outlines of evidence and conferred with Crown Law regarding same.
  9. ix.
    Drafted a letter of offer to the Complainant outlining the Respondents' views with respect to costs and conferred with Crown Law regarding same and other outstanding matters for preparation for hearing.
  10. x.
    Liaised with Crown Law regarding queries raised by witnesses in respect of the hearing, including those witnesses which had been issued attendance notices on behalf of the Complainant.
  11. xi.
    Read and considered the Complainant's request to discontinue proceedings, and provided advice to Crown Law and the First Respondent in relation to same.
  1. b.
    Between 12 June 2024 and 10 July 2024, Ms Marr:
  1. i.
    Liaised with Crown Law in respect of the Complainant's request to discontinue the proceedings, the Respondents' response in respect of same, and the directions issued by the Commission in respect of same.
  2. ii.
    Reviewed and settled affidavit material in support of the Respondents' objection the Complainant's request to discontinue proceedings, liaised with Crown Law in respect of same, prepared outline of argument.
  1. [19]
    Ms Mohr-Edgar says that in accruing legal costs of $371,437, the Respondents' legal costs are greater than the combined total of all the financial relief she sought and the cumulative total of all offers made in the proceedings. Ms Mohr-Edgar submits that the Respondents have lost all sense of proportion.[11]
  1. [20]
    Ms Mohr-Edgar submits that LAQ has a merit test for grants of aid and that one of the tests is the 'prudent, self-funded litigant test'. Ms Mohr-Edgar says that a prudent self-funded litigant would not spend $371,437 on litigation when the entire relief sought at its highest was much less than this. Ms Mohr-Edgar also says that LAQ could have accepted her offer ($20,000) and settled proceedings at an earlier stage prior to the interlocutory hearings. Alternatively, Ms Mohr-Edgar says that the Respondents could have accepted her non-financial offer in October 2018 prior to the proceedings commencing.[12]

Approach to application

  1. [21]
    Schedule 2 sets out a range of matters which guide the decision-making on an application for costs. As is discussed above, I may make such an order if I consider the interests of justice require the order be made.[13] Schedule 2 (2)(a)-(e) sets out a range of matters I may have regard to in deciding whether it is in the interests of justice to award costs. These considerations include:
  • whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;
  • the nature and complexity of the proceeding;
  • the relative strengths of the claims made by each of the parties to the proceeding; the financial circumstances of the parties to the proceeding;
  •  anything else the commission considers relevant.
  1. [22]
    The parties have made both written and oral submissions addressing the application for costs. I will consider the submissions of the parties as they relate to each of the matters above. I will also set out any general submissions of the parties before finally determining the matter having considered all of the material and submissions available to me.

What is meant by 'the interests of justice'?

  1. [23]
    The Respondents submit that the governing criterion in consideration of the application is 'the interests of justice'. The Respondents cite Herron v Attorney-General for NSW,[14] where President Kirby (as his Honour then was) observed the meaning of the expression 'interests of justice' in the context of a discretion to direct a second coronial inquiry:[15]

Those words 'in the interests of justice' are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit.

  1. [24]
    The Respondents submit that I am not bound by other cases on s 548 or sch 2 of the Act as 'where the interests of justice lay is necessarily a fact-driven exercise which will turn on the actual circumstances of the matter'.[16] With regard to the discretionary factors set out in sub-s 2 of item 4 of sch 2, the Respondents say these may or may not be relevant depending on the individual circumstances of the case and that they are not essential to the evaluation and do not provide a 'set-in-stone template or checklist' for decision-making.[17]
  1. [25]
    The Respondents say that on 11 June 2024, one day after her outline of argument was due, and five years after the proceeding was commenced, Ms Mohr-Edgar filed her request to discontinue. The Respondents argue that Ms Mohr-Edgar should not be permitted to discontinue her matter without appropriately compensating the Respondents by way of costs.
  1. [26]
    Further, the Respondents point out that Ms Mohr-Edgar's request to discontinue was not filed until after the Respondents were required to comply with the directions as to their evidence, and within a month of the start date of the hearing.[18]
  1. [27]
    The Respondents submit that:[19]

The interests of justice require that the burden occasioned by the (Complainant's) persistence in the litigation, notwithstanding the matters raised above, should be borne, at least in part, by the applicant.

  1. [28]
    The Respondents have made submissions regarding various without prejudice offers made between the parties throughout the life of the proceedings. The most recent without prejudice offer between the parties was made by the Respondents on 29 May 2024.[20] The Complainant rejected this offer on 4 June 2024.[21]
  1. [29]
    The Respondents set out several reasons why Ms Mohr-Edgar should not be permitted to discontinue her matter without paying costs to the Respondent:[22]
  1.  First, it is important to bear in mind that whilst the (Complainant) is self-represented, she is in fact a qualified lawyer and an experienced litigator. That is significant here because irrespective of the (Complainant's) experience in this jurisdiction, she had the ability to exercise legal and forensic judgment in respect of the conduct of her claim.
  1.  Second, notwithstanding that fact, the (Complainant) cast her claim in a way which is unnecessarily complex and which captures alleged conduct extending back to 2009. Further, the relief sought is broad and extensive. These matters have implications for the costs incurred in responding to and dealing with the claim.
  1.  Third, the (Complainant) chose to conduct the proceeding in a way which was unnecessary onerous and complicated. An example of this can be seen in the (Complainant's) approach to disclosure. This is detailed in a letter which is exhibit 'DW-02' to the affidavit of Ms Williamson, and will not be repeated here.
  1.  Fourth, much of the (Complainant's) claim is stacked on bare assertions. It must have been apparent to the applicant, exercising proper forensic judgment, that such assertions would not have come up to proof.

…

  1.  Fifth, a separate but related point, is the scale of the gravity of the allegations. There can be no doubt that the principles set down in Briginshaw are invoked. Again, the (Complainant) must have had this at the forefront of her mind in respect of the challenges of substantiating her case.

…

  1.  Sixth, as to the financial circumstances of the parties, Legal Aid is a publicly funded entity which is established to give 'legal assistance to financially disadvantaged persons in the most effective, efficient and economical way'.[23] The financial cost of this litigation to date has been $371,437.[24] The cost of this litigation directly impacts the resources and funds available to Legal Aid. Legal Aid must publicly account for its expenditure, and this includes any decision to fail to take cost recovery action.[25]

…

  1.  Seventh, the respondents have engaged in several attempts to settle the dispute with the applicant which have not been accepted.[26] On 9 December 2020, the respondents offered to settle the dispute with the applicant in the amount of $100,000 on terms which included her resignation of employment.[27] The rationale underpinning that offer is explained in the without prejudice letter of 18 March 2021.[28]

…

  1.  Eighth, the respondents only seek their costs from 8 April 2024 in the fixed amount of $41,233[29] (and in the alternative, seek their costs for the whole or part of the proceeding, as assessed). This is because, on the most generous view, the fundamental deficiencies in the  (Complainant)'s case must have been readily apparent to her by the time of compliance with the directions as to her evidence on 8 April 2024. [30]
  1. [30]
    The Respondents say that the interests of justice do not favour shielding a litigant from the costs consequences of pursuing a claim which 'makes bare assertions of the most significant and destructive kind, only to seek to discontinue at the precipice of a hearing which had been set down since January 2024'.[31]

Schedule 2 (2)(a): Whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding

  1. [31]
    The Respondents submit that Ms Mohr-Edgar unreasonably persisted with her claim after 8 April and after receiving the letter of 29 May 2024, up until she discontinued the matter.[32]
  1. [32]
    Further, the Respondents say with regard to the interests of justice, that all of the allegations Ms Mohr-Edgar has made are a matter of the public record and that having raised the allegations such as collusion, deliberate deception and fabricating evidence against senior lawyers employed by LAQ; suggesting that Ms Brandt improperly refused an RTI request to deny her access to certain material; and making discrimination and victimisation complaints against the most senior employees of the organisation including its current and previous chief executive officer, she now seeks to walk away.[33]
  1. [33]
    The Respondents refer to the affidavit of Ms Wilkinson which outlines the 'real and devastating' impact on the individually named respondents, and the LAQ employees named in the complaint. The Respondents says that if the Complainant is allowed to discontinue her claim, these individuals will be relieved of the stress if giving evidence, but will equally be denied any right of reply.[34]
  1. [34]
    The Respondents note that the affidavit of Ms Wilkinson addresses the practicalities of the special arrangements that have had to be put in place at the workplace during the five years of litigation in this matter.[35] Ms Wilkinson also addresses the workload impacts of the various RTI and other information requests.[36]
  1. [35]
    Ms Wilkinson's affidavit also addresses the adverse media attention and the consequent damage to professional reputations as a result of the outcome of the appeal decision in this matter.[37] Ms Wilkinson also discusses the impact on public confidence in LAQ as an organisation as it is a publicly funded statutory body and charitable organisation with accountability obligations.[38]
  1. [36]
    In response to submissions about the impact of the proceedings on the individual employees of LAQ involved, Ms Mohr-Edgar says that the impact of the actions of two LAQ staff members, her supervisors, in perpetuating the 'false 'transfer file' narrative' has been 'real and devastating' for her.[39] Ms Mohr-Edgar says that the proceedings have been very stressful for her and have detrimentally impacted her health and exacerbated her diagnosis of Generalized Anxiety Disorder.[40]
  2. [37]
    Ms Mohr-Edgar submits that the Respondents rely solely on third party hearsay evidence regarding the effects of the proceedings on the individual Respondents. Ms Mohr-Edgar says that it cannot be said that Ms Dean, Ms Hawkings-Guy and Ms Brandt were denied a right of reply when the Respondents did not intend on calling them as witnesses.[41]
  1. [38]
    Ms Mohr-Edgar says that the Respondents' witness statements were already prepared prior to trial directions being issued, namely between July 2021 and June 2022, while the substantive proceedings were on hold.

Schedule 2 (2)(b): The nature and complexity of the proceeding

  1. [39]
    The Respondents submit that Ms Mohr-Edgar set up a very broad-ranging case, and aspects of her Statement of Facts and Contentions 'haven't even properly engaged with the elements of the Act', resulting in the matter being 'conducted in a way which was made unnecessarily more complex and more expensive' as a result of both the nature of the allegations and the way in which the litigation was conducted.[42] Here, the Respondents give the example of 'attendance notices served before pleadings were even finalised'.[43]
  1. [40]
    The Complainant makes submissions in relation to the effect of the nature and complexity of the proceedings in relation to whether I should make a costs order against her. She refers to the Respondents' submissions which assert that, although the Complainant is self-represented, she is 'she is in fact a qualified lawyer and an experienced litigator'.[44]
  1. [41]
    In response to the Respondents' submissions to this end, the Complainant submits that, 'anti-discrimination law is a complex and technical area of law and difficult for a self-represented litigant to navigate'.[45]
  1. [42]
    The Complainant makes further submissions to this end as she states: [46]

I am a P04 child protection and family lawyer. I work in very different areas of law concentrated on what is in the best interests of children. The respondent argued that LAQ, despite having a civil law section dealing with anti-discrimination law, and Ms Bell and Ms Davies both having been directors of the civil law section needed legal representation because they wouldn't be able to adequately represent themselves. If that is the case, then a P04 child protection lawyer can't be expected to expertly represent herself in a complex and technical area of law. There is also the considerable stress and emotional toll of being self-represented.

(citations omitted)

Schedule 2(2)(c): The relative strengths of the claims made by each of the parties to the proceeding

  1. [43]
    The Respondents submit that, 'on the most generous view, the fundamental deficiencies in the applicant's case must have been readily apparent to her by the time of compliance with the directions as to her evidence on 8 April 2024'.[47]
  1. [44]
    At the hearing of this application, the Respondents noted that on the date Ms Mohr-Edgar's list of witnesses and outlines of evidence were due, she filed a Further Amended Statement of Facts and Contentions. The Respondents say that this indicates that Ms Mohr-Edgar 'did, in fact, have regard to how her pleading lined up against her evidence' and that this is what one would 'expect an experienced litigator to do'.[48]
  1. [45]
    The Respondents referred me to the Further Amended Statement of Facts and Contentions filed on 8 April 2024 and directed submissions to specific parts of that document. The Respondents note that the claim comprises three discrimination complaints: direct discrimination; indirect discrimination; and five victimisation complaints. The Respondents note that Ms Mohr-Edgar bore the onus of proving factual matters and that 'it's not a case where there's any reverse onus at play'.[49]
  1. [46]
    The Respondents turn to the 'two catalytic events that comprise the causes of action' in Ms Mohr-Edgar's case and addresses the discrimination case and the victimisation case.

Discrimination case

  1. [47]
    With regard to the discrimination case, the Respondents say that this centres around Ms Mohr-Edgar's unsuccessful application for a four-week temporary PO5 Senior Lawyer role in 2016. The Respondents say that unfortunately, Ms Mohr-Edgar had mistakenly been told that she had been appointed to the role before that was corrected. The Respondents say that while this is regrettable, it is not discrimination.[50]
  1. [48]
    The Respondents submit that the discrimination claims rely on the Respondents being aware of Ms Mohr-Edgar's alleged impairment, a Generalised Anxiety Disorder, in or around 2016–2017. The Respondents say that Ms Mohr-Edgar did not obtain such a diagnosis until late 2019, some three years after the alleged events. The Respondents say that Ms Mohr-Edgar does not appear to have consulted a practitioner about the alleged Generalised Anxiety Disorder until after the complaint had been made.[51]
  1. [49]
    With regard to her discrimination complaint and the Respondents' position that she would be unable to establish this claim, Ms Mohr-Edgar says that she has highly probative evidence of discrimination, in particular, a minute by Ms Bell explaining her decisions and making 'no less than seven references to anxiety'.[52]
  1. [50]
    The Respondents submit that, as was pointed out to Ms Mohr-Edgar in the correspondence dated 29 May 2024, 'the first real impediment which applies to each of your discrimination complaints will be establishing that you had, in fact, had the alleged impairment in the sense of a diagnosable psychiatric disorder, namely generalised anxiety disorder at relevant time'.[53] The Respondents say that the letter goes on to state that the 'Beech report is retrospective' and 'relies solely on Ms Edgar's account of events and that it doesn't appear that…any attempt was made to get a diagnosis until after the commencement of these proceedings'.[54] On that basis, the Respondents ask how the relevant persons at LAQ could have had knowledge of Ms Mohr-Edgar's impairment in a way that then led them to discriminate on that basis at a time pre-dating all of this'.[55]

Victimisation complaints

  1. [51]
    With regard to the victimisation case, the Respondents say the catalyst to this part of the claim is a phone call Ms Mohr-Edgar alleges occurred between her then-supervisor, Ms Jessica Dean and her previous supervisor, Ms Lyndi Hawkings-Guy. Ms Mohr-Edgar alleges that during that phone call, which she overhead parts of from her workstation, a threat was made to transfer her out of the Family Law Services Team.
  1. [52]
    The Respondents submit that Ms Mohr-Edgar's allegations rely on the accuracy of what she believes she overheard, but also her interpretation of what she heard. Further, the Respondents say that no contemporaneous record of what Ms Mohr-Edgar believes she heard has ever been produced. The Respondents submit that Ms Dean and Ms Hawkings-Guy have always consistently denied that any conversation on 9 May 2018 was about transferring Ms Mohr-Edgar out of the Family Law Services Team.[56]
  1. [53]
    The Respondents also say that on the same day as the alleged telephone call, Ms Dean submitted a referee report which recommended Ms Mohr-Edgar be permanently appointed to a PO4 position on the Family Law Service Team.
  1. [54]
    The Respondents say that Ms Mohr-Edgar's victimisation allegation relies upon Ms Dean and Ms Hawkings-Guy knowing about Ms Mohr-Edgar's discrimination complaint. The Respondents refer to this causative element as 'an even more perilous house of cards' than the alleged conversation she overheard. The Respondents say:[57]

…

The allegations rely on a series of inferences which require the applicant to substantiate that 1. Ms Davies received and read the applicant's email of 8 May 2018 when it was sent. 2. Ms Davies forwarded the email to Ms Camden. 3. 'Ms Hutchings or another HR staff member made enquiries in relation to the ADCQ complaint in Ms Camden's absence'. 4. Someone from HR or Ms Davies herself telephoned Ms Dean and told her of the discrimination complaint prior to the alleged phone call with Ms Hawkings-Guy on 9 May 2018. The allegation here is pure conjecture: 'I assert [Ms Dean] received phone calls from either HR staff or Ms Davies in relation to the ADCQ complaint I had emailed to Ms Davies'

  1. [55]
    The Respondents submit that Ms Mohr-Edgar needs to demonstrate that Ms Dean received phone calls from either HR staff or Ms Davies regarding the ADCQ complaint she had emailed to Ms Davies. To establish that fact, Ms Mohr-Edgar would have needed to elicit evidence-in-chief from Ms Dean or through the cross-examination of Ms Davies or Ms Camden.[58]
  1. [56]
    The Respondents submit that 'even a person without any legal training could appreciate, as a matter of logic, the forensic difficulty in establishing the series of connections necessary to make good those allegations'.[59] Further, the Respondents say that it must have been apparent to Ms Mohr-Edgar as an experienced litigator that it was highly improbable that the case could be made out on the evidence.
  1. [57]
    The Respondents point to paragraph [53] of Ms Mohr-Edgar's Statement of Facts and Contentions where she outlines six phrases she believes she heard Ms Dean say to Ms Hawkings-Guy during a phone call she could hear from her workstation. The Respondents say that the task before Ms Mohr-Edgar was to firstly prove, as a factual matter, what was actually said then to further prove that Ms Mohr-Edgar's interpretation of what was said was accurate. The Respondents say that this would have required Ms Mohr-Edgar to elicit that evidence-in-chief from Ms Dean and Ms Hawkings-Guy. It follows that they were to be called by Ms Mohr-Edgar and so could not be cross-examined by her without leave.[60]
  1. [58]
    With regard to Ms Mohr-Edgar's interpretation of what she alleges was said, the Respondents point to paragraphs [53], [54] and [55] of the Statement of Facts and Contentions and say that these need to be read together. The Respondents say that the matters set out in these paragraphs are ‘highly improbable'.[61]
  1. [59]
    Those paragraphs state:[62]
  1.  Between 8.30am and 10am on Wednesday, 9 May 2018 Ms Dean received a phone call from Ms Hawkings-Guy. I know this because I recall Ms Dean referring to Ms Hawkings-Guy by her first name 'Lyndi'. Ms Dean's office door was open and her part of the phone conversation was clearly audible from my workstation. During this phone conversation Ms Dean stated the following phrases in the following order:
  1. a.
    “she'll be gone from here tomorrow.”
  2. b.
    “I'm not doing mine.”
  3. c.
    “HR just need to finalise some stuff.”
  4. d.
    “Out of Family Law Services.”
  5. e.
    “Telling her tomorrow.”
  6. f.
    “Going to be horrendous.”
  1.  I understood 'she' and 'her' to refer to me. I understood 'here' to mean the Child Protection Team. I understood 'mine' to refer to the two referee reports that were required for the PO4 Child Protection Lawyer recruitment process.
  1.  I understood Ms Dean's overheard comments to Ms Hawkings-Guy to be the communication of a threat to transfer me out of Family Law Services because of the ADCQ complaint that I had lodged on 6 April 2018 and given notice to the first respondent about on 8 May 2018 via my email to Ms Davies.
  1. [60]
    The Respondents point to paragraph [64] of Ms Mohr-Edgar's Amended Statement of Facts and Contentions which it says means that on Ms Mohr-Edgar's own case, on the same day as allegedly threatening to transfer her out of family law services, Ms Dean submits a referee report recommending that Ms Mohr-Edgar be given a permanent P04 position in family law services:[63]

[64]  On 9 May 2018 Ms Dean completed her referee report on 9 May 2018 for me and at approximately 3.05pm on 9 May 2018 electronically submitted the selection report recommending that I be appointed to the P04 position to Ms Davies for approval.

  1. [61]
    The Respondents note that by the time Ms Mohr-Edgar filed the Amended Statement of Facts and Contentions, she had a copy of the recording of the workplace investigation interview with Ms Dean (this is the recording Ms Mohr-Edgar refers to as demonstrating that the investigator instigated the 'transfer of file' narrative).
  1. [62]
    The Respondents point to paragraph [83] of Ms Mohr-Edgar's Amended Statement of Facts and Contentions where she sets out an extract of the recording where Ms Dean says:[64]

…

I wouldn't have said transferring Sandra out of Family Law Services because I don't even think that's possible and I don't even use the term Family Law Services to be honest. Um, and I'm not sure if I spoke to Lyndi on that day about something separate…sometimes other lawyers in team call me to discuss complex child protection files.

…

I'm not sure what it could be referring to but absolutely it wouldn't have been discussing the process with Sandra because at that stage we hadn't had an approval on the selection report

…

I don't have any recollection of that phone call, specifically, but I'm certain in myself that I wouldn't have been having a discussion about a process within earshot of the candidate.

  1. [63]
    The Respondents say that there is nothing in that extract of the investigation report which supports Ms Mohr-Edgar's allegations of victimisation against Ms Dean.[65]
  1. [64]
    The Respondents say that similar points as those above can be made regarding the forensic challenges faced by Ms Mohr-Edgar in demonstrating each of her victimisation claims. The Respondents note that apart from victimisation complaint two, all other victimisation complaints are reliant upon establishing the first victimisation complaint.
  1. [65]
    As an example, the Respondents refer to victimisation complaints 3 and 4 which commence at paragraph [75] of Ms Mohr-Edgar's Amended Statement of Facts and Contentions. This is the allegation that 'On or around 8 or 9 October 2018, Ms Dean and Ms Hawkings-Guy colluded about the evidence they would provide to the external investigator ahead of Ms Hawkings-Guy's interview with the external investigator on or around 9 October 2018'.
  1. [66]
    The Respondents state that the case authorities are clear that collusion is 'an allegation that's akin to fraud'.[66] The Respondents say that accordingly, the standard of proof is as high as it goes in a civil case and that there is no doubt the Briginshaw[67] principle is firmly enlivened on this point.[68]
  1. [67]
    To that end, the Respondents point to paragraph [81] of Ms Mohr-Edgar's Amended Statement of Facts and Contentions where she addresses this matter:[69]
  1.  On the afternoon of on or around 8 or 9 October 2018 Ms Dean had a phone conversation in her office. I assert that this conversation was with Ms Hawkings-Guy ahead of her interview with the external investigator on or around 9 October 2018. I assert that Ms Dean and Ms Hawkings-Guy colluded about the evidence Ms Hawkings-Guy would provide to the external investigator in her interview to ensure that her version of events was consistent with Ms Dean's evidence. Ms Dean had already completed her interview statement with the external investigator on or around 22 September 2018.
  1. [68]
    The Respondents say that the allegation set out above is 'a very serious allegation to make, and it's made out of thin air'.[70] The Respondents say that to succeed, Ms Mohr-Edgar would have needed to elicit a direct confession from Ms Dean or Ms Hawkings-Guy in evidence-in-chief, not cross-examination as they were both her own witnesses. With reference to the extract from the interview with Ms Hawkings-Guy, the Respondents say that there is 'nothing that goes anywhere close to suggesting collusion' and says that 'if anything, Ms Hawkings-Guy's memory is prompted by some of the investigator's questions' but says that this is as far as it goes.[71]
  1. [69]
    Finally, the Respondents take me to victimisation complaint 5 which commences on page 17 of Ms Mohr-Edgar's Amended Statement of Facts and Contentions. This is a complaint raised against Ms Suzie Brandt,  the RTI officer for LAQ. Ms Brandt is not a named person in the Complainant's application. With respect to this element of Ms Mohr-Edgar's claim, she submits at paragraph [109] of her Amended Statement of Facts and Contentions that:[72]
  1. [109]
    The first respondent's RTI Officer Ms Brandt did an act by improperly determining that my RTI application lodged 23 April 2019 was 'non-compliant' when the RTI Application should have been properly found to be compliant.
  1. [70]
    The Respondents say that here, there is no allegation that Ms Brandt had knowledge of Ms Mohr-Edgar's discrimination complaint. With reference to the remainder of the paragraphs addressing this victimisation complaint, the Respondents say that it does not appear to be a victimisation complaint but a complaint about disagreeing with the merits of Ms Grant's evaluation as to the RTI request made by Ms Mohr-Edgar on 23 April 2019.[73]
  1. [71]
    The Respondents make reference to paragraph 113 on page 17 of the Amended Statement of Facts and Contentions where it says Ms Mohr-Edgar advances a case theory involving Ms Brandt informing Ms Langdon and the HR Manager Ms Camden as to the progress of the RTI applications. The Respondents submit that it is not clear what the relevance of that is or how it is a proper victimisation complaint.[74]
  1. [72]
    The Respondents again submit that it should have been reasonably, if not, patently clear to Ms Mohr-Edgar as she was preparing her further amended Statement of Facts and Contentions and at the time her evidence was due, that she was going to have trouble proving these matters.[75]
  1. [73]
    The Respondents refer to a letter sent to Ms Mohr-Edgar on 29 May 2024. This letter is attached to the affidavit of Danielle Williamson and from pages 1 to 4, under the heading 'Why your claims have limited prospects of success', the Respondents set out in detail, the difficulties Ms Mohr-Edgar would face in making out her case regarding each of her complaints.
  1. [74]
    The Respondents also make submissions regarding the gravity of the allegations made by Ms Mohr-Edgar and states that there 'can be no doubt that the principles set down in Briginshaw are invoked' and that Ms Mohr-Edgar 'must have had this in the forefront of her mind in respect of the challenges of substantiating her case'.[76]
  1. [75]
    In relation to the strength of claims made by the Complainant, Ms Mohr-Edgar says 'I had a strong case based on relevant evidence set out clearly in the Form 85A and the Amended Form 85A'.[77]

The external investigation report

  1. [76]
    Ms Mohr-Edgar makes reference to an 'external investigation report arranged by LAQ to investigate the circumstances that are the subject of the victimisation complaint one…'.[78] Ms Mohr-Edgar then goes on to submit that LAQ knowingly perpetuated a false narrative regarding the 'transferred file' which emerged from the initial external investigation report. Ms Mohr-Edgar says that she has listened to the external investigation recordings and that Ms Dean gives 'no indication' in her interview that she was talking with Ms Hawkings-Guy about transferring a client file. Ms Mohr-Edgar says that the external investigator included the 'transfer of a client file' suggestion in Ms Dean's Interview Summary Statement and continued the 'false transfer file' narrative in the interview with Ms Hawkings-Guy on 9 October 2018.
  1. [77]
    Ms Mohr-Edgar says that it was only following the interlocutory hearing regarding disclosure that she was provided with the recordings of the external investigation interviews. Ms Mohr-Edgar notes that in January 2021, the Respondents amended its response and removed the 'false 'transfer file' narrative.
  1. [78]
    Ms Mohr-Edgar makes submissions questioning whether the Respondents 'accept that the external investigator entered the fray and made up the transfer file narrative that was then adopted, or do they say the external investigator did no such thing?'.[79]
  1. [79]
    Ms Mohr-Edgar says that the external investigator put the transfer file suggestion to Ms Dean and she doesn't accept it. However, the external investigator then goes into the next interview and puts to Ms Hawkings-Guy that Ms Dean had said the discussion was about a file transfer. Ms Mohr-Edgar submits that 'Logically, if you then think about it, an external investigator making up a version of events only works if everyone is on board with it'. Ms Mohr-Edgar also says, '…it only works if there has to have been collusion between witnesses..'.[80]
  1. [80]
    Ms Mohr-Edgar says that it is fundamental that there is 'integrity and impartiality and independence in those reports' and that this is what is missing in this matter. Ms Mohr-Edgar says that the Respondents have not sought to defend the external investigation report or the external investigator and that there is evidence that is missing from the proceedings regarding the external investigation.[81]
  1. [81]
    With regard to Ms Mohr-Edgar's submission that it has failed to bring forward evidence regarding the external investigation, the Respondents say that it never got to the point of leading any evidence as the trial did not go ahead on the basis of Ms Mohr-Edgar filing a notice of discontinuance.[82] The Respondents reject any assertion from Ms Mohr-Edgar that it was seeking to remain silent on particular matters when it was Ms Mohr-Edgar who filed the notice of discontinuance before the point of testing and leading the evidence.[83]
  1. [82]
    The Respondents dispute Ms Mohr-Edgar's submission that the victimisation claims rely on the investigation report. The Respondents say that Ms Mohr-Edgar is relying on the interview transcript to establish what the alleged conversation 'was not about', but it doesn't show that the conversation was about 'trying to get her removed or transferred out of the family law services team' as is alleged in the victimisation claim.[84]
  1. [83]
    The Respondents disagree with Ms Mohr-Edgar's submission that the extracts of the investigation interviews show that there must have been collusion because otherwise Ms Hawkings-Guy would have refuted the suggestion put to her by the investigator. The Respondents say that is 'a very long bow to draw' and could equally be seen as someone being interviewed some time after the events 'doing their best to try and turn their mind to what possible subjects, perhaps a conversation on one particular day in a busy office could've been about, taking the suggestion of the investigator and trying to think what it might relate to'.[85]
  1. [84]
    The Respondents say that the interview transcript 'does not go anywhere near showing that…there was or there must've been prior collusion between Ms Dean and Ms Hawkings-Guy'.[86]

Submissions regarding the Australian Solicitor Conduct Rules

  1. [85]
    With reference to the Australian Solicitor Conduct Rules ('the ASCR'), the Respondents submit that as an admitted legal practitioner, Ms Mohr-Edgar must not bring the profession into disrepute.[87] With reference to r 21.3, the Respondents say that '(a) solicitor must not allege any matter of fact in sub-s (1) in any court document (or the Respondents say, any submission) unless the solicitor believes on reasonable grounds that the factual material already available provides a proper process to do so'.[88]
  1. [86]
    The Respondents also point to r 21.4 of the ASCR which requires that:

A solicitor must not allege any matter of fact amounting to criminality fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that, firstly, available material by which the allegation could be supported provides a proper basis for it, and must be satisfied on reasonable grounds of both of these things, the client wishes the allegation to be made after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

  1. [87]
    The Respondents say that in this case, Ms Mohr-Edgar 'was both the solicitor and client in one' but that at the time of pleading, Ms Mohr-Edgar was required by the ASCR to have regard to. The Respondents refer me to case law where following a decision of the court that allegations made were 'baseless' and 'bereft of any substance' and ought to never have been made, on appeal, the Court of Appeal decided to refer the documents filed in the court to the Legal Services Commissioner in relation to the conduct of the solicitors which was inconsistent with r 21.4 of the ASCR.[89]
  1. [88]
    The Respondents say that Ms Mohr-Edgar's obligations under the ASCR are important in this case as these are allegations Ms Mohr-Edgar has made against her then-supervisor and her former supervisor, 'both of whom are respected lawyers in their own right'.[90]
  1. [89]
    The Respondents say that the 'critical issues of justice point' that arises from these submissions is that 'the (Complainant), who is an experienced legal practitioner, should not be permitted to use this process to raise allegations of the most serious kind against her fellow lawyers and other senior persons at LAQ without any proper factual foundation, and then seek to walk away with impunity at the eleventh hour'.[91]
  1. [90]
    Ms Mohr-Edgar says that the ASCR are for solicitors in the course of law, practicing law as solicitors. She says that predominantly the ASCR govern how solicitors are to conduct themselves in their profession while 'actually acting in the role of a solicitor'.[92]
  1. [91]
    Ms Mohr-Edgar says that the Respondents' submission that she is a 'solicitor and client in one' is inaccurate. Ms Mohr-Edgar says that she is not solicitor or client in this scenario, but an employee in a work dispute. Ms Mohr-Edgar says that the Respondents have made many submissions about 'serious allegations being made' but have made no comment about what she says is the 'most serious allegation, and by far the most interesting one' being the conduct of the external investigator.[93]
  1. [92]
    Ms Mohr-Edgar also refers to r 32 of the ASCR, which she says talks about not making unfounded allegations about a solicitor's conduct unless there is a proper basis for it.[94]
  1. [93]
    Ms Mohr-Edgar says that the Respondents are a 'model litigant' and that this means it should act with complete propriety and in accordance with the highest professional standards, including not requiring the other party to prove a matter which the State or an agency knows to be true. Ms Mohr-Edgar says that 'if you know there's something dodgy about the external investigation' then regardless of who has the onus of proof, there is a duty on the Respondents to say that there is a problem with the report. Ms Mohr-Edgar says with regard to the ASCR, it is 'even more despicable if you're aware that (the) external investigator did enter the fray, came up with a version of events, and you've done nothing about acknowledging that in these proceedings'.[95]
  1. [94]
    The Respondents do not accept that the ASCR are confined to a solicitor's conduct in the practice as a solicitor. The Respondents say that when read as a whole, it is clear that the ASCR extend to conduct beyond practising as a solicitor and being 'in the course of law'.[96] The Respondents say that r 32 does not help Ms Mohr-Edgar here and in fact, tends against her given the allegations she has made are directed at other legal practitioners.[97]
  1. [95]
    The Respondents say that in her submissions, Ms Mohr-Edgar has not sought to explain the serious allegations she has made or to refer to any material upon which she says there was a reasonable foundation for making the allegations either at the time she made them, when she filed the Statement of Facts and Contentions or as at 8 April 2024. The Respondents say that instead, Ms Mohr-Edgar has chosen to 'double down on those submissions, and now seeks to impugn the conduct of someone else, being the external investigator'.[98]

Schedule 2(2)(d): The financial circumstances of the parties to the proceeding

  1. [96]
    To the extent that the financial circumstances of the parties is relevant, the Complainant says: [99]

I am generally the sole income earner in my family. I have two children and a sick husband to support. We have considerable medical expenses for my husband as he has serious medical conditions treated by a team of medical specialists (renal physician, urologist, endocrinologist, ENT) and is on several daily prescribed medications. I am self-represented in these proceedings as I cannot afford legal representation. The respondents were aware of my financial and family circumstances as I informed them in my letter dated 25 May 2020.

(citations omitted)

  1. [97]
    With regard to the submissions of Ms Mohr-Edgar regarding her financial circumstances, the Respondents say that these submissions need to be supported by proper evidence and that there is no evidence before the Commission. The Respondents say that Ms Mohr-Edgar could have and was able to file affidavit evidence setting out properly her financial circumstances or discussing other matters she raises relevant to this matter, but has not done so.[100] The Respondents point out that while Ms Mohr-Edgar is self-represented, she is an experienced lawyer and would understand the importance of supporting her submissions in this matter with evidence.[101]
  1. [98]
    Ms Mohr-Edgar says that in circumstances where the Respondents rely on the affidavit of a solicitor providing 'third-hand evidence' of the impact of the litigation on the named Respondents and other employees of LAQ, she should be able to rely on the medical report of Dr Beech as to the impacts that actions and decisions have had on her and her personal circumstances.[102]
  1. [99]
    The crux of the Respondents' submissions regarding the financial circumstances of the parties is set out at paragraph [29] (the sixth point) above.

Schedule 2(2)(e): Anything else the Commission considers relevant

Offers to settle throughout the history of the matter

  1. [100]
    The Respondents refer to the affidavit of Danielle Williamson which it says 'evidences the series of without prejudice offers that have been made throughout the conduct of the matter over a long period of time'.[103]
  1. [101]
    In respect of efforts to settle the matter, in addition to the submission set out above at paragraph [29] (the seventh point), the Respondents say that more recently, on 29 May 2024,[104] in response to Ms Mohr-Edgar's invitation on 22 April 2024, the Respondents offered to settle the issue on the basis of a $5,000 payment and Ms Mohr-Edgar's resignation. The Respondents reiterate that the 29 May 2024 letter sets out in clear terms what it says are the 'significant evidential hurdles' for Ms Mohr-Edgar's case and notes that Ms Mohr-Edgar rejected the offer.[105]
  1. [102]
    Further, the Respondents say that the without prejudice offer of 29 May 2024 was made in response to an email from Ms Mohr-Edgar dated 22 April 2024[106] where she states that she is open to a settlement that includes a requirement to resign from LAQ and invites a proposal on that basis.[107] The Respondents say that it is disingenuous for the Complainant to now criticise that offer on the basis that it invited her resignation.[108]
  1. [103]
    The Complainant makes various submissions in relation to the offers to settle that she has initiated with the Respondents throughout the life of the proceeding. Ms Mohr-Edgar says she made it clear that she found LAQ's insistence on only settling on the basis of her resignation to be distressing and confronting.[109]To this end, the Complainant states that:[110]

I have made several offers to try and settle these proceedings.

  1. I made a non-financial offer in October 2018 following the then ADCQ conference
  1. I made a reasonable offer on 9 May 2020 ($20,000) before the two interim hearings in June 2020. I also wrote to the respondents on 9 May 2020 and responded to their letter alleging abuse of process. I then extended my offer for the respondents' consideration later in May 2020. I was wholly successful in one interim hearing (non-publication order) and partly successful in the other interim hearing (disclosure).
  1. I wrote to the respondents on 5 September 2020 and responded to their concerns.
  1. I offered to settle the appeal on 19 November 2020 on the basis of the respondents disclosing two documents. I was partially successful in the appeal and my offer was more favourable to the respondents than the appeal outcome. The same two documents were disclosed through the appeal outcome along with an additional Affidavit from the respondents.
  1. I responded to the respondents offer (sic) on 25 January 2021. My response indicated that I found their insistence on resignation to be confronting and distressing. I indicated that I was still willing to settle on terms that didn't include resignation and were much lower ($20,000 - one-fifth) than the respondents' offer
  1. There was a more than 2.5 year break in the proceedings between February 2021 to October 2023 awaiting the interim appeal decision.
  1. After the proceedings recommenced I indicated (sic) at the first Directions Hearing that I sought a conference to try and resolve the proceedings and I made an early reasonable offer on 7 February 2024 ($10,000).
  1. The respondents' second offer ($5,000 on condition of resignation) was unreasonable. I cannot afford to give up a permanent full-time position, that I enjoyed, wanted, and still want, to stay in, when I am generally the sole income earner for my family and am only on secondment in a temporary contract position that finishes this year.

Nonetheless, I still filed the request to discontinue very shortly after this offer.

(citations omitted)

Consideration

  1. [104]
    I note the Respondents' submission that they 'only seek costs for a very limited timeframe in the context of a proceeding that has run for five years'.[111] On the basis of the Respondents' submissions, I understand that the date selected from which to seek costs is 8 April 2024 which is the date by which Ms Mohr-Edgar was directed (by an order issued on 1 February 2024) to notify the Respondents of her witnesses and their outlines of evidence. I agree with the Respondents that it was at least by this point that Ms Mohr-Edgar must have turned her mind to her capacity to substantiate the allegations raised in her Statement of Facts and Contentions.[112] I find that from 8 April 2024 to 11 June 2024 is a reasonable timeframe to seek costs and that the Respondents have provided a satisfactory rationale for nominating this timeframe.
  1. [105]
    As has been discussed above, a decision as to whether it is 'in the interests of justice' to award costs may involve consideration of the matters listed in sch 2, pt 4(2). The final of these discretionary considerations involves considering 'any other matter'. I will outline the matters I have considered below before determining if, having regard to all submissions before me, it is in interests of justice that costs be awarded to the Respondent.

The costs being sought

  1. [106]
    While the history of this matter spans several years and relates to events occurring in or around 2018, it is the most recent history of the matter which is the main focus in this decision in circumstances where the Respondents' have confined their application for costs to the period from 8 April 2024 until the date of discontinuance.
  1. [107]
    The Respondents have made submissions about the total of all expenditure on legal representation in these proceedings, however this is not a particular focus for me as it is not all legal expenditure which is being sought. Likewise, I note Ms Mohr-Edgar's submissions that the total amount spent by the Respondents on legal representation is disproportionate to the amount she was seeking to settle the claim. However, as the entire amount expended is not what is sought, I will not consider these matters further.
  1. [108]
    I have considered Ms Mohr-Edgar's submission that the Respondents had already prepared 'witness statements' or outlines of evidence between July 2021 and June 2022. I also note that there was a break in the substantive proceedings, pending the outcome of Ms Mohr-Edgar's appeal in the Industrial Court of Queensland.
  1. [109]
    However, once the decision of the Industrial Court of Queensland in C/2020/20 was released, a mention was held without delay and dates were set down for hearing. As of January 2024, both parties were required to commence planning for the hearing which was to be held for one week from 15 July 2024 and then a further week from 26 August 2024. On 8 April 2024, Ms Mohr-Edgar filed an extensively Amended Statement of Facts and Contentions. This caused the Respondents to undertake the necessary work to file an Amended Statement of Facts and Contentions.
  1. [110]
    Further, the Respondents were required to consider the witness lists and outlines of evidence filed by Ms Mohr-Edgar and determine what evidence it may lead in response. There were also costs involved in developing the correspondence to Ms Mohr-Edgar dated 29 May 2024 making the offer of settlement and setting out what the Respondents deemed to be challenges she would face in putting her case. While Ms Mohr-Edgar rejected that offer of settlement on 4 June 2024, I accept that the Respondents would have continued to prepare for the hearing while awaiting her response. Further to this, it was another week after Ms Mohr-Edgar rejected the offer of settlement before she filed the discontinuance.

Offers of settlement

  1. [111]
    While it has always been open to the Respondents to accept an offer of settlement put forward by Ms Mohr-Edgar, it has also been open to the Respondents to determine that the terms of any settlement were not acceptable to it. The history of the matter includes a high-water mark offer of $100,000 on the condition of resignation made on 9 December 2020. It seems to me that in circumstances where the Respondents rejected all of Ms Mohr-Edgar's claims and had determined to defend the matter, that offer was made on a commercial basis, taking into account the condition of resignation.
  1. [112]
    For completeness, the grounds upon which the Respondents were seeking her resignation as part of any settlement had been clearly explained to Ms Mohr-Edgar.[113]
  1. [113]
    Ms Mohr-Edgar had consistently resisted offers of settlement made on the condition of resignation. However, on 22 April 2024, Ms Mohr-Edgar changed her position and invited an offer of 'settlement that includes a requirement to resign from LAQ'. Following this, such an offer was made. Ms Mohr-Edgar rejected it, apparently on the basis that, 'I cannot afford to give up a permanent full-time position, that I enjoyed, wanted and still want, to stay in, when I am generally the sole income earner for my family and am only on secondment in a temporary contract position that finishes this year'. [114]
  1. [114]
    I accept the Respondents' position that it is disingenuous for Ms Mohr-Edgar to criticise the offer on the basis that it invited her resignation. Ms Mohr-Edgar had communicated a willingness to consider an offer requiring resignation. That Ms Mohr-Edgar did not deem the 29 May 2024 offer adequate is a matter for her. However, the offer was accompanied by correspondence extensively addressing what the Respondents considered were matters fatal to Ms Mohr-Edgar's prospects of success. In circumstances where the Respondents were confident of success, it was open to the Respondents to make the offer in the terms it was made.

The effect of the matter on the parties and on employees of the First Respondent not named in the complaint

  1. [115]
    I accept the submissions of the parties that this matter has had a significant impact on them. That is often the case during proceedings of this nature. In this case, the ongoing proceedings were outside the control of the individually named Respondents.
  1. [116]
    I accept the submissions of the Respondents that the discontinuance of the matter has meant that while relieved of the stress of giving evidence, the discontinuance equally denies a right of reply. Effectively, Ms Mohr-Edgar has made a range of serious claims against individuals and her discontinuance of the matter means that the Commission will not hear the matter and determine whether Ms Mohr-Edgar has been able to establish her discrimination and victimisation complaints. Ms Mohr-Edgar points out that some of the named Respondents were not listed to give evidence to the Commission and that she had to call them as witnesses.
  1. [117]
    In my view, Ms Mohr-Edgar's submissions on this point are somewhat misguided. Whether or not Ms Mohr-Edgar's complaints were made out was a matter for the Commission to determine on the basis of evidence before it. The onus was on Ms Mohr-Edgar to prove her case. Whether they were appearing at the hearing or not, the hearing itself offered the possibility that the complaint would be dismissed. The right of reply would have arisen in a range of ways, including through cross-examination of Ms Mohr-Edgar herself.
  1. [118]
    I understand that the opportunity to have the matter heard and decided took on further significance for those named in published decisions and media reports about the matter.
  1. [119]
    In this case, where serious allegations have been made against a range of people and then withdrawn only weeks before a hearing following many years of litigation, I find the impact on the named Respondents in circumstances where the matter will not be heard, is a matter that weighs in favour of the interests of justice warranting an order for costs.

Ms Mohr-Edgar's claims regarding the external investigation

  1. [120]
    Ms Mohr-Edgar's submissions at hearing were brief in comparison to those made on behalf of the Respondents.
  1. [121]
    To the extent that Ms Mohr-Edgar sought to test the Respondents regarding the investigation report or the role of the investigator, this was a matter for the hearing. In any event, it seems to me that with or without the investigation report, the task before Ms Mohr-Edgar was to demonstrate that the conversation she overheard one side of was about what she says it was about. I am unwilling to find on the balance of probabilities on the basis of the material before me that the excerpts of the investigation report contained in submissions establishes that there was collusion between Ms Dean and Ms Hawkings-Guy. Even without any discussion or narrative about a 'file transfer', the interview responses demonstrate the witnesses saying that it was unlikely that a 'transfer' of Ms Mohr-Edgar was the subject of the conversation. The task then for Ms Mohr-Edgar, as the Respondents point out, would have been to elicit confessions from the relevant witnesses via their evidence in chief.
  1. [122]
    Ms Mohr-Edgar has suggested that the Respondents should have brought forward evidence addressing the external investigation. However, in the absence of Ms Mohr-Edgar making her case, supported by witness testimony and documentary evidence, it is difficult to understand what 'evidence' Ms Mohr-Edgar expected the Respondents to lead. According to Ms Mohr-Edgar's submissions, in January 2021, the Respondents removed the 'false 'transfer file' narrative' from their Statement of Facts and Contentions. That being the case, allegations regarding what the investigation report demonstrated or what may be drawn from the remarks of the external investigator were for Ms Mohr-Edgar to make and support at hearing.

Ms Mohr-Edgar is a lawyer and a self-represented litigant

  1. [123]
    The Respondents have made extensive submissions to the effect that while she is self-represented in this matter, Ms Mohr-Edgar is a qualified lawyer and an experienced litigator. I understand Ms Mohr-Edgar's position is that in representing herself, she was not acting as a lawyer and that, in any case, her background and specialisation is in child protection and family law.
  1. [124]
    I accept Ms Mohr-Edgar's submissions that anti-discrimination law is a complex area. While Ms Mohr-Edgar notes that LAQ submitted that it needed legal representation to adequately represent themselves, I would observe that it was open to Ms Mohr-Edgar to also seek to be legally represented. This was entirely a matter for Ms Mohr-Edgar, and she chose to represent herself in the proceedings.
  1. [125]
    Regardless of one's specialisation or area of experience in the law, basic legal training would be sufficient for one to understand the task before them in substantiating a discrimination or victimisation complaint to the requisite standard. I am of the view that Ms Mohr-Edgar would have comprehended the necessity for her to be able to produce evidence to demonstrate each aspect of her discrimination and victimisation complaints.
  1. [126]
    I am satisfied that Ms Mohr-Edgar understood the gravity of the allegations set out in her Amended Statement of Facts and Contentions. I am further satisfied that as a legally qualified person, Ms Mohr-Edgar would be aware of Briginshaw[115] which stands for the notion that the more serious the allegation and the consequences arising if the allegation is proved, the clearer and more cogent the evidence must be before the Commission is able to comfortably make an adverse finding against the Respondents on the balance of probabilities.
  1. [127]
    Ms Mohr-Edgar would have likewise been well aware that she carried the onus of proving her allegations. Ms Mohr-Edgar's legal training is a matter I will take into consideration.

The relative strengths of the claims made by the parties

  1. [128]
    The parties' submissions on this matter are set out from paragraphs [23]–[103]. Ms Mohr-Edgar did not make detailed submissions on this particular point, however I note that she sent an email to the Commission following the hearing to state that where she did not directly reply to the Respondents' submissions, this does not mean that she accepts them.
  1. [129]
    It is clear upon reading Ms Mohr-Edgar's Statement of Facts and Contentions, that it was going to be challenging for her to establish each of the building blocks and moving parts of her discrimination and victimisation complaints. Proving each of the complaints required a chain of events to have occurred and to be established.
  1. [130]
    Determining whether or not a claim can be made out at hearing is not a matter of considering whether the Complainant believes the complaint to be true. It must be the case that the Complainant believes that they will be able to adduce evidence to establish each aspect of the complaint.
  1. [131]
    As the Respondents note, the allegation of collusion is an allegation 'that's akin to fraud'.[116] Ms Mohr-Edgar would have understood that the Commission would need to be furnished with some very solid evidence if she was going to be successful in proving that Ms Dean and Ms Hawkings-Guy had colluded about the evidence they would provide to the external investigator.
  1. [132]
    There is a further issue in proving that Ms Mohr-Edgar is correct in her interpretation of the one-sided phone call in which she says she overheard Ms Dean communicating certain threats. On this same day, based on Ms Mohr-Edgar's Statement of Facts and Contentions, Ms Dean submitted a selection report recommending Ms Mohr-Edgar's appointment to a P04 position.
  1. [133]
    A further matter that must be considered is the way in which Ms Mohr-Edgar's case was to be run. On 8 April 2024, Ms Mohr-Edgar filed a witness list. That witness list contained three categories of witnesses, including a category of witnesses who she intended to call in the event that the Respondents did not. Ms Mohr-Edgar also issued attendance notices to those witnesses in March prior to submitting her witness list. Effectively, this decision meant that unless she sought leave to cross-examine those witnesses on the basis that they were deemed hostile, Ms Mohr-Edgar would be relying on evidence-in-chief of what these witnesses recalled of the relevant events.
  1. [134]
    At a mention on 15 April 2024, the Respondents' representative noted the approach Ms Mohr-Edgar had adopted and stated that it may well be the case that the Respondents decide not to lead any evidence following the close of the Complainant's case. It was said at that mention that at the close of the Complainant's case, there may be a 'no case to answer submission made or an application to dismiss…all or parts of the (Complainant's) application because she has not done enough to establish all or parts of her case.[117] The Respondents requested that Ms Mohr-Edgar be directed to file a witness list of those witnesses she definitely intended to call.
  1. [135]
    In compliance with my direction, Ms Mohr-Edgar filed a witness list. Having heard the challenges that it may raise for her matter at the mention of 15 April 2024, Ms Mohr-Edgar's witness list confirmed an intention to call a number of witnesses against whom she had made complaints.
  1. [136]
    These were decisions Ms Mohr-Edgar made in relation to how she would put her case before the Commission. In circumstances where the complaints were of a serious nature and the orders sought were substantial, for Ms Mohr-Edgar to be successful, the Commission would have to be satisfied on the balance of probabilities that the complaints were made out.
  1. [137]
    It seems clear to me that Ms Mohr-Edgar's case faced some evidentiary hurdles which would have impacted on the strength of her case and her prospects of success at hearing. I am of the view that as of 8 April 2024 when she filed her witness list and provided her outlines of evidence to the Respondents, Ms Mohr-Edgar as a legally trained person would have understood the challenges she faced in adducing evidence to support her case. I also think that the matters raised by the Respondents at the 15 April 2024 mention could only have served to confirm this understanding.
  1. [138]
    It may have been on the basis of her understanding of the challenges ahead of her in the hearing that Ms Mohr-Edgar wrote to the Respondents on 22 April 2024 inviting a settlement on the basis of a required resignation. This was the first time that Ms Mohr-Edgar had indicated an openness to a settlement involving resignation. If the invitation to settle was not made on the basis of an assessment of her prospects of success in the matter, Ms Mohr-Edgar was provided with another opportunity to consider the strengths of the respective cases of the parties when the Respondents wrote to her on 29 May 2024 offering to settle and setting out an extensive assessment of the evidentiary hurdles Ms Mohr-Edgar faced.
  1. [139]
    While Ms Mohr-Edgar rejected the offer of settlement, 13-days later, she filed a request to discontinue proceedings.
  1. [140]
    I find that the relative strengths of the claims made by the parties favour an order that Ms Mohr-Edgar pay the Respondents' costs as sought.

Submissions addressing the ASCR

  1. [141]
    While there were submissions made with regard to the obligations Ms Mohr-Edgar may have had under the ASCR or any corresponding obligations Ms Mohr-Edgar says the Respondents had under those rules, I do not find that these submissions assist me in determining whether it is in the interests of justice to award costs in this matter. It is not my role to consider whether the ASCR has been complied with and I do not intend to refer issues arising from this matter to any external body.

Financial circumstances of the parties

  1. [142]
    While Ms Mohr-Edgar has not provided any direct evidence as to her specific circumstances, I accept her submission that she will suffer a financial impact if I am to allow the discontinuance on the basis that she pays the Respondents' costs as sought.
  1. [143]
    However, it was always the case that Ms Mohr-Edgar may face a costs application in the event she was unsuccessful. This has been noted by Industrial Commissioner Dwyer in Dorman:[118]

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. [144]
    I have reviewed a range of correspondence exhibited to affidavits filed in support of the Respondents' application. While it related to a disclosure application, correspondence directed to Ms Mohr-Edgar on 8 May 2020[119] and 2 June 2020,[120] drew her attention to the costs jurisdiction with respect to matters brought under the AD Act. It is also the case that in various other correspondence directed to the Respondents, Ms Mohr-Edgar seeks agreement for the parties to bear their own costs with regard to particular proceedings such as conciliation conferences.[121] It follows that Ms Mohr-Edgar was alive to the potential costs implications of continuing the litigation.
  1. [145]
    LAQ is a publicly funded entity 'established to give 'legal assistance to financially disadvantaged persons in the most effective, efficient and economical way''.[122] I accept that the cost of litigation impacts on LAQ's capacity to provide legal assistance to financially disadvantaged people. While I note Ms Mohr-Edgar's submissions that LAQ has spent a disproportionate amount on this litigation, I also note that there were earlier efforts to settle the matter, including one offer of $100,000 (albeit contingent upon resignation). Further, LAQ has confined its costs application to the period from the date Ms Mohr-Edgar was required to file her witness statements and outlines of evidence.
  1. [146]
    While I note the financial impact of an award of costs on Ms Mohr-Edgar, I also take into account the confined nature of the costs sought in the context of long-running and complex litigation. The costs sought relate only to work undertaken on the substantive matter following the outcome of the appeal.

Lack of any explanation as to why the matter was discontinued

  1. [147]
    Ms Mohr-Edgar's submissions do not provide any explanation as to why she decided to discontinue the matter only weeks before the hearing. In fact, the submissions do not provide any explanation at all as to why the matter was discontinued. In the circumstances, Ms Mohr-Edgar's reasons for discontinuation are not something I am able to take into account in determining if it is in the interests of justice to make the costs order sought by the Respondents.

Conclusion

  1. [148]
    The award of costs is intended to compensate a party for its expenditure in participating in litigation where it is either successful, or for costs thrown away where a matter is discontinued or hearing dates are vacated. A costs order is not punitive.[123] The general principle within the jurisdiction of the Commission is that the parties will bear their own costs, however the legal framework provides for circumstances in which, having regard to the particular circumstances of the case, it will be in the interests of justice to order that a party pay the costs of another party.
  1. [149]
    While I note the impact that the proceedings have had on LAQ as an organisation and the individuals involved, I have not given this factor significant weight in my decision to order costs as sought in the application. It is trite to say that litigation often takes a toll on all involved, however, in my view, it must be noted that the seriousness of the allegations and that the matter was withdrawn only weeks prior to the hearing of the substantive matter would have had an adverse impact on, in particular, the named Respondents.
  1. [150]
    I have not given any weight to, nor do I intend to take any action arising from, submissions about the conduct of the parties in the context of the ASCR. It is open to the parties to pursue these grievances in the appropriate jurisdiction.
  1. [151]
    It is my view that in the particular circumstances of this matter, the factor which weighs most heavily in favour of it being in the interests of justice to award the costs sought, is the relative strengths of the parties' claims and the practical realities Ms Mohr-Edgar faced in supporting her claim with evidence. While Ms Mohr-Edgar was self-represented, I cannot ignore the fact that she is a legally trained person and therefore I believe she was in a position to properly assess the strength of her claim, certainly from the point in time the Respondents nominate as the start date of the period for which it seeks costs.
  1. [152]
    I particularly note that the Respondents have confined the costs they are seeking to a narrow period within the protracted history of the matter. The affidavit of Ms Williamson provides a detailed summary of what seems to me to be a reasonable representation of the work undertaken by Crown Law and Counsel during the relevant period. Accordingly, I see no reason to depart from the amount of costs fixed by the Respondents in their application and submissions.

Orders

  1. [153]
    For the reasons given above from paragraphs [104]–[152], I am satisfied that it is in the interests of justice that Ms Mohr-Edgar pay the Respondents' costs as sought in the amount of $41,233.00. Accordingly, I order:

1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) matter AD/2019/67 is discontinued.

2. The Complainant is to pay the Respondents' costs in the amount of $41,233.00.

Footnotes

[1] The Anti-Discrimination Commission Queensland has been replaced by the Queensland Human Rights Commission.

[2] Affidavit of Danielle Williamson filed in the Industrial Registry on 12 July 2024, [5]-[33].

[3] Smith v State of Queensland (Queensland Health) [2024] ICQ 19.

[4] Ibid [29].

[5] Golding v Sippel and The Laundry Chute Pty Ltd; Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT with regard to cost provisions of the QCAT Act.

[6] Affidavit of Danielle Williamson (n 2) [55]

[7] Ibid [61]

[8] Ibid [62]

[9] Ibid [57]-[60].

[10] Ibid [64]-[65].

[11] Complainant's submissions filed in the Industrial Registry on 23 July 2024, 4 at [2].

[12] Ms Mohr-Edgar says the offer is referred to in the Affidavit of Danielle Williamson filed 10 July 2024.

[13] Schedule 2(1).

[14] (1987) 8 NSWLR 601.

[15] Ibid 613.

[16] T1-3 ll36-39.

[17] T1-3 ll41-47.

[18] Respondents' outline of argument filed in the Industrial Registry on 10 July 2024 [39].

[19] Ibid [41].

[20] Affidavit of Danielle Williamson (n 2)  [53]; DW-15

[21] Ibid; DW-16

[22] Respondents' outline of argument (18) [9]-[12].

[23] Legal Aid Queensland Act 1997 (Qld) s 3.

[24] Affidavit of Danielle Williamson (n 2) [55] and [62].

[25] Affidavit of Robyn Wilkinson filed in the Industrial Registry on 12 July 2024 [23].

[26] IR Act, sch 2, Item 7.

[27] Affidavit of Danielle Williamson (n 2), DW-09.

[28] Ibid DW-11.

[29] Ibid [57] and [64].

[30] See the directions of 31 January, [1] and [2].

[31] Respondents' submissions in reply filed in the Industrial Registry on 15 August, [7].

[32] T1-17 ll30-38.

[33] Respondents' Outline of Argument (n 18) [27]-[30].

[34] Ibid [31].

[35] Affidavit of Robyn Wilkinson (n 25) [10]-[13].

[36] Ibid [14]-[15].

[37] Ibid [19].

[38] Ibid [21]-[23].

[39] Affidavit of Dr Michael Beech filed in the Industrial Registry on 29 January 2024.

[40] Complainant's submissions (n 11) 5, 6 at [5] and [6]

[41] Ibid page 5.

[42] T1-18 ll1-6.

[43] T1-18 ll6-8.

[44] Respondents' Outline of Argument (n 18) [9].

[45] Complainant's submissions (n 11), 1.

[46] Ibid, 4 [1].

[47] Respondents' Outline of Argument (n 18) [36].

[48] T1-4 ll23-26.

[49] T1-4 ll35-41.

[50] Respondents' Outline of Argument (n 18) [14].

[51] Ibid 15.

[52] T1-20 ll35-39.

[53] T1-23 ll27-32.

[54] T1-23 ll32-35.

[55] T1-23 ll35-37.

[56] Respondents' Outline of Argument (n 18) [17]-[20].

[57] Ibid, [22].

[58] T1-5 ll16-24.

[59] Respondents' Outline of Argument (n 18) [23].

[60] Ibid [23].

[61] Respondents' Outline of Argument (n 18) [23].

[62] Complainant's Amended Statement of Facts and Contentions filed in the Industrial Registry on 8 April 2024, [53].

[63] Ibid, [64].

[64] Ibid, [83].

[65] T1-6 ll15-17.

[66] T1-7 ll4-8 citing Emmanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd (2003) 178 FLR 1 [1041] – [1044].

[67] Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw')

[68] T1-7 ll34-39.

[69] Complainant's Amended Statement of Facts and Contentions (n 62) [81].

[70] T1-8 ll2-3.

[71] T1-8 ll17-23.

[72] Complainant's Amended Statement of Facts and Contentions (n 62) [109].

[73] T1-9 ll1-5.

[74] T1-9 ll9-15.

[75] T1-9 ll15-20.

[76] T1-4.

[77] Complainant's submissions (n 11), 1.

[78] Ibid, 2.

[79] T1-21 ll16-19.

[80] T1-21 ll26-30.

[81] T1-21 ll45-47.

[82] T1-25 ll1-3.

[83] T1-25 ll7-10.

[84] T1-24 ll30-32.

[85] T1-24 ll37-41.

[86] T1-24 ll43-44.

[87] Rule 5.12.

[88] T1-9-T1-10.

[89] T1-10-T1-11.

[90] T1-11 ll34-38.

[91] T1-11 ll43-47.

[92] T1-20 ll41-47.

[93] T1-12 ll1-10.

[94] T1-22 ll5-8.

[95] T1-22 l45 – T1-23 l3.

[96] T1-24 ll1-3.

[97] T1-24 ll13-15.

[98] T1-24 ll17-25.

[99] Complainant's submissions (n 11), 1.

[100] T1-18 ll39-44.

[101] T1-18 l45 – T1-19 l3.

[102] T1-20 ll25-35.

[103] T1-15; Affidavit of Danielle Williamson (n 2).

[104] Ibid DW-15.

[105] Respondents' Outline of Argument (n 18) [35]; referring to Affidavit of Danielle Williamson (n 2): DW-15; DW-4; DW-16.

[106] Ibid DW-14.

[107] Respondents' submissions in reply (n 31) [4].

[108] Ibid [5].

[109] Refer to Attachment C of Complainant's submissions letter to respondents 25 January 2021.

[110] Complainant's submissions (n 11), 1 – 2 [1] – [8].

[111] T1-4 ll5-8.

[112] T1-4 ll9-19.

[113] Affidavit of Danielle Williamson (n 2) DW-11 pages 2-6.

[114] Complainant's submissions (n 11), 8.

[115] Briginshaw (n 67)

[116] Emmanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd (2003) 178 FLR 1, [1041]–[1044].

[117] T1-6 (15 April 2024).

[118] Dorman v State of Queensland (Queensland Health) [2023] QIRC 335 [70] cited in the Respondents' Outline of Argument (n 18) [6].

[119] Affidavit of Danielle Williamson (n 2) DW-02 [36], [37].

[120] Ibid DW-06, 4.

[121] For example, email dated Friday 20 November 2020, DW-08.

[122] Respondents' Outline of Argument (n 18) [33].

[123] Firat v Workers' Compensation Regulator (No 2) [2024] QIRC 166 citing Latoudis v Casey (1990) 170 CLR 534, 543.

Close

Editorial Notes

  • Published Case Name:

    Mohr-Edgar v State of Queensland (Legal Aid Queensland) & Ors (No. 3)

  • Shortened Case Name:

    Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 3)

  • MNC:

    [2025] QIRC 52

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    18 Feb 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Dorman v State of Queensland (Queensland Health) [2023] QIRC 335
2 citations
Jump To
Cite 1 - [2023] QIRC 335
Cite 2 - [2023] QIRC 335
Emmanuel Management Pty Ltd v Foster's Brewing Group Ltd (2003) 178 FLR 1
3 citations
Jump To
Cite 1 - (2003) 178 FLR 1
Cite 2 - (2003) 178 FLR 1
Cite 3 - (2003) 178 FLR 1
Firat v Workers' Compensation Regulator (No 2) [2024] QIRC 166
2 citations
Jump To
Cite 1 - [2024] QIRC 166
Cite 2 - [2024] QIRC 166
Herron v Attorney-General for N.S.W. (1987) 8 NSWLR 601
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 601
Cite 2 - (1987) 8 NSWLR 601
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Smith v State of Queensland (Queensland Health) [2024] ICQ 19
2 citations
Jump To
Cite 1 - [2024] ICQ 19
Cite 2 - [2024] ICQ 19

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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