Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 19

INDUSTRIAL COURT OF QUEENSLAND CITATION: Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019 PARTIES: LINA SALEH AHMED ALGAHAMDI (appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (respondent) FILE NO/S: C/2021/13 PROCEEDING: Appeal DELIVERED ON: 17 June 2022 HEARING DATE: Application for costs considered on written submissions without oral hearing MEMBER: Davis J, President ORDER/S: 1. That the appellant pay the respondent’s costs of and incidental to the appeal, on the standard basis, to be calculated on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999. 2. The costs be in an amount agreed, or if the parties fail to reach agreement by 1 July 2022: (a) the respondent is to file in the Industrial Registry and serve on the applicant its schedule of costs claimed by 15 July 2022; (b) the appellant is to file and serve any objection to the costs claimed within 21 days of being served with the schedule of the costs claimed; and (c) costs are to be assessed by the Industrial Registrar following an application for costs assessment being made by the respondent and the Registrar may have regard to the Uniform Civil Procedure Rules 1999, Chapter 17A when assessing the costs. 3. The appellant is to pay the respondent’s costs of any assessment. 4. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment. CATCHWORDS: INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - COSTS - where the appellant brought an application for unfair dismissal - where -- 1 of 11 -- 2 that application was dismissed in 2016 - where reopening of the 2016 decision was sought in 2021 - where that application was dismissed - where the 2021 decision was appealed - where that appeal was dismissed - where costs do not follow the event - where the respondent must show that the appeal was made without reasonable cause or that it was reasonably apparent that the appeal had no prospect of success - where the grounds of appeal showed no arguable error of law - where the written submissions on appeal showed no arguable error of law - where the oral submissions identified no arguable error of law - where there was no identified basis to give leave to appeal on a ground other than error of law - whether costs ought to be awarded against the appellant Industrial Relations Act 2016, s 545, s 557, s 565 Industrial Relations (Tribunals) Rules 2011, r 70 Uniform Civil Procedure Rules 1999, r 681 CASES: Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223, related Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010, related Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, followed J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, followed Kanan v Australian Postal and Telecommunications Union (1992) 431 IR 257, followed Kelsey v Logan City Council and Ors [2021] ICQ 11, followed Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136, followed Oshlack v Richmond River Council (1998) 193 CLR 72, cited R v Tait & Bartley (1979) 46 FLR 386, followed State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057, related APPEARANCES: Dr Algahamdi made written submissions Written submissions on behalf of the respondent filed by GR Cooper, Crown Solicitor [1] The respondent, who I will call “the Health Service” successfully defended the appellant’s (Dr Algahamdi) appeal against an order made in the Queensland Industrial Relations Commission (QIRC),1 (the 2021 decision) dismissing an 1 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223. -- 2 of 11 -- 3 application to reopen a decision of the QIRC made on 19 May 2016 (the 2016 decision).2 [2] On the appeal, the following orders were made: “1. The appeal is dismissed. 2. The respondent file and serve by email upon the appellant by 29 April 2022 any written submissions on the costs of the appeal. 3. The appellant file and serve by email upon the respondent by 13 May 2022 any written submissions on the costs of the appeal. 4. Each party have leave to file and serve by 10 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 5. In the absence of any application to make oral submissions on costs of the appeal being filed by 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing”3 [3] I shall refer to the decision of the Court dismissing the appellant’s appeal as “the primary decision”. [4] Pursuant to the orders made upon the primary decision, the Health Service filed written submissions on 29 April 2022 seeking costs of the appeal. That submission was served upon Dr Algahamdi. Dr Algahamdi did not file written submissions within the time ordered, but sought and obtained an extension of time. Submissions were received from Dr Algahamdi on 11 June 2022 (a Saturday) by email. No party made application for leave to make oral submissions on the question of costs. Statutory provisions and principles [5] Proceedings brought pursuant to the Industrial Relations Act 2016 (the IR Act) are not proceedings where “costs follow the event” is the usual rule.4 [6] Section 545 of the IR Act provides: 2 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057. 3 Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010. 4 Uniform Civil Procedure Rules 1999, r 681 and Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J, at 97. -- 3 of 11 -- 4 “545 General power to award costs (1) A person must bear the person’s own costs in relation to a proceeding before the court or commission. (2) However, the court or commission may, on application by a party to the proceeding, order— (a) a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied— (i) the party made the application or responded to the application vexatiously or without reasonable cause; or (ii) it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or (b) a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred— (i) because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or (ii) because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding. (3) The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.” [7] In Kelsey v Logan City Council and Ors,5 I said, of s 545: “[25] Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified: (a) The starting point is that each party bears their own costs.6 5 [2021] ICQ 11. 6 Section 545(1). -- 4 of 11 -- 5 (b) A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.7 (c) The assessment of ‘reasonable cause’ in s 545(2)(a)(i) is: (i) an objective assessment;8 and (ii) made considering the facts existing as at the time of the institution of the proceedings, here the appeal.9 (d) Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.10” [8] The term “without reasonable cause” was the subject of consideration in Kanan v Australian Postal and Telecommunications Union:11 “It seems to me that one way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.”12 [9] As to the quantum of costs, the Industrial Relations (Tribunals) Rules 2011 (the Rules) provide, relevantly: “70 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— (a) for a proceeding before the commission—the costs payable on the scale of costs for Magistrates Courts 7 See the opening words of s 545(2). 8 Wanninawake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35 at [12]-[14] and MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370. 9 Kanan v Australian Postal and Telecommunications Union (1992) 431 IR 257. 10 Maher v Isaac Regional Council [2020] QIRC 191 from [59]. 11 (1992) 431 IR 257. 12 At 264-265. -- 5 of 11 -- 6 under the Uniform Civil Procedure Rules 1999, schedule 2; or (b) for a proceeding before the court or the full bench—the costs payable on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, schedule 1; or (c) any other relevant factor. (3) The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.” Background [10] The facts of the dispute between Dr Algahamdi and the Health Service and the procedural history of that dispute are set out in detail in the primary judgment.13 It is not necessary to undertake a further detailed analysis of those facts. [11] In summary:14 1. Dr Algahamdi was employed by the Health Service as a Senior House Officer; 2. on 29 May 2015, Dr Algahamdi’s employment was terminated; 3. on 18 June 2015, Dr Algahamdi filed an application for reinstatement (the reinstatement application); 4. Dr Algahamdi then left Australia leaving the solicitors acting for her in the reinstatement application without instructions; 5. the Health Service made application to summarily dismiss the claim (the dismissal application); 6. Dr Algahamdi was aware of the dismissal application having been brought; 7. Dr Algahamdi did not give instructions to her solicitors concerning the dismissal application; 8. the dismissal application came before the QIRC and the reinstatement application was dismissed on 19 May 2016 which is the 2016 decision;15 9. some four and a half years later on 16 November 2020, Dr Algahamdi filed an application to set aside the 2016 decision and for orders suppressing her name (the reopening application); 13 Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 at [3]-[31]. 14 Based on the various findings made in the 2016 decision, the 2021 and the primary decision. 15 That is, the 2016 decision: State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057. -- 6 of 11 -- 7 10. the reopening application was dismissed on 22 June 2021 which is the 2021 decision;16 11. in dismissing the reopening application, the QIRC found: ‘1. Although Dr Algahamdi had left Australia shortly after the reinstatement application was filed, she knew that the application was on foot.17 2. She took no steps to prosecute it.18 3. Dr Algahamdi received emails in 2016 and knew that the dismissal application was being made.19” 12. in dismissing the application to suppress Dr Algahamdi’s identity,20 the QIRC referred to various authorities, held that there was no basis to make the order, and held that the application was motivated by no more than a desire “to save [herself] from loss of privacy, embarrassment, distress, financial harm …”.21 [12] From the 2021 decision, Dr Algahamdi appealed, the result of which was the primary decision dismissing the appeal.22 The primary decision [13] Dr Algahamdi’s appeal against the 2021 decision was made pursuant to s 557 of the IR Act. An appeal under that section must be on the basis of an error of law or want or excess of jurisdiction,23 although other grounds may be raised by leave if to do so is in the public interest.24 Dr Algahamdi sought leave, but could identify no matter of public interest.25 [14] Dr Algahamdi raised six grounds of appeal which were: “Ground 1 (Anti-Discrimination Act and Fair Work Act) were totally ignored in this decision; Ground 2 Standard of evidence evaluation by commissioner; Ground 3 Service and Execution of Process Act (SEPA); 16 That is, the 2021 decision: Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223. 17 At [28]. 18 At [29]. 19 At [7] and [34]. 20 Part of the reopening application. 21 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 at [48], following J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, in turn following R v Tait & Bartley (1979) 46 FLR 386 and Industrial Commissioner’s Pidgeon’s judgment in Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136 at [9]. 22 Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010. 23 Section 557(1). 24 Industrial Relations Act 2016, s 557(1) and s 565. 25 Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 at [34]-[36]. -- 7 of 11 -- 8 Ground 4 Publication of decision; Ground 5 Unpaid wages claim (case B/2021/37); Ground 6 Amendment of unlawful dismissal application.” [15] All grounds were dismissed as: “[39] Ground 1 is misconceived. At best, these arguments could only be relevant to the reinstatement application itself. What is under consideration here is the decision not to reopen the reinstatement application. [40] Ground 2 is self-evidently concerned with only factual errors. [41] Ground 3 is misconceived. The Service and Execution of Process Act 1992 (Cth) concerns the service of proceedings within Australia. The dismissal application was validly served on solicitors on the record for Dr Algahamdi in Queensland. After service of the application, they sought to withdraw, and one consideration in the dismissal application was whether or not Dr Algahamdi knew of the hearing date for the application so she could arrange for some appearance on her behalf. The Industrial Commissioner found that she did know of the dismissal application. [42] Ground 4 again raises the Anti-Discrimination Act which is not relevant to the appeal. The publication of a judgment is not ‘defamatory’. [43] Ground 5 concerns an unpaid wages claim which is also irrelevant to the appeal. In oral submissions before me, Dr Algahamdi submitted that issues concerning her unfair dismissal will arise on her unpaid wages claim. Therefore, it is pointless, she submitted, to not allow the unfair dismissal claim to proceed. That submission should be rejected. The issue here is whether Dwyer IC committed legal error. Any Industrial Commissioner hearing the unpaid wages case will rule on the effect on that case of the dismissal of the reinstatement application. [44] Ground 6 concerns an amendment to the principal application, being the reinstatement application. That is not relevant to the matters on the current appeal.”26 The submissions of the parties [16] The Health Service submits that it should have its costs of the appeal calculated on the scale of costs for the Supreme and District Courts. It submits that the discretion 26 Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010. -- 8 of 11 -- 9 to award costs in its favour has arisen as the jurisdictional facts identified by each of s 545(2)(a)(i) and s 545(2)(a)(ii) of the IR Act are fulfilled. [17] As to its submission that the appeal was made vexatiously or without reasonable cause,27 the Health Service submits: 1. Dr Algahamdi’s written submissions did not identify any error of law or excess or want of jurisdiction; 2. there was no basis upon which leave to raise any factual error was demonstrated; 3. none of the grounds of appeal had any substance; 4. the delay in bringing the application before the QIRC for reopening of the 2016 decision made failure of that application all but inevitable.28 [18] As to the ground that it would have been reasonably apparent to Dr Algahamdi that she had no reasonable prospects of success,29 the Health Service: 1. rightly submits that the test is objective; 2. submits that the appeal was obviously hopeless. [19] Dr Algahamdi applies for costs against the Health Service. She represented herself throughout the reopening application and the appeal. She has not incurred legal expenses and therefore is not entitled to recover any costs.30 [20] Dr Algahamdi submits that the appeal was not brought in circumstances where the discretion to award costs against her under s 545(2) of the IR Act 2016 arises, although she does not explain why. [21] Dr Algahamdi’s only real submission on the costs issue is: “2. The respondent is fully aware that my case with Qld health has two parts; unfair dismissal and unpaid wages. The latter is still to be fully heard and it will include going through the full process as if the case is reopened, yet respondent ‘vexatiously’ sought dismissal to reopen the case in order to avoid disclosure of evidence that proves unfair dismissal in order to avoid liability by abusing the process. This disclosure will take place in full during unpaid wages hearing. Therefore, the respondent’s conduct met the test of vexatious submission to dismiss the case.” 27 Industrial Relations Act 2016, s 545(2)(a)(i). 28 That is what was found in the primary judgment; Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 at [48] and [49]. 29 Industrial Relations Act 2016, s 545(2)(a)(ii). 30 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333. -- 9 of 11 -- 10 [22] During the hearing of the appeal, it became apparent that Dr Algahamdi was pursuing the Health Service for unpaid wages in proceedings separate to the reopening application. The unfair dismissal case is, she submits, inextricably bound up with the unpaid wages claim such that it was inappropriate for the QIRC not to reopen the 2016 decision and allow the unfair dismissal case to proceed. [23] That argument has little, if anything, to do with an appeal from a discretionary judgment which the 2021 decision clearly was. Dr Algahamdi had to show an error of law in the 2021 decision. [24] Dr Algahamdi’s written submissions on the appeal did not identify an error of law and she did not identify one during the hearing of the appeal. There was no reasonable cause to bring the appeal. Dr Algahamdi may not have realised that the appeal had no reasonable prospects of success but that should have been reasonably apparent to her. As previously observed, the test is an objective one. [25] In my view, the discretion to award costs against Dr Algahamdi has arisen as the jurisdictional facts identified by both s 545(2)(a)(i) and (ii) have been established. [26] The discretion having arisen, I would exercise it by awarding costs against Dr Algahamdi in favour of the Health Service. The reopening application was an attempt to reagitate a dispute which had been effectively determined four and a half years previously by the 2016 decision. The 2016 decision was made because it was evident that Dr Algahamdi had abandoned her unfair dismissal claim. The 2021 decision was a completely conventional exercise of discretion and no hint of error has been identified. [27] It was unreasonable for Dr Algahamdi to appeal the 2021 decision and she should pay the Health Service’s costs. [28] Dr Algahamdi did not submit that if she was to pay the costs, it was not appropriate they be assessed on the scale for Supreme and District Courts. That is appropriate in my view. -- 10 of 11 -- 11 Orders [29] The orders are: 1. That the appellant pay the respondent’s costs of and incidental to the appeal, on the standard basis, to be calculated on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999. 2. The costs be in an amount agreed, or if the parties fail to reach agreement by 1 July 2022: (a) the respondent is to file in the Industrial Registry and serve on the applicant its schedule of costs claimed by 15 July 2022; (b) the appellant is to file and serve any objection to the costs claimed within 21 days of being served with the schedule of the costs claimed; and (c) costs are to be assessed by the Industrial Registrar following an application for costs assessment being made by the respondent and the Registrar may have regard to the Uniform Civil Procedure Rules 1999, Chapter 17A when assessing the costs. 3. The appellant is to pay the respondent’s costs of any assessment. 4. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment. -- 11 of 11 --