Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) (No 2) [2020] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND CITATION: Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) (No 2) [2020] ICQ 005 PARTIES: BHRAM DEO (appellant) v STATE OF QUEENSLAND (DEPARTMENT OF HEALTH - DARLING DOWNS HOSPITAL AND HEALTH SERVICE) (respondent) FILE NO/S: C/2019/18 PROCEEDING: Appeal DELIVERED ON: 23 April 2020 HEARING DATE: Written submissions filed on 7 April 2020 and 23 April 2020 MEMBER: Martin J, President ORDER/S: 1. The appellant pay the respondent’s costs of and incidental to the application to appeal on the standard basis on the Supreme Court scale. 2. If the parties do not agree upon the costs within 14 days of this decision, then: (a) the respondent is to file in the Industrial Registry and serve on the appellant its schedule of the costs claimed within 14 days of the date of this decision, (b) the appellant is to file and serve any objection to those costs within 14 days of being served with the schedule of costs, and (c) the Industrial Registrar is to assess the costs upon receipt of the claim and any objection. 3. The costs to be paid by the appellant, whether or agreed or assessed, are to be paid within 30 days of agreement or assessment. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant’s application for an extension of time in which to appeal was refused on the basis that an appeal would not enjoy sufficient prospects of success to warrant the extension of time – where the respondent seeks costs on the basis that the application to appeal was made either vexatiously or without reasonable cause – whether the appellant ought to pay the respondent’s costs of and incidental to the application to appeal -- 1 of 3 -- 2 Industrial Relations Act 2016, s 545 CASES: Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) [2020] ICQ 004 Gambaro v Workers’ Compensation Regulator [2017] ICQ 005, applied Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 035, applied APPEARANCES: Appellant in person SA Mackie instructed by CL McPherson, Crown Solicitor for the respondent [1] The parties have filed submissions with respect to the issue of costs in this matter. The original decision was given on 24 March 2020.1 In that decision, an application for an extension of time in which to appeal was refused on the basis that an appeal would enjoy insufficient prospects of success to warrant the extension of time. [2] The respondent seeks its costs. [3] Section 545 of the Industrial Relations Act 2016 provides: “545 General power to award costs (1) A person must bear the person’s own costs in relation to a proceeding before the court or commission. (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 …” [4] The respondent submits that the findings made about the nature of the appeal are sufficient to demonstrate that the application to appeal was made either vexatiously or without reasonable cause. The principles to be applied in applications such as this 1 Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) [2020] ICQ 004. -- 2 of 3 -- 3 have been considered in other cases such as Wanninayake v State of Queensland (Department of Natural Resources and Mines)2 and Gambaro v Workers’ Compensation Regulator.3 [5] The respondent submits that I should take into account a number of matters. Some of those matters relate to personal issues and others confirm his continued misunderstanding of the factual circumstances concerning the deed of settlement. [6] I am satisfied that this was a case in which the application to appeal was objectively recognisable as one which could not succeed at the time that it was made. I am satisfied it is appropriate that an order for costs be made. Order 1. The appellant pay the respondent’s costs of and incidental to the application to appeal on the standard basis on the Supreme Court scale. 2. If the parties do not agree upon the costs within 14 days of this decision, then: (a) the respondent is to file in the Industrial Registry and serve on the appellant its schedule of the costs claimed within 14 days of the date of this decision, (b) the appellant is to file and serve any objection to those costs within 14 days of being served with the schedule of costs, and (c) the Industrial Registrar is to assess the costs upon receipt of the claim and any objection. 3. The costs to be paid by the appellant, whether or agreed or assessed, are to be paid within 30 days of agreement or assessment. 2 [2015] ICQ 035 at [12]-[16]. 3 [2017] ICQ 005 at [54]-[55]. -- 3 of 3 --