Braun v Metro North Hospital and Health Service & Ors [2024] QIRC 114

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Braun v Metro North Hospital and Health Service & Ors [2024] QIRC 114 PARTIES: Braun, William (Applicant) v Metro North Hospital and Health Service (First Respondent) AND Finch, Robert (Second Respondent) AND Hopkins, George (Third Respondent) AND O'Rourke, Nicholas (Fourth Respondent) AND Hatzifotis, Michael (Fifth Respondent) CASE NO: AD/2020/111 & GP/2021/24 PROCEEDING: Application for costs DELIVERED ON: 13 May 2024 MEMBER: McLennan IC HEARD AT: On the papers -- 1 of 34 -- 2 ORDERS: 1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matters AD/2020/111 and GP/2021/24 are discontinued. 2. Pursuant to s 548 of the Industrial Relations Act 2016 (Qld) the representative of the Applicant in matter AD/2020/111, Harmers Workplace Lawyers, must pay the Respondents' costs in the amount of $12,699.50 within 28 days of this order. 3. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the Applicant in matter GP/2021/24, Harmers Workplace Lawyers, must pay the Respondents' costs, as agreed or assessed. CATCHWORDS: INDUSTRIAL LAW – GENERAL PROTECTIONS – ANTI-DISCRIMINATION – APPLICATION FOR COSTS – whether an order for costs should be made against the applicant's representative – where the applicant requested to discontinue proceedings – where the applicant commenced proceedings in the Federal Court arising from the same substratum of facts against the respondents – where the applicant filed an application in the Federal Court seeking that the proceedings be joined in the Federal Court – whether it is appropriate to accept the applicant's request for discontinuance on the term that the respondents' costs be paid pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 – consideration of unreasonable acts or omissions LEGISLATION AND INSTRUMENTS: Fair Work Act 2009 (Cth) s 570 Industrial Relations (Tribunals) Rules 2011 (Qld) r 68, r 70 -- 2 of 34 -- 3 Industrial Relations Act 2016 (Qld) s 451, s 530, s 545, s 548, sch 2 CASES: Allan v State of Queensland [2018] QIRC 036 BRD21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 Dorman v State of Queensland (Queensland Health) [2023] QIRC 335 Du Preez v Chelden (No. 2) [2020] ICQ 015 Jordaan v Mount Isa City Council [2021] QIRC 310 PIA Mortgage Services Pty Ltd v R (No 2) (2020) FCAFC 53 Simon Lewis v SGA (1994) Pty Ltd [2020] FWC 2229 Reasons for Decision Background [1] Dr William Braun (the Applicant) alleged he had been discriminated against by Dr Robert Finch and Metro North Hospital and Health Service in a complaint to the Queensland Human Rights Commission (QHRC) lodged on 14 February 2020.1 The parties were unable to resolve the matter there, so the QHRC made the referral to the Queensland Industrial Relations Commission (QIRC) on 8 December 2020.2 That is AD/2020/111. [2] Dr Braun also alleged breaches of the General Protections provisions, in a second claim filed in the QIRC on 9 September 2021.3 The Respondents to that matter were initially Metro North Hospital and Health Service (First Respondent) and Dr Robert Finch (Second Respondent). That is GP/2021/24. Further Respondents were later added to that claim: Dr George Hopkins (Third Respondent); Dr Nicholas O'Rourke (Fourth Respondent); and Dr Michael Hatzifotis (Fifth Respondent). 1 Applicant's combined reply submissions on costs filed 31 May 2023, [2]. 2 Ibid. 3 Ibid [3]. -- 3 of 34 -- 4 [3] Dr Braun also filed proceedings against the Respondents in the Federal Court on 9 September 2021.4 He brought an interlocutory application on 18 July 2022, seeking leave for the allegations that had been previously filed in the QIRC to be heard in the Federal Court. On 7 March 2023, Justice Rangiah determined "the entirety of the matter" would be heard in the Federal Court. [4] Dr Braun then sought to discontinue matters AD/2020/111 and GP/2021/24 in the QIRC. The Respondents objected to that course, except in circumstances where its costs were paid. [5] In this application, the Respondents have asked the QIRC to make an order for costs against the Applicant's solicitors, Harmers Workplace Lawyers (the Applicant's Representative; the Representative) - not against Dr Braun himself. That is because (emphasis added): … upon making the decision to apply to join all the matters arising from the same substratum of facts in the Federal Court, the Applicant, via his representatives, took unreasonable steps to pursue the QIRC claims which have caused the Respondents to unnecessary costs in the matter… … … the Applicant unreasonably contested the Respondents' application to stay the QIRC proceedings pending determination of the Federal Court Interlocutory Application and continued to insist that orders be made concerning broad and varied categories of disclosure in relation to the QIRC proceedings. Further, upon the matters being listed for directions hearing on 15 August 2022, the Applicant only provided by email two potential sets of draft directions some six minutes before the directions hearing was listed to commence (at 9:30 am on 15 August 2022) and continued to seek in the alternative orders which required the parties to put on affidavit material and submissions in relation to the disclosure applications filed.5 [6] I directed the parties file written submissions with respect to the question of costs. The summary of relevant facts set out below includes specific attention to matters pertaining to the Commission's consideration of costs orders against representatives. [7] Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) (IR Act), this matter was decided on the papers. Chronology [8] A chronology of the matter is summarised as follows: 14 February 2020 Dr Braun complained to the QHRC, in which he alleged he had been subject of discrimination by Dr Finch and MNHHS.6 4 Affidavit of Ms G. Matthews affirmed 10 May 2023, [3]. 5 Respondents' combined submissions on costs in AD/2020/111 and GP/2021/24 filed 7 June 2023, [3]-[5]. 6 Applicant's combined reply submissions on costs filed 31 May 2023, [2]. -- 4 of 34 -- 5 8 December 2020 QHRC referred Dr Braun's discrimination complaint to the QIRC. That became matter AD/2020/111.7 9 September 2021 Dr Braun alleged breaches of the general protections provisions of the IR Act, in a complaint to the QIRC. That became matter GP/2021/24.8 9 September 2021 Dr Braun brought his common law claims (against the Respondents in the QIRC proceedings) to the Federal Court.9 18 July 2022 The Applicant's Representative filed the Interlocutory Application in the Federal Court proceedings, seeking to include the allegations subject of AD/2020/111 and GP/2021/24.10 18 July 2022 The Respondents' solicitor filed applications in AD/2020/111 and GP/2021/24 seeking orders that: a. those matters be stayed or not further proceed pending the hearing and determination of the FCA Proceedings; or, in the alternative b. those matters be stayed or not further proceed pending the hearing and determination of the Interlocutory Application.11 20 July 2022 The Industrial Registry emailed the parties to AD/2020/111 and GP/2021/24, to ask if the Applicant agreed or disagreed with the orders sought by the Respondents.12 25 July 2022 The Applicant's Representative advised the Industrial Registry that the Applicant disagreed with the orders sought by the Respondents and opposed any permanent stay of AD/2020/111 and GP/2021/24. The Applicant's Representative advised that: a. The Applicant proposes that instead of the matters being stayed or not proceeding further pending the hearing and determination of the Interlocutory Application, the matters be adjourned to a date to be fixed pending the outcome of the Interlocutory Application; and b. Despite the above, the Applicant notes his interest in the QIRC handing down its decisions regarding his applications seeking further disclosure 7 Ibid. 8 Ibid [3]. 9 Ibid [4]. 10 Affidavit of Ms G. Matthews affirmed 10 May 2023, [5]. 11 Ibid [6]. 12 Ibid [7]. -- 5 of 34 -- 6 in GP/2021/24 and AD/2020/111 (filed by the Applicant in the QIRC on 20 April 2022).13 26 July 2022 The Applicant's Representative sent a further email to the Industrial Registry clarifying that the Applicant seeks the Commission's decision on his applications for further disclosure filed on 20 April 2022.14 26 July 2022 The Respondents' solicitor wrote to the Industrial Registry stating: Given the applications filed on 18 July 2022 by the Respondents in the substantive matters are opposed by the Applicant, the Respondents seek a hearing of the applications filed on 18 July 2022 before any further steps are taken in the matters, so that the Commission can hear from each party about the applications and the way forward.15 15 August 2022 The QIRC listed matters AD/2020/111 and GP/2021/24 for Mention.16 15 August 2022 At the Mention, I issued Consent Orders, including that pending the determination of the Interlocutory Application, AD/2020/111 and GP/2021/24 were adjourned on a date to be fixed.17 7 March 2023 Justice Rangiah decided the Interlocutory Application, granting leave for Dr Braun to amend the Federal Court proceedings to include the allegations subject of AD/2020/111 and GP/2021/24.18 21 March 2023 The Applicant's Representative advised that the claims currently before the QIRC would now be heard by the Federal Court, so proposed that matters AD/2020/111 and GP/2021/24 be discontinued, after the Applicant had filed a Further Amended Statement of Claim in the Federal proceedings.19 3 April 2023 The Applicant's Representative filed and served two Form 27 Request to discontinue proceedings, in matters AD/2020/111 and GP/2021/24. 13 Ibid [8]. 14 Ibid [9]. 15 Ibid [10]. 16 Ibid [11]. 17 Ibid [12]. 18 Ibid [13]. 19 Email from Mr J. El-Jalkh, Harmers Workplace Lawyers to the Industrial Registry, dated 21 March 2023. -- 6 of 34 -- 7 17 April 2023 The Respondents' solicitor objected to the Applicant's request to discontinue those proceedings, as they first wished to be heard on costs thrown away, as follows:20 … the Respondents object to the Applicant's request to discontinue the proceedings, pursuant to rule 68(3) of the Industrial Relations (Tribunals) Rules 2011 (IR Rules). The Respondents object on the basis that they wish to be heard on why the Commission should, in dealing with the Applicant's written request to discontinue per r 68(6) of the IR Rules, consider it appropriate to discontinue the proceedings on a term that costs thrown away in the proceedings as agreed or assessed be paid to the Respondents pursuant to s 545(2)(a) or (b) of the Industrial Relations Act 2016.21 19 April 2023 I issued Directions Orders in matter AD/2020/111 to hear the parties on: Whether (or not) the Commission should allow the discontinuance of matter AD/2020/111 on the term that the Applicant or Applicant's representative pay the Respondents' costs "as agreed or assessed"?22 19 April 2023 I also issued Directions Orders in matter GP/2021/24 to hear the parties on: Whether (or not) the Commission should allow the discontinuance of matter GP/2021/24 on the term that the Applicant or Applicant's representative pay the Respondents' costs "as agreed or assessed"?23 10 May 2023 The Respondents filed submissions on costs, in matter AD/2020/111. 10 May 2023 The Respondents also filed submissions on costs, in matter GP/2021/24. 31 May 2023 The Applicant filed submissions on costs, in matters AD/2020/11 and GP/2021/24. 7 June 2023 The Respondents filed submissions on costs, in matters AD/2020/111 and GP/2021/24. 20 Email from Ms G. Matthews, Crown Law to the Industrial Registry, dated 17 April 2023. 21 Ibid. 22 Directions Order issued 19 April 2023, [1]. 23 Ibid. -- 7 of 34 -- 8 15 March 2024 Ms Matthews filed an affidavit setting out the Respondents' schedule of costs, including the total amount claimed for recovery as $12,699.50. Questions to be decided [9] There are three questions to be decided: Whether (or not) an order for costs should be made? • In AD/2020/111, that is pursuant to s 548 of the IR Act. • In GP/2021/24, that is pursuant to s 545(2) of the IR Act. Whether (or not) matters AD/2020/111 and GP/2021/24 will be discontinued on the term that the Respondents' costs be paid, pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (Tribunal Rules)? If so, what is the amount of costs to be paid by Harmers Workplace Lawyers to the Respondents? Summary of Findings [10] For the reasons that follow, I find that: An order for costs is warranted. Matters AD/2020/111 and GP/2021/24 are discontinued, on the term that the Applicant's Representative, Harmers Workplace Lawyers, must pay the Respondent's costs. Matter AD/2020/111 is discontinued on the term that the Applicant's Representative, Harmers Workplace Lawyers, must pay the Respondents' costs in the amount of $12,699.50. That amount is to be paid within 28 days. Matter GP/2021/24 is discontinued on the term that the Applicant's Representative, Harmers Workplace Lawyers, must pay the Respondents' costs, as agreed or assessed. The power to award costs [11] The power to award costs in a proceeding brought under the Anti-Discrimination Act 1991 (Qld) (AD Act) is contained in s 548 of the IR Act: 548 Costs provisions (1) The provisions for costs in schedule 2 apply to a proceeding— -- 8 of 34 -- 9 (a) heard by the commission under the Anti-Discrimination Act 1991; or (b) for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a). (2) If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency. [12] Schedule 2 of the IR Act states (emphasis added): 1 Definitions for schedule In this schedule— commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti- Discrimination Act 1991, includes the court. proceeding means a proceeding mentioned in section 548. 2 Each party usually bears own costs Other than as provided under this schedule, each party to the proceeding must bear the party's own costs for the proceeding. 3 Limitation for children (1) The commission must not award costs against a child. (2) Subsection (1) does not prevent the commission making an order under section 5 of this schedule against a representative of a child. 4 Costs against party in 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— (a) whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; (b) the nature and complexity of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (e) the financial circumstances of the parties to the proceeding; (f) anything else the commission considers relevant. 5 Costs against representative in interests of justice (1) If the commission considers a representative of a party to the proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in section 4(2)(a) of this schedule, the commission may make a costs order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs. -- 9 of 34 -- 10 (2) Before making an order under subsection (1), the commission must give the representative a reasonable opportunity to be heard in relation to making the order. 6 Costs against intervening parties (1) If the Attorney-General intervenes in the proceeding for the State, the commission may make a costs order requiring the State to pay a stated amount to a party to the proceeding as compensation for all or a part of the costs reasonably incurred by the party as a result of the intervention. (2) If the commission gives leave to a person to intervene in the proceeding, the commission may make a costs order requiring the person to pay a stated amount to a party to the proceeding as compensation for all or a part of the costs reasonably incurred by the party as a result of the intervention. 7 Other power to award costs The rules may authorise the commission to award costs in other circumstances, including, for example, the payment of costs in the proceeding if an offer to settle the complaint or other matter that is the subject of the proceeding has been made but not accepted. 8 Costs awarded at any stage If the commission may award costs under a provision of this schedule, the costs may be awarded at any stage of the proceeding or after the proceeding has ended. 9 Fixing or assessing costs (1) If the commission makes a costs order under a provision of this schedule, the commission must fix the costs if possible. (2) If it is not possible to fix the costs having regard to the nature of the proceeding, the commission may make an order requiring the costs to be assessed under the rules. (3) The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court. 10 Staying proceeding (1) Subsection (2) applies if the commission makes a costs order under a provision of this schedule before the proceeding ends. (2) The commission may make an order requiring the costs to be paid before it continues with the proceeding. (3) Subsection (4) applies if a party has been ordered to pay the costs of another party under this schedule, and the party, before paying the costs, starts another proceeding before the commission against the other party. (4) The commission may make an order staying the other proceeding until the costs are paid. 11 Security (1) This section applies if, under a provision of this schedule, the commission may award a party's costs for the proceeding. (2) On the application of a party (applicant party) to the proceeding against whom a claim is made or an outcome or decision sought in the proceeding, the commission may make an order— -- 10 of 34 -- 11 (a) requiring another party to the proceeding to give security for the applicant party's costs within the period stated in the order; and (b) staying the proceeding, or the part of the proceeding against the applicant party, until the security is given. (3) If the security is not given within the period stated in the order, the commission may make an order dismissing the proceeding, or the part of the proceeding against the applicant party. (4) In deciding whether to make an order under subsection (1), the commission may have regard to any of the following matters— (a) the financial circumstances of the parties to the proceeding; (b) the prospects of success or merits of the proceeding or the part of the proceeding against the applicant party; (c) the genuineness of the proceeding or the part of the proceeding against the applicant party; (d) anything else the commission considers relevant. [13] The power to award costs in a general protections proceeding pursuant to the IR Act is contained at s 545 (emphasis added): 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. -- 11 of 34 -- 12 [14] Further, the Tribunal Rules provide that (emphasis added): 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 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. … 68 Written request for discontinuance (1) An applicant for a proceeding may ask to be allowed to discontinue the proceeding by filing a written request in the approved form. (2) When filing the request, the applicant must serve a copy of the request on each of the other parties to the proceeding. (3) A party may object to the discontinuance by notice to the registrar within 14 days after being served with the request to discontinue. (4) If no party objects within the 14 days, the court, commission or registrar may allow the proceeding to be discontinued. (5) If a proceeding is allowed to be discontinued, the court, commission or registrar must note the file to that effect. (6) If a party objects to the discontinuance under subrule (3), the court, commission or registrar may allow or disallow the request for discontinuance on the terms the court, commission or registrar considers appropriate. [15] The usual course for proceedings of this type is that each party bears their own costs. [16] However, the QIRC may make a costs order against a party's representative in a matter brought under the AD Act if it is "in the interests of justice" to do so - in circumstances where the Commission considers a representative is responsible for "unnecessarily disadvantaging another party to the proceeding".24 24 Industrial Relations Act 2016 (Qld) sch 2, cl 5(1). -- 12 of 34 -- 13 [17] The QIRC may also exercise a general power to award costs if an application is made in time by a party to the proceedings. In this case, such an application was made by the Respondents against the Applicant's representative "because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding."25 [18] That is the subject of this decision. Respondents seek a costs order against the Applicant's Representative [19] The Respondents seek that orders for costs thrown away be made against the Applicant's Representative because his "unreasonable acts or omissions"26 unnecessarily disadvantaged the Respondents.27 [20] The Respondents asked the QIRC to only accept the Applicant's discontinuance of matters AD/2020/111 and GP/2021/24 "on the term that the Respondents' costs be paid, pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 ..."28 [21] With respect to AD/2020/111, the Respondents submitted that "it is in the interests of justice" that they be paid "a stated amount representing costs thrown away" under s 548 of the IR Act.29 Specifically: The Respondents apply for an order requiring the representative, Harmers Workplace Lawyers (Representative) to pay a stated amount to the Respondents as compensation for the unnecessary costs (Costs Order) pursuant to section 548 and schedule 2 of the IR Act.30 [22] With respect to GP/2021/24, the Respondents submitted that they should be paid their "costs thrown away, as agreed or assessed" under s 545(2)(b) of the IR Act.31 Specifically: … the Respondents apply for an order that the Respondents' costs thrown away in the proceedings, as agreed or assessed, be paid (Costs Order) by Harmers Workplace Lawyers (Representative) pursuant to s 545(2)(b) of the IR Act.32 Relevant principles [23] The Applicant submitted that both the IR Act and Fair Work Act 2009 (Cth) (FW Act) "statutes establish a no-costs jurisdiction", though that may be disturbed where "a representative may be liable for such costs where the matter is impacted by their 25 Ibid s 545(2)(b)(ii). 26 Respondent's submissions on costs in AD/2020/111 and GP/2021/24 filed 10 May 2023, [1]. 27 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [1], [4]. 28 Respondent's submissions on costs in AD/2020/111 and GP/2021/24 filed 10 May 2023, [2]. 29 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [1]. 30 Ibid [5]. 31 Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [1], [26]. 32 Ibid [4]. -- 13 of 34 -- 14 unreasonable act or omission in connection with the conduct of the continuation of the proceeding."33 [24] The Applicant asserted that "costs will rarely be awarded unless justified by exceptional circumstances" because the statutes seek "to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims, particularly where there is a well-resourced corporate employer, such as the MNHHS (with revenue in the hundreds of millions of dollars), and an individual employee. Accordingly, the touchstone for the exercise of this power, under both s 570 of the FW Act and s 545 IR Act, is unreasonableness."34 [25] With reference to PIA Mortgage Services Pty Ltd,35 the Applicant submitted that "The test for determining reasonableness is objective. It is a question of impression and degree and is to be assessed by reference to the particular circumstances of the case in question …"36 [26] The Applicant stated (citations omitted): The fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness … The standard of unreasonableness that must be adopted is higher than mere imprudence, or acting unguided by good sense or sound judgement … or merely negligence or inefficiency… The Applicant has not conducted the litigation negligently or inefficiently, made belated concessions or adopted a misguided approach.37 [27] The Applicant submitted the Commission's decision in Jordaan v Mount Isa City Council38 was authority for the proposition that s 545(2)(b) of the IR Act required that "the claim was hopeless or bound to fail."39 The Applicant's position is that "This is clearly distinguishable from the present case, where the Applicant's claims have now been successfully brought before the Federal Court."40 [28] The Respondents rejected that argument, on the grounds that the application subject of the Jordaan v Mount Isa City Council41 decision alleged: … that the General Protections application was commenced vexatiously or without reasonable cause (Section 545(2)(a)(i)) and it would have been reasonably apparent to the applicant in that case that the application had no reasonable prospects of success (section 545(2)(a)(ii)). Therefore, the 33 Applicant's combined reply submissions on costs filed 31 May 2023, [18]. 34 Ibid [20]. 35 (2020) FCAFC 53, [15]. 36 Applicant's combined reply submissions on costs filed 31 May 2023, [22]. 37 Ibid [23]. 38 [2021] QIRC 310. 39 Respondents' combined reply submissions on costs in AD/2020/111 and GP/2021/24 filed 7 June 2023, [7]. 40 Applicant's combined reply submissions on costs filed 31 May 2023, [18]. 41 [2021] QIRC 310. -- 14 of 34 -- 15 respondent in that case was relying on s 545(2)(b)(i) in order to mount a costs application. This is in contrast to the application before the Commission which is brought on the basis of section 545(2)(b)(ii) of the IR Act.42 [29] The Respondents instead submitted that the relevant principles to be applied to a consideration of s 545(2)(b)(ii) of the IR Act are summarised in BRD21 v Australian Broadcasting Corporation (No 2):43 [26] The following principles emerge from the authorities with respect to the application of s 570(2)(b) of the FW Act: (a) the occasions on which costs will be awarded under s 570 of the FW Act are likely to be exceptional: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 (Mutch) at [8] (Bromberg J); (b) the touchstone for the exercise of the power is unreasonableness, not negligence or inefficiency: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 3) [2017] FCA 810 (Grouped Property Services) at [26] (Katzmann J); Tucker v State of Victoria [No 2] [2021] VSCA 182 (Tucker) at [32(h)] (Kyrou, McLeish and Sifris JJA); (c) the fact that a party has conducted litigation inefficiently, made belated concessions, or adopted a misguided approach may be relevant to, but will not be conclusive of, the question of unreasonableness: Mutch at [8] (Bromberg J) citing Construction Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143 (Clarke) at [29] (Tamberlin, Gyles and Gilmour JJ) and Hutchinson v Comcare (No 2) [2017] FCA 370 (Comcare (No 2)) at [8] (Bromberg J); Tucker at [32(h)]; (d) the term "unreasonableness" is not conducive to precise definition, rather it is to be understood as controlling the extent of the limitation on the making of a costs order pursuant to s 570 of the FW Act and it takes much of its meaning from the underlying reason for that limitation: Mutch at [7]; (e) unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: Tucker at [32(g)] citing PIA Mortgage Services Pty Ltd v King [No 2] [2020] FCAFC 53 at [15] (Rangiah, Charlesworth and Snaden JJ); (f) it is well settled that the limitation imposed by s 570 of the FW Act seeks to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims: Mutch at [7] citing Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ); Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J); Comcare (No 2) at [8] (Bromberg J); (g) if the power to make an order pursuant to s 570 of the FW Act is enlivened then in determining whether to exercise its discretion to make an order, the Court is bound by s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to exercise that discretion in the way that best promotes the overarching purpose of any statutory 42 Respondents' combined reply submissions on costs in AD/2020/111 and GP/2021/24 filed 7 June 2023, [8]- [9]. 43 [2021] FCA 1347, [26]. -- 15 of 34 -- 16 provision on a matter of practice and procedure referred to in s 37M of the FCA Act: Grouped Property Services at [26] (Katzmann J). [30] As Industrial Commissioner Dwyer explained in Dorman v State of Queensland (Queensland Health) (emphasis added):44 [70] Unless an application is made for costs, parties must bear their own costs in proceedings before the Industrial Court or the Commission. 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. … [72] It is plainly within the Commission's power to make orders for costs against a party to the proceeding or a representative of a party to the proceeding. Respondents' submissions on costs [31] The Respondents seek an order for costs thrown away against Dr Braun's solicitor "on the basis that the Representative caused the costs to be incurred because of unreasonable acts or omissions of the Representative in connection with the conduct and/or continuation of the proceeding and this unnecessarily disadvantaged the Respondents in the proceedings by causing them to incur costs in defending the proceeding which is ultimately to be discontinued."45 [32] The affidavits of Ms Geraldine Mathews, affirmed on 15 July 2022 and 10 May 2023, set out the chronology of events up to the delivery of Justice Rangiah's judgement on 7 March 2023,46 permitting Dr Braun to amend the Federal Court proceedings to allege the matters subject of AD/2020/111 and GP/2021/24. [33] The Respondents' position is that they have been "put to significant cost" defending the QIRC matters - and it was Dr Braun's and his Representative's decision "to continue to actively pursue" those matters "for 10 months after the FCA Proceedings were filed, before seeking the transfer of the proceedings before the Commission to the Federal Court …" [34] The Respondents state that "it is open to infer" that Dr Braun's Representative "consciously pursued the Applicant's claim where from at least 7 July 2022 (if not from the date the Applicant commenced proceedings in the Federal Court on 9 September 44 [2023] QIRC 335, [70], [72]. 45 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [9]. 46 the Interlocutory Application. -- 16 of 34 -- 17 2021), they did not intend to pursue the proceedings to hearing in the Commission but rather to transfer the proceedings to the Federal Court."47 [35] The Respondents also submit that Dr Braun was represented by "a firm of legal practitioners experienced in the workplace law and industrial relations area and has been on the record as acting for the Applicant with respect to (AD/2020/111) since 31 March 2021".48 Applicant's submissions on costs [36] Dr Braun provided the following background, as to why he filed matters in two jurisdictions: The Applicant, a surgeon, was an employee of the MNHHS (as a Visiting Medical Officer) and a non-employee in the private sector. Further, the Applicant also saw private patients (ie conducted private practice) at the MNHHS outside of his capacity as an employee. The Applicant needed to pursue his claims for breaches of the Industrial Relations Act 2016 (Qld) ("IR Act") in the QIRC because the MNHHS is not a national system employer, meaning he was precluded from commencing proceedings against them in the federal jurisdiction. Conversely, the Applicant needed to pursue his claims for breaches of the Fair Work Act 2009 (Cth) ("FW Act") against a private sector institution regulated by that Act, being St Vincent's Private Hospital Northside Ltd, in the Federal Court of Australia, as well as claims related to his private practice at the MNHHS. The Applicant was also naturally required to bring his common law claims (against all of the Respondents to the QIRC Proceedings) in the Federal Court.49 [37] The Applicant submitted that: From 9 September 2021, the Applicant pursued both the QIRC Proceedings and the FCA Proceedings with the intention of pursuing each matter to completion in its respective jurisdiction.50 After progressing both the QIRC Proceedings and the FCA Proceedings, the Applicant's legal representative, Harmers Workplace Lawyers ("Representative"), started conducting research into effective measures to join these proceedings, coming to a conclusion in mid-2022. This research took some time, as the argument was extremely complex and (as proved to be the case) the Representative expected vehement objection from the Respondents. It is incongruous that, having vehemently opposed the application in the Federal Court and having lost that argument, the Respondents now seek to rely on that outcome for this application.51 [38] On 18 July 2022, Dr Braun brought an Interlocutory Application in the Federal Court, in order to amend his claim to add those matters subject of the QIRC Proceedings as: 47 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [12]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [14]. 48 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13a]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15a]. 49 Applicant's combined reply submissions on costs filed 31 May 2023, [4]. 50 Ibid [5]. 51 Ibid [6]. -- 17 of 34 -- 18 Effectively, this would see the QIRC Proceedings and FCA Proceedings joined, with the Applicant to discontinue the QIRC Proceedings if he was successfully able to amend the Originating Application and Further Amended Statement of Claim to this effect in the FCA Proceedings.52 [39] On 7 March 2023, Justice Rangiah granted leave for Dr Braun to amend the FCA Proceedings to include the matters subject of the QIRC Proceedings. The Applicant submitted that "It is significant that, in the Rangiah J decision, his Honour did not find any disentitling delay on the part of the Applicant in bringing his Interlocutory Application."53 [40] On 3 April 2023, Dr Braun filed two Form 27 – Requests to discontinue proceedings for QIRC matters AD/2020/111 and GP/2021/24. The Applicant submitted "Discontinuance was the only proper course following the Rangiah J Decision."54 [41] On 14 April 2023, the Respondents objected to the Applicant's discontinuance requests "on the basis that the discontinuance should only occur on a term that the Representative be ordered to pay costs thrown away in the proceedings."55 [42] Fundamentally, the Applicant disputes that any costs have been thrown away at all because "… all pleading related steps, such as the various requests for further and better particulars in the QIRC Proceedings, the respective responses and amendment to the QIRC claims have found their way into the Federal Proceedings."56 Consideration of alleged "unreasonable acts or omissions" [43] The Applicant's submissions summarise the list of "unreasonable acts or omissions" alleged by the Respondents, as follows: a. naming additional Respondents after commencing matter GP/2021/24, requiring an Amended Response ("Individual Respondents Act"); b. pursuing the Applicant's claim in two jurisdictions (without seeking a stay or adjournment in the QIRC) before joining these matters in the FCA ("Dual Jurisdictions Act"); c. applying for disclosure in the QIRC Proceedings and seeking that this application be determined prior to these being joined in the FCA ("Disclosure Application Act"); and d. opposing the Respondents' stay application following the Interlocutory Application and continuing to seek the determination of the disclosure application in the QIRC Proceedings ("Stay Opposition Act"), together, the "Alleged Unreasonable Acts".57 52 Ibid [7]. 53 Ibid [8]. 54 Ibid [9]. 55 Ibid [10]. 56 Ibid [15]. 57 Ibid [13]. -- 18 of 34 -- 19 a) Individual Respondents Act Respondents' submission [44] Dr Braun, through his solicitor, filed an amended General Protections application, naming three additional Respondents, on 20 October 2021. This required the Respondents to incur further costs preparing an amended response to the amended application, that was filed on 28 October 2021.58 Applicant's submission [45] The act of subsequently "adding individual respondents (all of whom remain respondents in the Federal Court Proceedings) necessitating amended pleadings (which have been used in the Federal Court Proceedings) cannot be construed as "exceptional circumstances" in the course of litigated proceedings including various, complex causes of action. Such circumstances are exceedingly common and do not enliven a justifiable claim for costs from the Respondents."59 Consideration [46] In these types of matters, leave to be legally represented at the Commission must first be sought pursuant to s 530 of the IR Act. The Commission may give leave for a party to be represented by a lawyer if "it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter". Despite such leave being granted, the anticipated enhancement to "efficiency" failed to materialise. [47] The Applicant's general protections matter filed in the Commission originally nominated the same two Respondents (MNHHS and Dr Finch) as the discrimination complaint that was earlier filed with the QHRC on 14 February 2020. [48] Dr Braun's solicitors had been acting for him for many months prior to the general protections matter being filed in the Commission. That is sufficient time for the representative to take full instructions from the Applicant about all relevant particulars of the complaint - including the person(s) complained about. That apparently did not occur because leave was later sought for the Applicant to amend his general protections application, to add a further three doctors to the list of Respondents. [49] That inefficiency meant that the Respondents' had need to amend their response to the general protections application. That was extra time and cost that the Respondents would 58 Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15c]. 59 Applicant's combined reply submissions on costs filed 31 May 2023, [24]. -- 19 of 34 -- 20 not have incurred if the Applicant's case had been fully particularised for their response in the first place. [50] Fundamentally, Respondents are entitled to know the case they must answer. In light of the various inefficiencies that have beleaguered this particular matter, I do consider this warrants characterisation as "an unreasonable omission … of the representative." b) Dual Jurisdictions Act Respondents' submission [51] The decision to commence both the related proceeding GP/2021/24 - and proceedings in the Federal Court arising from the same substratum of facts against the Respondents (FCA Proceedings) - one business day prior to the conference in matter AD/2020/111 set down for 13 September 2021 (even though the date for conference was listed a month earlier).60 "At that time the Respondents had already incurred the costs of preparation for the conference on 13 September 2021, and the commencement of GP/2021/24 necessitated a further listing for the matters to be conferenced together on 1 November 2021."61 [52] No reasonable excuse was provided for the delay in commencing GP/2021/24 until one business day prior to the conference set down for 13 September 2021, "in circumstances where the claim arises from the same substratum of facts" as AD/2020/111 and where Dr Braun's solicitors had been acting for him since at least 31 March 2021.62 [53] Dr Braun, through his solicitor, took no steps to seek a stay or adjournment of any of the three proceedings, after the FCA proceedings were commenced.63 [54] "As qualified legal practitioners, it should have been reasonably apparent to the Representative that it would not be reasonable or appropriate for the FCA Proceedings, (AD/2020/111) and GP/2021/24 to continue to hearing in circumstances where that would necessitate findings to be made with respect to the same facts across two jurisdictions."64 Applicant's submission [55] The "Applicant was both entitled and obliged, as a matter of jurisdiction, to pursue his State-based claims against a non-national system employer in the QIRC, and to pursue 60 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15]. 61 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13b]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15b]. 62 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13c]. 63 Ibid [13e]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15e]. 64 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13d]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15d], [18]. -- 20 of 34 -- 21 his Federal-based claims (including common law claims) against a private sector entity (and related individuals) in the Federal Court. The circumstances in which a respondent can claim costs in industrial matters are limited so that applicants can pursue reasonable causes of action without the fear of costs liability from well-resourced employers … The Respondents now seek costs for the Applicant pursuing, as he was fully entitled to do, each of his claims (which he had brought in the correct jurisdiction) despite the clear policy underpinning non-costs jurisdictions generally, including that of the QIRC …"65 [56] The Applicant was entitled to bring each of his claims in the jurisdiction filed. Dr Braun was not obliged to ask the Federal Court "to hear both federal and non-federal claims in circumstances where they were each respectively brought in the correct jurisdiction. Therefore, it is neither reasonable nor inappropriate that the Applicant sought to do so when he did, with such timing then necessarily and inevitably immaterial to the considerations under s 545(2)(b)."66 [57] The Applicant brought the Interlocutory Application in the Federal Court, once he believed there were reasonable grounds to do so - "after which he did not actively pursue the QIRC Proceedings, but only suggested that the disclosure regime (where the parties had concluded their submissions and evidence) be allowed to conclude."67 [58] When the Respondents opposed the Interlocutory Application in the Federal Court, they submitted that only the QIRC could decide claims subject of the QIRC Proceedings, even though there was a common substratum of facts underlying all claims. The Respondents knew there was a real risk that the Interlocutory Application in the Federal Court may not succeed.68 [59] "In these circumstances, the Applicant could not simply file his proceedings in one jurisdiction from the outset. Complex jurisdictional issues made it apparent that the QIRC and FCA separately, were appropriate jurisdictions. It was only after attempting to progress both claims that it progressively became apparent to the Applicant that the factual substratum was so intertwined – and after thorough research into the Federal Court's accrued jurisdiction – such that there was a possibility the matters could be effectively joined (through the process described in the Interlocutory Application) to make their conduct more streamlined, efficient, and cost-effective."69 [60] The Applicant submitted that "… making a costs order for a delay in consolidating the QIRC Proceedings and FCA Proceedings would discourage such a proactive attempt to efficiently reduce the costs and time associated with litigating in two jurisdictions. Justice Rangiah stated that if "the proceedings in the QIRC and the Federal Court 65 Applicant's combined reply submissions on costs filed 31 May 2023, [25]. 66 Ibid [26]. 67 Ibid [27]. 68 Ibid [29]. 69 Ibid [30]. -- 21 of 34 -- 22 continued concurrently, the overall costs for the parties would be much greater and the resources of the two courts would be occupied." The Applicant concluded then that he "will have been better served by allowing the QIRC Proceedings and FAC Proceedings to continue separately" if costs are ordered.70 Consideration [61] I consider that the Applicant's representative acted in a manner that was at best inefficient, and rather verging on discourteous to both the time and resources of the Commission, the Respondents and their representatives. [62] I accept the Respondents' submissions entirely on this point. [63] There was no reasonable excuse given for the Applicant's delay in commencing GP/2021/24 until one business day prior to the conference in matter AD/2020/111 that had been set down for 13 September 2021. Further demonstration of such unreasonableness, was that the date for that AD conference had been listed a month earlier. [64] Unsurprisingly, the Respondents had already incurred the costs of preparation for the conference on 13 September 2021 by that time. As a result of the Applicant's commencement of GP/2021/24, the Respondents were then put to the added cost of preparation for and attendance at a further listing for the matters to be conferenced together on 1 November 2021. [65] In my view, those are clear examples of "a deliberate or reckless action (or inaction) by a representative that is objectively unreasonable by reference to the circumstances in which it occurs." [66] I agree with the Respondents' assessment that Dr Braun's representative took no steps to seek a stay or adjournment of any of the three proceedings, after the FCA proceedings were commenced, even though "As qualified legal practitioners, it should have been reasonably apparent to the Representative that it would not be reasonable or appropriate for the FCA Proceedings, (AD/2020/111) and GP/2021/24 to continue to hearing in circumstances where that would necessitate findings to be made with respect to the same facts across two jurisdictions." [67] There does not appear to have been a clear and cogent approach to ventilating the Applicant's various complaints. That has placed additional costs, time and demands on the Respondents in particular, that they ought be entitled to recover. [68] Finally, the Applicant has submitted that "… making a costs order for a delay in consolidating the QIRC Proceedings and FCA Proceedings would discourage such a 70 Applicant's combined reply submissions on costs filed 31 May 2023, [31]. -- 22 of 34 -- 23 proactive attempt to efficiently reduce the costs and time associated with litigating in two jurisdictions." No proactive approach is in evidence here. While that opportunity may have been seized in the first few months of engagement, it clearly proved elusive. I concur with his Honour's observation that if "the proceedings in the QIRC and the Federal Court continued concurrently, the overall costs for the parties would be much greater and the resources of the two courts would be occupied." However, commendations to the Applicant do not follow because the matters of research and strategy ought to have been settled much earlier. While the Applicant suggested that he "will have been better served by allowing the QIRC Proceedings and FAC Proceedings to continue separately" if costs are ordered,71 I do not accept that either. The amount of costs I will order here are unlikely to be exceed the legal costs that the Applicant would have paid should the three matters across two jurisdictions have all run to finality, with the possibility of costs orders against the losing party remaining at the end of it all. c) Disclosure Application Act Respondents' submission [69] Dr Braun, through his solicitor, filed an application in existing proceedings seeking further disclosure from the Respondents, which was opposed. "The Respondents were put to significant cost to conduct enquiries to respond to the application in circumstances where the Applicant sought to have the proceedings joined in the Federal Court before the application for further disclosure was decided."72 [70] Dr Braun, through his solicitor, "unreasonably sought for the Commission to decide (Dr Braun's) application for further disclosure in circumstances where they had filed the application in the Federal Court seeking that the proceedings be joined in the Federal Court."73 Applicant's submission [71] When the Applicant filed the disclosure application in the QIRC on 20 April 2022 he was "actively and efficiently" pursuing matters filed in the state jurisdiction, as he had not yet sought to join the QIRC matters to the separate FCA Proceedings. "The fact that the matters were later joined and that the Disclosure Application was not concluded in the QIRC, does not make the Disclosure Application itself an unreasonable act."74 [72] The Applicant could not be expected to pause the QIRC Proceedings indefinitely while the Interlocutory Application was being determined because there was no guarantee of 71 Applicant's combined reply submissions on costs filed 31 May 2023, [31] 72 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13f]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15f]. 73 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13i]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15i]. 74 Applicant's combined reply submissions on costs filed 31 May 2023, [32]. -- 23 of 34 -- 24 success and no knowing how long it would take to determine the application. "The Applicant is entitled to seek that the QIRC Proceedings continue on the basis that the Interlocutory Application may not be successful, particularly where doing so primarily involved the QIRC making a disclosure determination without involvement from the parties."75 [73] The Applicant submitted that he "had a right to commence his proceedings in the Federal and State systems and to ventilate them until completion, but equally had no right to commence them jointly within the one jurisdiction and no right or authority to determine whether the Federal Court had jurisdiction to determine both sets of claims". That was for Justice Rangiah to ultimately decide. [74] The Applicant concluded that: The Applicant should not, therefore, have (as the Respondents suggest) prejudiced his own right to continue to efficiently progress his claims whilst he gave consideration to the complex question of the grounds for invoking the jurisdiction of the Federal Court to hear all of them together, or (equally) whilst the Federal Court considered whether the non-federal claims fell within its jurisdiction (in particular noting the fact that there was no guarantee that the Federal Court would answer that question in the affirmative, having regard to the fact that the Interlocutory Application was fiercely contested by every one of the Respondents in the QIRC Proceedings).76 Consideration [75] I agree with the Respondents' submission that it was unreasonable for Dr Braun's representative to file an application in existing proceedings seeking further disclosure from the Respondents, putting them to significant cost to conduct enquiries to respond to the application, in circumstances where the Applicant sought to have the proceedings joined in the Federal Court before the application for further disclosure was decided. [76] It was further unreasonable for Dr Braun's representative to the Commission to decide his application for further disclosure, when they had since filed the application in the Federal Court seeking that the proceedings be joined there. [77] Self-evidently, the question of whether the Federal Court had jurisdiction to determine both sets of claims was a matter for his Honour to decide and he clearly did so. However, having made that interlocutory application in the Federal Court, the Applicant's representative acted unreasonably by pressing the disclosure application at the Commission. 75 Applicant's combined reply submissions on costs filed 31 May 2023, [33]. 76 Ibid [34]. -- 24 of 34 -- 25 d) Stay Opposition Act Respondents' submission [78] Dr Braun, through his solicitor, indicated "his position that the matters should be joined in the Federal Court (with the result that the matters before the Commission would need to be discontinued) on 7 July 2022. However, (Dr Braun) did not take any steps to notify the Commission or seek a consent position with the Respondents as to an adjournment or stay of the Commission proceedings."77 [79] Dr Braun, through his solicitor, "unreasonably opposed the Respondents' application for the proceedings to be stayed filed on 15 July 2022 (including on the basis that the proceedings be stayed pending the determination of (Dr Braun's) interlocutory application in the Federal Court proceedings filed on 18 July 2022). This required the Respondents to incur the cost of preparing for and appearing at a mention at the Commission on 15 August 2022."78 Applicant's submission [80] "On 15 August 2022, (the Applicant's solicitor) sent an email to (the Respondents' solicitor) (and others), providing two potential sets of draft directions for the directions hearing set to be heard that day. Prior to this hearing, counsel for the Applicant confirmed the Respondents' consent to "Draft Directions #1" … This consent was communicated (without objection) to Industrial Commissioner McLennan during the 15 August 2022 hearing."79 [81] The consent orders provided that "[the QIRC proceedings] are adjourned to a date to be fixed", as opposed to being stayed.80 As the Respondents consented to the adjournment, it is "frivolous" to characterise it as "constituting and unreasonable act or omission on the part of the Representative" that would warrant costs orders to be made "in a default no-costs jurisdiction."81 [82] The Applicant did not "actively advance" the QIRC Proceedings while the Interlocutory Application was being decided in the Federal Court, "but the Applicant wished for the QIRC to itself consider finalising the disclosure application to enable the parties to expediently progress the QIRC Proceedings if the Interlocutory Application was not successful. If the Interlocutory Application was successful, as flagged in the email from the Applicant's representative to the QIRC Registry of 25 July 2022, the determination of the disclosure application would have enabled the consolidated FCA proceedings to 77 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13g]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15g]. 78 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [13h]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [15h]. 79 Applicant's combined reply submissions on costs filed 31 May 2023, [35]. 80 Ibid [36]. 81 Ibid [37]. -- 25 of 34 -- 26 be more efficiently progressed … (regardless of the outcome of the Interlocutory Application), effectively achieving desired case management outcomes of quicker, cheaper and more efficiently conducted proceedings."82 Consideration [83] On 7 July 2022, Dr Braun's representative expressed that the matters should be joined in the Federal Court though did not take any steps to either notify the Commission or seek a consent position with the Respondents as to an adjournment or stay of the Commission proceedings. Notwithstanding that the matters before the Commission would need to be discontinued, if that eventuated. At that point, the threshold reached was less than 'unreasonable' but was certainly inefficient and inconsiderate of the time and resources of others involved in the matters. [84] However the actions of the Applicant's representative certainly did became unreasonable when he determined to oppose the Respondents' application for the proceedings to be stayed, including on the basis that the proceedings be stayed pending the determination of the Applicant's interlocutory application in the Federal Court proceedings filed on 18 July 2022. The result was that the Respondents incurred the further cost of preparing for and appearing at a mention at the Commission on 15 August 2022. [85] The Respondent pointed to yet a further example of unreasonableness when, upon the matters being listed for directions hearing on 15 August 2022, the Applicant's representative only emailed two potential sets of draft directions some six minutes before the directions hearing was listed to commence - and continued to seek in the alternative orders which required the parties to put on affidavit material and submissions in relation to the disclosure applications filed.83 [86] For all those reasons, I consider the actions and omissions of the Applicant's representative were unreasonable and has unnecessarily disadvantaged the Respondents to the matters before the Commission. Should an order for costs be made? [87] The default position in proceedings before the QIRC is that parties are to bear their own costs, so as not to discourage parties from pursuing their industrial rights. [88] However, I may award costs to the Respondents, against the Applicant's Representative, if: • I consider it is in the interests of justice because the Applicant's Representative is responsible for unnecessarily disadvantaging the Respondents; 82 Applicant's combined reply submissions on costs filed 31 May 2023, [38]. 83 Respondents' combined submissions on costs in AD/2020/111 and GP/2021/24 filed 7 June 2023, [3]-[5]. -- 26 of 34 -- 27 • I am satisfied the Applicant's Representative caused the costs to be incurred because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding. [89] The term 'may' in s 545 and sch 2 of the IR Act indicates that the power could, rather than must, be exercised, at the discretion of the Commission.84 Even where the criteria are met, an order for costs is not mandated.85 [90] With reference to Simon Lewis v SGA,86 the Respondents submitted that: First, the power to make a costs order against a representative must be exercised with care and discretion and only in clear cases. Second, the Commission's task should be approached having regard to the purpose and terms of the sub-section, which the Respondents submit is one of deterrence and accountability. There is also the contextual consideration: that representatives may only represent clients in this jurisdiction with leave and in limited circumstances. The considerations for granting leave involve questions of efficiency and fairness, which echoes the IR Act's statutory purpose.87 [91] With reference to Allan v State of Queensland,88 the Respondents further submitted that: Third, there is a critical textual distinction between FWA s 401 and the IR Act s 545(2)(b). The FW Act refers to 'lawyers and paid agents', where the IR Act uses the evidently broader concept of 'representative'. Therefore, s 545(2)(b) is not confined to paid representation. Were it so, Parliament could have adopted the same or similar wording to the FW Act, but it did not, as it did other provisions of the IR Act.89 Consideration [92] Industrial Commissioner Dwyer set out some relevant considerations when deciding to award costs against a representative, in Dorman v State of Queensland (Queensland Health) (citations omitted):90 [167] However, there is a compelling case for costs against Mr Rogers pursuant to s 545(2)(b)(ii) of the IR Act on the basis of his (multiple) unreasonable acts or omissions. [168] The phrase 'unreasonable act or omission' in the context of the costs discretion found in s 170CJ(3) of the Workplace Relations Act 1996 (Cth) was extensively discussed by the Full Bench in Veal and it is useful to reproduce that consideration here: 84 Acts Interpretation Act 1954 (Qld) s 32CA(1). 85 Du Preez v Chelden (No. 2) [2020] ICQ 015, [11]. 86 [2020] FWC 2229, [91]-[97]. 87 Respondents' submissions on costs in AD/2020/111 filed 10 May 2023, [10]-[11]. 88 [2018] QIRC 036, [20]-[22]. 89 Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [13]. 90 [2023] QIRC 335. -- 27 of 34 -- 28 [17] The concept of an unreasonable act or omission in s.170CJ(3) was considered in Goffet v Recruitment National Pty Ltd relative to a failure to attend conciliation proceedings. In that matter the Full Bench stated: "[35] In the absence of medical evidence of Ms Goncalves and an opportunity for the Appellant to be heard on the point no weight should attach to the affidavit of Ms Goncalves claim that she was ill on the day of the conciliation on 5 November 2008. The notice of listing for the 5 November 2008 conciliation was sent to the Respondent by fax on 20 October 2008. The matter was listed for 11.30am. The Respondent only notified the Commission that it would not be attending the conciliation when the Commissioner's associate telephoned the Respondent to inquire of its whereabouts at the time of the conciliation. Assuming Ms Goncalves was ill, as it is submitted that she was, no explanation appears to be given for the failure of the Respondent to inform the Appellant or the Commission of the fact prior to the scheduled commencement time of the conciliation or at all at the initiative of the Respondent. That represents conduct in our view, which caused the Appellant and her representative an unnecessary attendance at the Commission for which we think she should have her costs. The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent's conduct in this regard was an intentional act. We are satisfied that the Respondent's conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs." [18] In terms of subsequent behaviour of a party to an unfair dismissal application, the Full Bench continued: "[47] The Respondent's failure to take steps to inform the Appellant of its intentions immediately after the issue of the notice of listing was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable. That those unreasonable acts or omissions caused the Appellant to incur the costs in connection with the conduct of the proceeding is unquestionable. We are satisfied that the Respondent must be ordered to pay the Appellant's costs of and incidental to the submissions and preparation for arbitration. We allow also the costs on an indemnity basis in respect of the costs application." [19] A Full Bench considered the former s.170CJ(2) and (3) in Brazilian Butterfly Pty Ltd and Charalambous. It addressed the pre-existing authorities relevant to these provisions before stating: "[39] Very strong prospects of success will not always justify a failure to participate in settlement negotiations initiated by a serious settlement offer from the other party. For example, where reinstatement is not sought and the amount offered by a respondent is equivalent to the statutory cap on compensation that can be ordered pursuant to s.170CH, it will likely be unreasonable for an applicant to fail to agree to a settlement on those terms, -- 28 of 34 -- 29 irrespective of how strong the applicant's case is. Of course, even then, it is possible to conceive of circumstances where a failure to agree terms of settlement on the basis of such an offer would not be unreasonable. For example, depending upon the circumstances, it may be entirely reasonable for an applicant to insist upon a withdrawal of the dismissal and acceptance of a resignation in its stead if this were necessary to repair substantial damage done to an applicant's professional reputation and future professional job prospects as a result of the dismissal. [40] On the other hand, modest or even poor prospects of success on liability or remedy will not necessarily always make it unreasonable for a party to fail to agree terms of settlement that may lead to the discontinuance of the application. For example, an applicant who was a long term employee close to retirement may have very substantial contingent superannuation entitlements that will be lost unless he or she obtains reinstatement. The difference between the value of those contingent entitlements and the amount offered by the respondent as a monetary settlement may be so great as to make it reasonable for the applicant to refuse the respondent's offer, notwithstanding that the applicants' prospects of success are only modest or even poor. Again, each case will turn on its own facts." (references removed) [20] The Full Bench continued: [43] A reasonable person, who is a party to proceedings pursuant to s.170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including: • the terms of the settlement offered in relation to the relief sought; • the relative strengths of the parties' cases (and thus their relative prospects of success) in relation to both 'liability' and the relief sought; • any assessment of the merits in the certificate issued by the Commission pursuant to s.170CF(2); • the likely length and cost of proceeding to a hearing if the matter does not settle; and • any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be. [44] This list is not intended to be exhaustive. All of the circumstances are relevant and, as is made clear in the joint judgment in Blagojevch, there is no basis in the Act for giving primacy to any particular factor in every case. [45] In many, if not most, cases there will be contested facts or contested interpretations of particular facts. What knowledge in this regard is to be attributed to the reasonable person considering whether, and if so, how to respond to an offer of settlement? The passage in Abbey, upon which the Commissioner relied was, clearly enough, an attempt to grapple with that -- 29 of 34 -- 30 problem. However, there is a tension between the way in which that passage is expressed and the apparent acceptance by the majority in Blagojevch that a party can act reasonably in responding to an offer of settlement by reference to that party's "genuine perception or recollection of events". The Full Court's formulation is to be preferred although, even then, it is not to be seen as a substitute for the words of the Act. Of course, there is an issue as to what constitutes a "genuine" perception. The Full Bench in Kangan Batman TAFE observed, we think correctly, that: "A party cannot simply disregard matters that should have been reasonably apparent and then claim that such matters were not apparent to them." [21] Some additional guidance about the concept of an unreasonable act may be found in the Full Bench decision in Stagno v Frews Wholesale Meats in the following terms: "This last extract introduces a point of distinction between s.170CJ(1) and s.170CJ(2). The former refers to `without reasonable cause', the latter to `acted unreasonably'. This anomaly, as it was described, is noted by a full bench in K.M. Lloyd v. International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty College [Print Q5446] and, by inference, the bench is of the view that the tests are different in s.170CJ(1) and (2). That there is a different formula is clear but we are of the view that the formulations are based on the stage of proceedings at which they occur. Section 170CJ(1) relates to the initiation of proceedings. Section 170CJ(2) relates to the failure to discontinue or the discontinuance of the matter. In each case what attracts the discretion to award costs is unreasonable action or the absence of sufficient reason for the action taken. What is considered to be without reason is determined by reference to the stage that the proceeding has reached. We note that this leaves open the possibility that proceedings may commence which are with reasonable cause but may, in particular circumstances at a later stage, be further prosecuted unreasonably. We are of the view that a party to a proceeding commenced under s.170CE of the Act in which the Commission has begun arbitrating has acted unreasonably in failing to discontinue the matter if when, at the relevant time, upon the facts apparent to the applicant there was not substantial prospect of success." (Emphasis added) [169] The discussion in Veal reveals that a consideration of the facts in each matter is required to determine what is or is not an unreasonable act or omission. In the Commission's view, the phrase 'unreasonable act or omission' connotes something more than mere incompetence, although incompetence will often be an ingredient. It suggests inter alia a deliberate or reckless action (or inaction) by a representative that is objectively unreasonable by reference to the circumstances in which it occurs. [170] In Sharkey v Life Without Barriers, the Full Bench of the Fair Work Commission concluded: [92] As noted by the Federal Court in Barkhazen, the power to make a costs order against a lawyer must be exercised with care and discretion and only in clear cases. The -- 30 of 34 -- 31 element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success. However, an ulterior purpose or an abuse of process cannot be assumed simply because the case does not succeed or even because it is hopeless. (Emphasis added) [93] The Respondents explained that in circumstances where Dr Braun, through his Representative, decided "to commence related proceedings in two jurisdictions on the same day, and proceed to actively pursue both proceedings for a period of approximately 10 months, before seeking the transfer of the proceedings before the Commission to the Federal Court, the costs of responding to the Application in the Commission are thrown away."91 I agree. [94] The Respondents submit that the costs they have been put to include: 1. the costs in responding to the disclosure applications on and from at least 7 July 2022, potentially prior to that given the Federal Court Interlocutory Application must have been anticipated well before it was filed given its purported complexity; 2. the costs of filing the stay applications on 15 July 2022; and 3. the costs of preparing and appearing at the directions hearing on 15 August 2022; in circumstances where the Applicant conducted the litigation from at least 7 July 2022, inefficiently, and made belated concessions.92 [95] I consider that the costs above each represent instances where the Respondents have been "unnecessarily disadvantaged" by the "unreasonable" way the Applicant's Representative has conducted the matters before the Commission. [96] The Respondents observed that the "discontinuance here was not early nor a mitigating circumstance."93 Rather, the Respondents were required to continue to incur significant costs to defend AD/2020/111 and GP/2021/24 in the QIRC,94 pending the resolution of the interlocutory application filed in the FCA proceedings.95 91 Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [24]. 92 Respondents' combined reply submissions on costs in AD/2020/111 and GP/2021/24 filed 7 June 2023. 93 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [15]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [17]. 94 A period of approximately 10 months (between Dr Braun filing the FCA proceedings - and later agreeing to an adjournment of matters AD/2020/111 and GP/2021/24). 95 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [16]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [24]. -- 31 of 34 -- 32 [97] In considering the submissions before me, I have determined that the Applicant's Representative is responsible for unnecessarily disadvantaging the Respondents because of an unreasonable act or omission. [98] As such, a departure from the default position of parties bearing their own costs is warranted in my view. For those reasons, I will make a costs order against Dr Braun's Representative in the interests of justice, despite the application to discontinue AD/2020/111 and GP/2021/24. [99] Section 5(1) of sch 2 of the IR Act provides that the QIRC "must give the representative a reasonable opportunity to be heard in relation to making the order." That was done, in submissions filed on 31 May 2023 with respect to both AD/2020/111 and GP/2021/24. Is the costs order an 'appropriate term' to allow the Applicant's request for discontinuance? [100] The Respondents "objects to the discontinuance" because they have incurred costs to defend matters AD/2020/111 and GP/2021/24 for approximately 10 months after Dr Braun filed the FCA proceeding.96 They contend that the Commission's power to award costs pursuant to the IR Act is enlivened in such circumstances.97 [101] The Respondents submit there are no provisions in the IR Act, Tribunal Rules or elsewhere that prevent a costs order being a 'term' for allowing the discontinuance.98 [102] With reference to r 68(6) of the Tribunal Rules, it is open to the Commission to allow the Applicant's request for discontinuance on an appropriate term. [103] In the circumstances of this case, I consider that an order for costs thrown away is such an "appropriate term". [104] That is because even if "the Respondents are successful in their defence of the FCA Proceedings and obtain an order for costs from the Federal Court, this will not entitle the Respondents to recover their costs of responding … in the Commission."99 [105] Put another way, if I were to permit the discontinuance of AD/2020/111 and GP/2021/24 without imposing a term that the Respondents be paid the costs thrown away in defending those matters in the QIRC, the Respondents could not otherwise recoup those costs. In my view, that outcome would not be fair and just. 96 Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [21]. 97 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [17], [19]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [21]. 98 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [20]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [22]. 99 Respondent's submissions on costs in AD/2020/111 filed 10 May 2023, [23]; Respondent's submissions on costs in GP/2021/24 filed 10 May 2023, [23], [25]. -- 32 of 34 -- 33 [106] For those reasons, I believe a costs order is such an 'appropriate term' to allow the Applicant's request for discontinuance and I will proceed on that basis. What amount of costs should be ordered? [107] I have earlier found that the Respondents have been unnecessarily disadvantaged by unreasonable acts and omissions by Dr Braun's Representative, Harmers Workplace Lawyers.100 [108] The amount of costs sought by the Respondents for costs thrown away in defending matter AD/2020/111 were particularised in a schedule to the affidavit of Ms Geraldine Matthews,101 affirmed and filed on 15 March 2024. The Respondents seek orders that Dr Braun's Representative pay to them a stated amount of costs arising from:102 a. Preparation for and attendance at the conciliation conference on 13 September 2021; b. Responding to the application in existing proceedings filed by the Applicant on 20 April 2022; c. Preparing and pursuing the application in existing proceedings filed by the Respondents on 15 July 2022. [109] With respect to AD/2020/111, the Respondents sought an order that the complaint is allowed to be discontinued on the terms that the Applicant's representative "pay a stated amount to the Respondents as compensation for the unnecessary costs. [110] The affidavit of Ms Matthews,103 affirmed and filed on 15 March 2024, submitted the total amount claimed by the Respondents for recovery of costs thrown away to be $12,699.50. [111] With respect to GP/2021/24, the Respondents did not file a separate affidavit in that matter as the order sought was that the application is allowed to be discontinued on the terms that the Applicant's representative pay the Respondents' "costs thrown away in the proceedings, as agreed or assessed." [112] The Commission is empowered (under s 545, s 548 and sch 2 of the IR Act and r 70 of the Tribunal Rules) to award an amount of costs. The precise quantum of costs awarded is discretionary, though discretion must be exercised judicially. The amount of costs may 100 Affidavit of Ms G. Matthews, affirmed 15 March 2024, [3]. 101 Senior Lawyer, Crown Law, representing the Respondents. 102 Affidavit of Ms G. Matthews, affirmed 15 March 2024, [3]-[5]. 103 Senior Lawyer, Crown Law, representing the Respondents. -- 33 of 34 -- 34 be informed by the Magistrates Court scale and other relevant matters.104 It is open to the Commission to make an order which best fits the circumstances of the case. AD/2020/111 [113] For proceedings under the AD Act, s 5(1) of sch 2 of the IR Act provides that the QIRC "may make a costs order requiring the representative to pay a stated amount to the other party as compensation for unnecessary costs." [114] Matter AD/2020/111 is discontinued on the term that the Applicant's representative, Harmers Workplace Lawyers, must pay the Respondents' costs in the "interests of justice".105 That is, the Respondents' costs in the stated amount of $12,699.50. GP/2021/24 [115] Matter GP/2021/24 is discontinued on the term that the Applicant's representative, Harmers Workplace Lawyers, must pay the Respondents' costs, as agreed or assessed. [116] I order accordingly: Orders: 1. Pursuant to r 68(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the proceedings in matters AD/2020/111 and GP/2021/24 are discontinued. 2. Pursuant to s 548 of the Industrial Relations Act 2016 (Qld) the representative of the Applicant in matter AD/2020/111, Harmers Workplace Lawyers, must pay the Respondents' costs in the amount of $12,699.50 within 28 days of this order. 3. Pursuant to s 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld) the representative of the Applicant in matter GP/2021/24, Harmers Workplace Lawyers, must pay the Respondents' costs, as agreed or assessed. 104 Industrial Relations (Tribunals) Rules 2011 (Qld) r 70. 105 Industrial Relations Act 2016 (Qld) sch 2, s 4(1). -- 34 of 34 --