QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Anters v JM Group Holdings Pty Ltd & Anor 
(No. 3) [2023] QIRC 238

Anters, Dawn
(Complainant)

v

JM Group Holdings Pty Ltd
(First Respondent)

and

Sharpe, Virginia 
(Second Respondent)
	
CASE NO:
	AD/2021/39
	
PROCEEDING:
	Application for costs
	
DELIVERED ON:
	23 August 2023	
MEMBER:

HEARD AT:

ORDERS:
	McLennan IC

Decided on written submissions without oral hearing.

That, within 28 days, Mr Dawn Anters is to pay the Respondents $43,736.38 as costs incurred in these proceedings.
	
CATCHWORDS:

LEGISLATION & OTHER INSTRUMENTS:

CASES:

	HUMAN RIGHTS – DISCRIMINATION – REFERRAL OF COMPLAINT – APPLICATION FOR COSTS – where substantive application in AD/2021/39 dismissed – where no breach of the Anti-Discrimination Act 1991 occurred – whether an order for costs ought be made in the interests of justice – where the Industrial Relations Act 2016 provides for consideration in costs orders under the Anti-Discrimination Act 1991 – where costs are awarded if it is in the interests of justice to do so – where the respondent seeks costs on an indemnity basis – where the respondent seeks to have costs fixed – consideration of the amount of costs ordered

Anti-Discrimination Act 1991 (Qld) s 124, 
s 129, s 130, s 166 

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

Industrial Relations (Tribunals) Rules 2011 (Qld) r 70 

Migration Act 1958 (Cth) s 245AE

Anters v JM Group Holdings Pty Ltd & Anor (No. 2) [2023] QIRC 131 

Anters v JM Group Holdings Pty Ltd & Anor [2022] QIRC 382
 
Blackwood v Egan [2014] ICQ 020

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlton v Blackwood [2017] ICQ 001

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Commonwealth v Humphries (1998) 86 FCR 324

Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Golding v Sippel and The Laundry Chute Pty Ltd (No. 2) [2021] ICQ 018

Habibi Arehjan v Journeaux [2020] QIRC 41

House v The King (1936) 55 CLR 499
Latoudis v Casey (1990) 170 CLR 534

Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300

Northern Territory v Sangare (2019) 265 CLR 164

Willmott v Woolworths Ltd [2014] QCAT 601	

Reasons for Decision

[1]	Mr Dawn Anters (the Complainant) initiated proceedings against JM Group Holdings Pty Ltd (the First Respondent) and Ms Virginia Sharpe (the Second Respondent), alleging various contraventions of the Anti-Discrimination Act 1991 (Qld) (the AD Act) in the pre-work area.

[2]	On 12 May 2023, this Commission dismissed that complaint.  Parties were directed they would be heard on the question of costs.

[3]	Some months earlier, the Complainant also failed in an application for disclosure.  A decision on costs was reserved at that time.

[4]	The Respondents sought costs against the Complainant.

[5]	The Complainant's position was that each party should bear their own costs.

Background

[6]	The Complainant filed a complaint in the Queensland Human Rights Commission (QHRC) on 31 December 2020, alleging that he had been asked unnecessary questions about the protected attributes of 'race' and 'age' and victimised, in the course of applying for work.

[7]	An unsuccessful conciliation before the QHRC resulted in this matter being referred to the Queensland Industrial Relations Commission (the Commission) on 24 August 2021, pursuant to s 166(1)(a) of the AD Act.

[8]	A conciliation conference was conducted by the Commission on 12 October 2021; though the parties failed to reach resolution there either.  A Mention was held on 12 November 2021.

[9]	The matter was allocated to me to decide.  Mentions were conducted on 13 April 2022 and 4 October 2022.  

[10]	At the Hearing on 10 November 2022, the Complainant alleged the First Respondent made unlawful requests for information in that he was asked:

•	to provide a copy of his passport or birth certificate before a telephone appointment with the First Respondent's Recruitment Manager, Ms Virginia Sharpe (the Second Respondent); 

•	his date of birth (an optional question); and

•	to indicate whether he is an Australian Citizen and to provide proof (e.g., Australian Passport, Full Australian Birth Certificate, Australian Citizenship Certificate or Certificate of Evidence of Citizenship).

[11]	The Complainant stated that he was "highly offended" and "intimidated" by the questions.

[12]	In light of those allegations, the Complainant contended:

•	the Respondents made three unlawful requests for information within the meaning of s 124 of the AD Act; 

•	that by not providing the Respondents with a copy of his passport when it was not required, the Complainant refused to do an act that would amount to a contravention of the AD Act within the meaning of s 130(1)(a)(i); and

•	to the detriment of the Complainant, the Respondents refused to consider him for any opportunities while he was unemployed and actively looking for work - this constitutes victimisation under s 129 of the AD Act.

[13]	The Respondents strenuously denied all allegations.

[14]	In a Decision released on 12 May 2023,  I found that:

•	no breach of s 124 of the AD Act occurred; and

•	no victimisation occurred, within the meaning of s 130 of the AD Act.

[15]	The outcome was that Mr Anters' complaint was dismissed and the parties would be heard on costs.

[16]	The Commission's Decision was not appealed.

Application in Existing Proceedings

[17]	On 1 September 2022, Mr Anters made application that the Respondents disclose:

1)	The documents – including briefs, email communications, and the contract with the potential employer – the job advertised by the Respondent

	…

2)	The total number of "junior lawyers" recruited by the Respondent since September 2020

[18]	Mr Anters then advised that the first category of documentation was no longer sought.

[19]	With respect to the second category of disclosure, in his reply submissions Mr Anters instead sought the following:

a redacted copy of all "Junior Lawyers" whom recruited by the Respondents. In the alternative, and if there is any confidentiality issue as identified by the Respondents, the Commission makes an order that requires the Respondents to provide, instead of the Complainant, the Commission with the same documents.

[20]	The Respondents submitted that Mr Anters had requested similar information previously.  By at least November 2021, the Complainant had already been told that request was not relevant and the Commission would not be making any orders at that time.  

[21]	Ultimately, the Application was dismissed and my decision on costs reserved. 

[22]	The Commission's Decision was not appealed.

The power to award costs

[23]	The Respondents asked to be heard on the question of costs. 

[24]	Section 545 of the Industrial Relations Act 2016 (Qld) (IR Act) provides a general power to award costs.  However, s 545 does not apply to proceedings heard by the Commission under the AD Act.  

[25]	Section 548 of the IR Act provides:

548	Costs provisions
(1)	The provisions for costs in schedule 2 apply to a proceeding—
(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.

[26]	Section 2 of sch 2 of the IR Act provides that, for proceedings brought under the AD Act, the default position is for each party to bear its own costs:

Schedule 2 Costs provisions for proceedings under Anti-Discrimination Act 1991

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.

[27]	A departure from this practice would only occur in circumstances where "the interests of justice" would require an order for costs to be made.  Section 4 of sch 2 lists circumstances that may inform any decision as to whether an order for costs may be made:

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.

[28]	Section 7 of sch 2 provides that:
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.

[29]	Section 9 of sch 2 provides that costs ought be fixed, if possible:
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.

[30]	Rule 70 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides:

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 
…
(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.

Questions to be decided

[31]	There are two issues to be determined here: whether an order for costs should be made; and if so, then the amount of costs that should be ordered.

[32]	For the reasons that follow, I find that: 

•	An order for costs is warranted; and  

•	The amount of costs to be paid by Mr Anters to the Respondents is $43,736.38.
That is to be paid within 28 days of this decision being issued. 

Submissions

[33]	On 2 June 2023, the Respondents filed costs submissions in the Industrial Registry.  

[34]	The Complainant's submissions in response were dated 26 June 2023.  

[35]	The Respondents filed a reply to the Complainant's submissions on 29 June 2023.

[36]	The Complainant made further submissions on 25 July 2023.

Should an order for costs be made?

[37]	The default position in proceedings of this type in the Commission is that parties are to bear their own costs. That default position exists to not discourage parties from pursing their rights, and so is not easily disturbed. 

[38]	However, I am empowered by the IR Act to award costs to the Respondents, against Mr Anters, in this matter if the "interests of justice" require it.  

[39]	In deciding whether to make such order, the Commission may have regard to:

(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.

Whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding

[40]	The Respondents submitted that:

•	Mr Anters' "claim was entirely unsuccessful" and "his conduct has caused considerable expense, delay and inconvenience for the Respondents."

•	Mr Anters was found to have "raised irrelevant matters, regularly attempted to alter the scope of the dispute, ‘shifted the goal posts' on several occasions, unreasonably refused to make concessions and persisted in making arguments which were inconsistent with his previous stated position, and by this conduct has generally caused significant disadvantage and expense to the Respondents."

•	Mr Anters had a clear advantage over the Respondents as he is a lawyer and was able to represent himself in these proceedings at no cost.

•	Mr Anters raised complex legal issues.  The Respondents required legal assistance to defend the unsuccessful claims, at significant expense. 

•	Mr Anters caused "substantial financial disadvantage to the Respondents without incurring any corresponding financial disadvantage for himself."

•	While Mr Anters was able to represent himself in these proceedings, the Respondents were put to the considerable expense of: 

(a)	Responding to the initial complaint in the Queensland Human Rights Commission; 

(b)	Attending a pre-conciliation meeting by telephone in the Queensland Human Rights Commission on 28 July 2021; 

(c)	Attending a conciliation conference in the Queensland Human Rights Commission on 3 August 2021; 

(d)	Attending several conferences before the Queensland Industrial Relations Commission, including on 12 October 2021, 12 November 2021, 4 October 2022;

(e)	Filing substantive formal documents, outlines, lists of documents, lists of witnesses, outlines of argument and other Forms in the Queensland Industrial Relations Commission;

(f)	Filing substantive submissions in relation to the Applicant's unsuccessful and misconceived request for disclosure, the application for which was partially withdrawn during oral submissions (but after the Respondents had already been put to the expense of filing written submissions).

It was further observed during that interlocutory application that the Applicant "seemingly shifted the order he seeks."

The Applicant was also criticised for bringing an unacceptable Application: "The Complainant's request for disclosure can be likened more to a fishing expedition in that it appears the Complainant is endeavouring to discover whether he has a case rather than to acquire relevant evidence that would support his position.  That is not acceptable."  "The Complainant has not satisfactorily explained the direct relevance of the documentation sought and I have instead formed the view that the request constitutes an impermissible fishing expedition."

(g)	Filing substantive submissions in relation to the Applicant's application for a change of venue of the trial;

(h)	Various attendances upon the Respondents;

(i)	Attending a conference with the Respondents and Counsel to prepare for the trial;

(j)	Instructing Counsel at trial where considerable time was wasted by the Applicant calling a witness who was entirely irrelevant to the proceedings and who "had no bearing whatsoever on the questions to be determined."

•	Mr Anters apparently misused these (and multiple similar) proceedings to extract money from the Respondents (and other Respondents in a multitude of similar claims).

•	The Commission observed that Mr Anters' evidence meandered around matters "only tangentially related (if at all) to the Respondents."  

•	Whilst Mr Anters stated at the Mention on 13 April 2022 that "I have never contemplated proceedings such as this in my life before …", the Commission found that "simply cannot be true because some months earlier, on 16 December 2021, the Respondents submitted to me a list of claims initiated by Mr Anters, including one in this Commission …"

•	Mr Anters' behaviour was in direct contrast to the Respondents' witnesses, Mrs Mlikota and Ms Sharpe, whose "responses were clear, direct, reasonable and on-point."

•	Mr Anters "has repeatedly filed frivolous and / or vexatious claims wasting the Commission's valuable time and causing considerable expense to the respective Respondents in each case – without any penalty to himself.  An adverse costs order in these proceedings may deter the Applicant from continuing to bring such unmeritorious claims."

[41]	The Complainant submitted that:

•	Mr Anters was unemployed between the time of filing in the Queensland Human Rights Commission (QHRC) on 31 December 2020 "until about May 2022".  After May 2022, Mr Anters had to take time off work to attend mentions and the final hearing.

•	Mr Anters travelled to Cairns and stayed there for 2 nights whilst in difficult financial circumstances.

•	Mr Anters put significant time and effort into the proceedings.

•	The time and expense incurred by the Respondents in attending conferences, filing submissions and other materials as directed are all "usual processes of responding to a complaint that has been accepted by the QHRC."

•	With respect to the interlocutory application, Mr Anters denied that he partially withdrew his disclosure application during his oral submissions at the first Hearing.  The Complainant instead submitted that "this withdrawal happened well before the oral submission and via written submission filed on 30 September 2022" and in any case, the Respondents' submissions were just 4 pages.

•	Mr Anters denied that he applied for "a change of venue of the trial", so the costs incurred by the Respondents in making submissions about that cannot be sheeted home to the Complainant.  Mr Anters stated that "Upon realising that the Complainant was in Canberra and the Respondents are in Cairns in the Mention held on 13 April 2022, Commissioner McLennan requested the parties to inform the registry about the venue for the final hearing.  Accordingly, the Complainant sent an email submitting his view."

•	Mr Anters called his second witness "with the hope that he will be able to provide information that is relevant to the proceeding" but that evidence was not in the Complainant's control.  In any case, the witness' evidence in chief took just 10 minutes and the Respondents chose not to cross-examine that witness.

•	Despite the Hearing being listed for 2 days, it took just three-quarters of a day.

•	Mr Anters denied the Respondents' criticism of his "apparent misuse of these (and multiple similar) proceedings as an apparent vehicle to attempt to extract money from the Respondent (and other Respondents in a multitude of similar claims)."  The Complainant stated he proceeded only in circumstances where the relevant human rights commission accepted the complaint as it "sets out reasonably sufficient details to indicate an alleged contravention of the relevant provisions" and not all complaints are so accepted.

•	Mr Anters acknowledged he did not give his evidence clearly and articulately.  He stated that he was "exhausted and emotionally drained" due to working long hours on Monday and Tuesday of the hearing week; travel from Canberra to Cairns; lack of sleep as he had to read the materials the night before the hearing.

•	At the Mention on 13 April 2022, Mr Anters accepted that he stated "I have never contemplated proceedings such as this in my life before", though clarified that was in response to Commissioner McLennan's question as to the days required for the final hearing.  The Complainant asserted that although the Commission is not bound by the rules of evidence, by admitting this matter into evidence without providing Mr Anters with an opportunity to respond, was an error in law.  Further, "by considering matters that should not have been considered", the Commission made a further error of law.  Mr Anters contended this was a relevant consideration towards deciding whether or not costs should be awarded.

•	Mr Anters stated that "a costs order for deterrence is not required because the QIRC's decision in this matter alone is sufficient for a complainant to lose hope of the entirety of the discrimination regime such that no more time will be wasted on such proceedings."

The nature and complexity of the proceeding

[42]	The Respondents submitted that:

•	Mr Anters is a lawyer and raised complex legal issues such as unlawful requests for information, victimisation, vicarious liability and appropriate remedies.  Those were beyond the scope of the Respondents to adequately address without legal assistance. 

[43]	The Complainant submitted that:

•	The Respondents' representative stated at Mention that "The version of facts are relatively consistent.  It's possibly just more legal argument that might take up some time … There's no real debate about emails that were sent.  It's more about whether or not the contents of documents or emails were, I suppose, lawful."  Mr Anters therefore denied that he had "raised complex legal issues throughout the course of the matter" nor had he "unreasonably refused to make concessions and persisted in making arguments".  By stating Mr Anters had done so, he argued the Respondents had moved the goal posts – and that the Complainant should not be disadvantaged by having to "contend with the shifting sands of an undefined argument".    

•	The Complainant also suggested that a one-day hearing may have been justified in such circumstances.  

The relative strengths of the claims made by each of the parties to the proceeding

[44]	The Respondents submitted that:

•	The Respondents' claims "have been consistent, clearly articulated and proven to be correct."  The Commission considered that evidence of the Respondents' witnesses to be "clear, direct, reasonable and on-point."  Each of the defences raised by the Respondents were accepted by the Commission.

•	"In contrast, the Complainant has failed entirely with his claim, his arguments were unclear and regularly shifted throughout the course of the matter."

[45]	The Complainant submitted that he could not have known his case would not succeed because:

•	Although the Commission found that Mr Anters was asked to supply information on which unlawful discrimination might be based, it was satisfied such request was necessary to comply with an existing provision of another Act(s).  As that finding differed from the Queensland Civil and Administrative Tribunal (QCAT) decision in Willmott v Woolworths Ltd ('Willmott') on the same section of the Migration Act 1958 (Cth), Mr Anters could not have anticipated the Commission's decision in his case.

•	Before the Hearing, Mr Anters did not know why the Respondents asked to check candidates' work rights at an earlier time, rather than at some point closer to an actual or expressly contemplated referral of the person for employment.  Only during Mrs Mlikota's evidence were the following reasons revealed to Mr Anters:

a)	meeting a standard of care and being fair to the person who was approaching the respondent to obtain employment by making sure that such a person was not led to the belief they could obtain employment through the first respondent with employers in Australia without being qualified to do so;
b)	assuring those employers who may use the first respondent's services that they had systems in place to comply with legislative requirements and therefore providing assistance to those employers with their compliance requirements;
c)	to be in a position to move quickly in referring a potential candidate to a potential employer;
d)	to avoid the prospect that this necessary step be taken prior to a referral because a failure to do so could negatively impact on the respondents' reputation in a small market.

The financial circumstances of the parties to the proceeding

[46]	The Respondents submitted that:

•	They have been put to considerable expense in defending these proceedings.  That is "a significant burden on innocent parties", where the Respondents are a small business and a key employee.

•	The Respondents used the same solicitors and Counsel throughout, to minimise their legal expenses.

•	Mr Anters "is employed (or, at least, was employed at the time of the hearing) and there is no evidence to suggest that he cannot contribute towards payment of the Respondents' costs."

[47]	The Complainant submitted that:

•	It was entirely the decision of the Respondents to be legally represented "in a relatively simple matter and whilst legally knowledgeable and qualified staff were employed …"

•	Unlike Mr Anters, the Respondents have not disclosed their financial position.  It is open to the Commission to find that had the Respondents done so, it would not have assisted them.

•	The "First Respondent is an incorporated entity that is financially viable and employs several staff in its business."

•	Mr Anters comprehensively outlined his modest financial situation; including assets, debts and living expenses in his Affidavit affirmed 25 June 2023.

Anything else the commission considers relevant

	Settlement offers

[48]	The Complainant submitted that:

•	Mr Anters offered to settle the matter on 24 June 2021, ahead of the conciliation conference at the QHRC, on the basis that the Respondents pay him $10,000 as final settlement.  The Complainant asserted that he received no response from the Respondents to this offer.

•	Mr Anters again offered to settle the matter on 27 August 2022, on the basis that the Respondents pay him $15,000 as final settlement.  The Complainant asserted that he received no response from the Respondents to this offer.

[49]	The Respondents submitted that Mr Anters' "offers of settlement are irrelevant as the Complainant was entirely unsuccessful at trial …"

[50]	The Respondents submitted that:

•	They offered to settle the matter on 20 August 2021, and again on 2 November 2021, on the basis that they pay to the Complainant $5,000.  

•	The Complainant was informed that the Respondents would seek an order that he pay their legal costs on an indemnity basis, should his claim ultimately fail at the Commission.

•	"The amount offered is clearly better than the outcome achieved by the Applicant following the trial."

•	The Respondents clearly articulated the reasons why Mr Anters should accept the offer of settlement:

1.	With respect, our clients maintain that your proceedings have no real prospects of success because, amongst many other reasons: 

(a) 	our clients have not acted unlawfully; 
(b) 	our clients have not breached any provisions of the Anti-Discrimination Act 1991; 
(c) 	our clients will be able to demonstrate that they have acted consistently and in good faith based upon the advice of government departments; 
(d) 	your allegations appear to be premised entirely upon assumptions and inferences which, again with respect, have been made incorrectly and without any supporting evidence. 

2.	Our clients will clearly be able to rely upon the statutory defence contained in s124(3) Anti-Discrimination Act 1991. Our clients will be able to demonstrate on the balance of probabilities that the subject request for information was reasonably required for a purpose that did not involve discrimination. 

3.	The facts of this matter can be clearly distinguished from the facts in Willmott v Woolworths Ltd [2014] QCAT 601 on many bases. Most significantly, it was only at the interview stage when our clients requested relevant documentation to prove that a potential employee could lawfully work. Willmott can also be distinguished on the basis that that case concerned the direct actions of an employer, whereas our client was at all times acting as an agent. It was reasonable of our client to require information in those circumstances. 

4.	Further, or alternatively, even if your complaints do have some prospects of success (which is not admitted), the likely amount of damages which could be awarded would not exceed $5,000.00, following the decision in Willmott. Without making any admissions, our clients have made such an offer. 

5.	Our clients have already incurred substantial legal and other costs in relation to your complaints. In making this Offer, our clients are making a genuine compromise in an attempt to avoid further unnecessary litigation and costs for all parties. 

In the event that your proceedings in the Queensland Industrial Relations Commission fail, then our clients will use this letter to seek an order that you pay their legal costs of those proceedings on the indemnity basis.

•	The Commission determined each of those grounds to be correct.

Remedy sought by the Complainant

[51]	At the time of filing in the QHRC on 31 December 2020, the Complainant sought that the Respondents pay him a total of $13,950 plus interest.

[52]	By 18 November 2021, the sum proposed by the Complainant to settle his complaint had soared to $115,100 plus interest.

[53]	Mr Anters offered no cogent reason as to why that amount escalated so enormously, in less than 12 months.  

[54]	I note though that Mr Anters' proposal to resolve the matter for that inflated sum came about a fortnight after the Respondents' last offer to pay him $5,000.  In my view, that epitomises the quite unreasonable and capricious approach taken by Mr Anters to these proceedings.

	Application in existing proceedings

[55]	Prior to the Hearing, Mr Anters filed a Form 4 Application in Existing Proceedings (the Application) seeking that the Respondents be ordered to disclose the following:

3)	The documents – including briefs, email communications, and the contract with the potential employer – the job advertised by the Respondent

	…

4)	The total number of "junior lawyers" recruited by the Respondent since September 2020

[56]	On 5 September 2022, a Directions Order was issued, requiring parties to file written submissions with respect to the Application. The Complainant was also granted leave to make oral submissions.  

[57]	On 30 September 2022, the Complainant advised that he no longer sought the first category of documentation, such that the Application now only concerns the second category.

[58]	While Mr Anters submitted that he "withdrew the request for the first set of documents as soon as it has come to his knowledge that these documents are not in the possession of the Respondents," I do not accept that is the case.

[59]	In that earlier application, the Respondents submissions included that:

•	on 30 October 2021, the Complainant wrote to the Industrial Registry requesting "discovery" of similar information from the Respondents to that requested in the Application; 

•	on 12 November 2021, the Commission convened a conference to discuss the Complainant's request and the Commissioner advised that the Complainant's request was not relevant and the Commission would not be making any orders at that time.  

[60]	Mr Anters' request for the first set of documents was initially made on 30 October 2021.  On 12 November 2021, Industrial Commissioner Dwyer explained why that was not relevant to Mr Anters.

[61]	Apparently undeterred, Mr Anters filed an Application in Existing Proceedings on 1 September 2022 seeking disclosure of the first set of documents.  By that time, the matter had been allocated to me.

[62]	On 5 September 2022, the parties were directed to file written submissions with respect to the Application.

[63]	Only on 30 September 2022 did Mr Anters withdraw his request for the first set of documents.  That was after the Respondents were required to invest the time and expense of filing submissions about the entirety of Mr Anters' application on 13 September 2022.

[64]	In my Decision on this interlocutory matter, I found that the Complainant had rather shifted the order sought. In the Application, the Complainant sought "The total number of "junior lawyers" recruited by the Respondent since September 2020" which on its plain and ordinary meaning indicates the Complainant is seeking a number – i.e., an answer to his question. The Complainant subsequently amended the wording of his request, indicating he seeks redacted copies of the job applications of those "Junior Lawyers".

[65]	In requesting "the total number" of junior lawyers, the Complainant effectively asked - how many junior lawyers did the Respondents recruit since September 2020? As I found in Habibi Arehjan v Journeaux, "By definition, an 'answer to a question' is not a document in existence." As the answer to the Complainant's question is not a 'document', I could not make an order requiring disclosure under r 41(2)(o) of the Industrial Relations (Tribunals) Rules 2011 (Qld).  

[66]	With respect to the Complainant's altered request for the redacted job applications of those "Junior Lawyers", I was not satisfied that redacted job applications are relevant to the question of whether or not victimisation occurred and by extension, quantification of damages.

[67]	I concluded that the Complainant had not satisfactorily explained the direct relevance of the documentation sought and I instead formed the view that the request constituted an impermissible fishing expedition. 

[68]	Himself a lawyer, it ought to have been certainly obvious to Mr Anters by 12 November 2021 at least that his disclosure application in its entirety was doomed.

No objection to legal representation 

[69]	Mr Anters stated that he "did not object to the Respondents' application seeking legal representation, whilst he could have objected to it" because they had been submitted that "it would be unfair not to allow the First and Second Respondents to be represented because those parties are unable to represent themselves."

[70]	In his affidavit, Mr Anters affirmed that "It has also come to my attention that the Respondents' office at the relevant time had a legally qualified person, namely Zoe Mlikota who was present at the conciliation conference before the QHRC on 3 August 2021."  

[71]	The Respondents submitted that:

It is inadmissible for the Complainant to speculate that Ms Zoe Mlikota was legally qualified on 3 August 2021, or at any other time during the course of these proceedings.  There is no admissible evidence to support this speculation by the Complainant.  Ms Zoe Mlikota is a University student and there is no evidence that the Respondents have ever suggested that she is admitted to the legal profession …

[72]	In Mr Anters' further submissions, he stated "From an internet search, it had come to the Complainant's attention that Ms Zoe Mlikota was studying law and was about to complete a law degree at the relevant time, which, in comparison to the situation of the Complainant as a newly qualified lawyer, was not substantially different…"

[73]	I agree there is no evidence to support Mr Anters' speculation on this rather irrelevant point.

Consideration

[74]	In deciding to award costs against the Applicant in Dawson v State of Queensland (Department of the Premier and Cabinet) ('Dawson'), Vice President O'Connor cited the following:

Martin J observed in Blackwood v Egan, that an order for costs is a quintessential exercise of discretion and that the principles in House v The King will apply. The principles that govern an award of costs are well established. In Latoudis v Casey, Mason CJ wrote:

It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

	His Honour the Chief Justice further stated:

Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.

McHugh J said:

The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. 

[75]	The Respondents early indicated their intention to seek a costs order against Mr Anters.  I am minded to entertain that application for costs in this matter.  

[76]	In making this decision, I note the relevant legislative provisions.  Section 2 of sch 2 of the IR Act provides that, for proceedings brought under the AD Act, the default position is for each party to bear its own costs.  

[77]	However, a departure from this practice may be exercised at my discretion, having regard to circumstances where "the interests of justice" would require an order for costs to be made.   Section 4 of sch 2 lists circumstances that may inform any decision as to whether an order for costs may be made.

[78]	Having considered those relevant legislative provisions, together with the circumstances of this case, I will disturb the usual practice so prescribed.

[79]	I consider that Vice President O'Connor's conclusion that a costs order ought be made in Dawson is most apt in the circumstances of this case also (emphasis added):

[23]	Notwithstanding the various submissions made by the Respondent and efforts made to explain to the Applicant the situation in which he was placed, the Applicant continued on an erroneous path. Even on the hearing of this application for costs, the Applicant continued to rehearse submissions which had failed in respect of the substantive application. 

[24]	In exercising the discretion, I have considered the fact that the Applicant was self‑represented. However, as the authorities suggest, that alone should not be a basis upon which a successful party should be denied their costs.

[25]	In Northern Territory v Sangare, the High Court observed:

In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person.

	[26]	The Applicant's case was one without any prospects of success. In short, the Applicant failed to identify a breach of the IR Act or an industrial instrument under the Act; and never made an application that would have empowered the Commission to grant the relief sought by the Applicant. Those failures were fatal to his application. 

	[27]	Equally, the application was brought to the Commission on a footing which was misconceived and doomed to fail. The case advanced by the Applicant was on any view of the material, 'so lacking in merit or substance as to be not fairly arguable'. 

[80]	I observe that Mr Anters was warned that costs would be sought against him, that an offer to settle the matter was made quite early in the proceedings by the Respondents, and that the Respondents' offers were reasonable.  I have carefully considered the Respondents' attempts to resolve the matter before incurring further legal expenses, and they certainly weigh in favour of an order for costs. 

[81]	That contrasts with Mr Anters' unreasonable and quite inexplicable claim that the matter ought be resolved for $115,100 plus interest.  Mr Anters would not have been awarded that much even if he had been successful at hearing.

[82]	As it transpired, Mr Anters was wholly unsuccessful at Hearing and his complaints were each dismissed. 

[83]	While Mr Anters is a lawyer and able to represent himself, his investment in the litigation was seemingly confined to his own time and some travel to attend the Hearing of the matter he had initiated.  That is a relatively small outlay for a potential settlement sum, especially given how prolific a litigator Mr Anters had become.  

[84]	In such circumstances, the Respondents' engagement of legal representation was clearly justifiable in order to defend a chronicle of unmeritorious claims.  The First Respondent is a small business in Far North Queensland, and the Second Respondent a valued key employee working within it.  In the period between June 2021 and May 2023, it has cost the Respondents in the vicinity of $48,000 in legal fees.  Self-evidently, the legal costs of these proceedings are a significant burden on innocent parties.  Having triumphed in the face of Mr Anters' shake down, it is just and reasonable that the Respondents be so reimbursed.

[85]	Mr Anters wasted the Commission's time, and caused the Respondents unnecessary expense, on several occasions.  

[86]	I have earlier observed that Mr Anters' evidence meandered around matters only tangentially related (if at all) to the Respondents.  That was later owned by him in his costs submissions.  

[87]	With respect to Mr Anters' interlocutory application, he withdrew his disclosure request for the first set of documents only after the Respondents' submissions were required.  While Mr Anters downplayed that inconvenience because "the Respondents' submissions were just 4 pages", not only had I directed a limit of 5 pages for each party but an email from Mr Anters dated 30 October 2021 was produced in which the same material had earlier been sought and refused by Industrial Commissioner Dwyer.  

[88]	Then there was the issue as to where the Hearing would be held.  Mr Anters presented that as a difficulty created by the Commission – and suggested the parties were invited to make submissions about the preferred Hearing location.  In fact, "Wishart, QLD" had been listed as Mr Anters' location on the referral to the Commission.  At a Mention before me on 13 April 2022, Mr Anters explained when questioned that "… at the time of making this application to the Commission, I did not have any permanent address, so I provided one of my friend's address as a contact address."  That was the reason Mr Anters was first thought to reside in Brisbane.  Having established Mr Anters did not live in Brisbane, I explained at the Mention why I thought it fairest for the Hearing to be held in Cairns, concluding "… unless there's a good reason why not Cairns, or unless the parties can agree to have it in Brisbane, then I think the default would be Cairns for those reasons."  I asked the parties to discuss the matter after the Mention and "… if there is agreement between the two of you that it's Brisbane and not Cairns, you should let us know via the industrial registry."  On 22 April 2022, Mr Anters filed submissions in support of a Hearing being held in Brisbane.  A response from the Industrial Registry was provided to the parties on 27 April 2022 with the reminder that "Commissioner McLennan refers the parties to comments at page 12 of the transcript where she has encouraged the parties to discuss the Hearing location and resolve it by agreement if possible and where that was not possible, Commissioner McLennan indicated the default would be Cairns for the reasons she outlined at the Mention."  On 4 May 2022, the Respondents submitted reasons why Cairns ought be the Hearing location.  At its highest, all that was advised was that Mr Anters and Mr Hayward have a simple conversation about the Hearing location – and if they could not agree, the default would be Cairns.  No more than that was either invited or required.

[89]	Mr Anters' second witness contributed no relevant evidence.  While Mr Anters submitted that was not in his control, it surely would have been revealed in the outline of evidence required to be served for each witness prior to the Hearing.  Although the evidence of Mr Arun Rajan took just 14 minutes before it was clear that his recount was just a general backgrounder on his job search experience, with absolutely no reference to the Respondents in the matter at hand, it nonetheless contributed to the scheduling of a two-day Hearing rather than one.  That could have been avoided.

[90]	While Mr Anters has used his costs submissions as a vehicle to reagitate some aspects of my earlier Decisions that he found disappointing, fundamentally he did not appeal them.

[91]	Mr Anters stated that he could not have known his action would fail, as the Commission's finding differed from the QCAT decision in Willmott. However, I note that the differences between the circumstances in this case and Willmott were explained to him by Mr Hayward, both in early correspondence and then in the Respondents' Outline of Argument filed 29 March 2022.  That was well before the Hearing was held on 10 November 2022.

[92]	Mr Anters submitted that he could not have known his case would not succeed because he had not known why the Respondents asked to check candidates' work rights at the time it did.  Once again, that was comprehensively explained in the Respondents' Outline of Argument filed 29 March 2022 - well before the Hearing was held on 10 November 2022.

[93]	On two occasions, the Respondents offered to pay Mr Anters a sum on a commercial basis to avoid the further costs of litigation, while clearly articulating the reasons why that ought be accepted.  The Respondents gave Mr Anters sufficient time to consider their offers and put him on notice that if his cause failed in the Commission, the Respondents would "use this letter to seek and order that you pay their legal costs of those proceedings on the indemnity basis."  Mr Anters imprudently refused that offer, in spite of Mr Hayward's accompanying explanation as to why the Complainant's prospects of success were in significant doubt.  Not only did Mr Anters refuse the Respondents' offer – but he proceeded to ‘up the ante' just a fortnight later by inexplicably raising the remedy he sought to $115,100 (up from $13,950 less than a year ago).

[94]	For all the reasons above, I will exercise my discretion to award costs to the Respondents.  

The amount of costs

[95]	My consideration now turns to the appropriate amount of costs to be awarded.

[96]	The Respondents argued costs should be awarded against the Complainant and asked the Commission to order that:

(a)	the Applicant pays the Respondents' costs fixed on the standard basis in the amount of $31,744.18;

(b)	alternatively, the Applicant pays the Respondents' costs to be assessed on the standard basis;

(c)	alternatively, the Applicant pays the Respondents' costs fixed on the indemnity basis in the amount of $43,736.38;

(d)	alternatively, the Applicant pays the Respondents' costs to be assessed on the indemnity basis.

[97]	The Commission is empowered to award an amount of costs. The precise quantum of the costs awarded is discretionary, though discretion must be exercised judicially. The amount of costs may be informed by the Magistrates Court scale and other relevant matters. Costs should be fixed if possible.  It is open to the Commission to make an order which best fits the circumstances of the case.

[98]	The affidavit of Mr John Hayward, a lawyer employed by WGC Lawyers, was filed on 2 June 2023.  He swears that:

During the course of these proceedings and over the period from 16 June 2021 – 25 May 2023, the Respondents have incurred:

(a)	solicitor's costs of $39,974.00 (including GST) for the costs of:

(i)	Responding to the initial complaint in the Queensland Human Rights Commission; 

(ii)	Attending a pre-conciliation meeting by telephone in the Queensland Human Rights Commission on 28 July 2021; 

(iii)	Attending a conciliation conference in the Queensland Human Rights Commission on 3 August 2021; 

(iv)	Attending several conferences before the Queensland Industrial Relations Commission, including on 12 October 2021, 12 November 2021, 4 October 2022;

(v)	Filing substantive formal documents, outlines, lists of documents, lists of witnesses, outlines of argument and other Forms in the Queensland Industrial Relations Commission;

(vi)	Filing substantive formal documents, outlines, lists of documents, lists of witnesses, outlines of argument and other Forms in the Queensland Industrial Relations Commission;

(vii)	Filing substantive submissions in relation to the Applicant's request for disclosure;

(viii)	Filing substantive submissions in relation to the Applicant's application for a change of venue of the trial;

(ix)	Various attendances upon the Respondents;

(x)	Attending a conference with the Respondents and Counsel to prepare for the trial;

(xi)	Instructing Counsel at trial; and 

(xii)	Preparing written submissions in relation to costs.

(b)	counsel's fees of $7,241.68 (including GST) for the costs of:

(i)	advices;

(ii)	a conference with the Respondents;

(iii)	preparation for the trial;

(iv)	attendance at the trial; and

(v)	drawing written submissions.

(c)	disbursements and outlays of $518.10 for the costs of photocopying, postage, telephone calls and document scanning.

[99]	Mr Hayward's affidavit sets out the basis upon which he has calculated the respective costs amounts to be $31,744.18 on the standard basis - and $43,736.38 on the indemnity basis.

[100]	The Respondents submitted that:

In circumstances where the Respondents made a genuine offer of settlement, which was ultimately better than the result achieved by the Applicant following the hearing, the Respondents should be indemnified for their costs of defending this entire action.

One purpose of costs orders is to encourage the compromise of claims, but also to indemnify or protect those parties who genuinely seek to resolve litigation on reasonable terms.

[101]	As Justice Davis observed in Golding v Sippel and The Laundry Chute Pty Ltd (No. 2):

[30]	Although the test to apply is the statutory one under paragraph 4 of Schedule 2 of the IR Act, guidance can be taken from those cases that have considered the grant of costs on an indemnity basis in general civil litigation.

[31]	There are numerous decisions where circumstances have been identified justifying an award of costs on an indemnity basis.  In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Colgate Palmolive Co v Cussons Pty Ltd, attempts were made to identify categories of cases where the making of an order for indemnity costs is justified.  However, the central principle guiding the exercise of the discretion was stated by the New South Wales Court of Appeal in Rosniak v Government Insurance Office and adopted by the Court of Appeal in Di Carlo v Dubois:

		"[38]	… The court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation.  This is because party and party costs remain the norm, although it is common knowledge that they provide inadequate indemnity.  Any shifts to a general or common rule that indemnity costs should be the order of the day is a matter for the legislature or the rule maker."

[102]	The Respondents also referred to the relevant principles for considering whether indemnity costs are justified, as set out in Colgate Palmolive Co v Cussons Pty Ltd:

(a)	misconduct that causes loss of time to the court and the other party;
(b)	the making of allegations which ought never to have been made;
(c)	the undue prolongation of a case by groundless contentions;
(d)	the imprudent refusal of an offer to compromise.

[103]	The Respondents submitted that has been met in these circumstances because:

	The Applicant's case was characterised by:

(a)	unnecessary claims;
(b)	unnecessary material, arguments and an entirely irrelevant witness which caused significant wastage of time and costs to both the Commission and the Respondents;
(c)	the complete failure of the Applicant's case on points of law about which the Applicant, as a solicitor, should have been clearly aware;
(d)	the imprudent refusal of the offer by the Respondents to discontinue these doomed proceedings without adverse costs.

[104]	The Respondents submitted that relevant factors in determining whether the rejection of an offer was unreasonable or imprudent had each been met in this case because:

(a)	the offers were made at the earliest possible stage of the proceedings.  The offers were first made within a few months of these proceedings being commenced, but at a time where the Applicant was in a position to assess the strength of the Respondents' case. The Applicant, as a lawyer, was in a clear position of being able to assess the merits of the Respondents' offers;
(b)	the Applicant was twice given a reasonable period of time in which to consider the offers, being 14 days from the date of service of each offer;
(c)	the compromise offered by the Respondents was significant because the Respondents were not only offering a payment to the Applicant but were also offering to forego payment of their own costs;
(d)	the Applicant imprudently refused the offers even though the Applicant's prospects of success were in significant doubt at the time of service of the offer;
(e)	the offer was expressed in a clear manner;
(f)	the offer was clearly stated to be made in contemplation of making an application for indemnity costs.

[105]	The Respondents submitted "this is an appropriate matter in which an order for indemnity costs ought to be made" in all the circumstances because:

(a)	the Applicant has obtained an outcome which is less favourable than the offer made by the Respondents;
(b)	a purpose of section 4, Schedule 2 Industrial Relations Act 2016 is to protect those parties who genuinely seek to resolve litigation on reasonable terms (especially at an early stage);
(c)	the Applicant has imprudently refused an offer to settle; and
(d)	the Respondents unequivocally advised the Applicant of their intention to apply to the Commission to order costs on the indemnity basis.

[106]	Mr Anters was aware the Respondents intended to seek costs of the proceeding on an indemnity basis since 20 August 2021.

[107]	I accept the Respondents' legal costs were for a reasonable amount and reasonably incurred for defending a discrimination claim of this type.  Mr Hayward's affidavit has comprehensively set out all the relevant matters.  As I have earlier noted, the Commission must fix costs if possible.

[108]	For all the reasons above, I find the circumstances of this case require an order that Mr Anters pays the Respondents' costs, fixed on an indemnity costs basis, in the amount of $43,736.38.

[109]	I order accordingly.

Orders:

That, within 28 days, Mr Dawn Anters is to pay the Respondents $43,736.38 as costs incurred in these proceedings.