INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Lam v Gold Coast Hospital and Health Service (No 2) [2021] ICQ 017	
PARTIES:	ROGER ERIC CHUI CHUN LAM
(appellant)
v
GOLD COAST HOSPITAL AND HEALTH SERVICE
(respondent)	
FILE NO/S:	C/2020/10	
PROCEEDING:	Appeal	
DELIVERED ON:	31 August 2021	
HEARING DATE:	Application determined on written submissions without oral hearing	
MEMBER:	Davis J, President	
ORDER/S:	The respondent’s application for costs of the appeal is dismissed.	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – COSTS – where the appellant was employed by the respondent as a protective services officer – where he was dismissed – where be brought an application to the Queensland Industrial Relations Commission (QIRC) claiming unfair dismissal – where the appellant’s application to the QIRC was dismissed – where the appellant appealed to the Industrial Court – where the appeal to the Industrial Court was unsuccessful – where the respondent applied for costs – whether the appeal was made without reasonable cause – whether it was reasonably apparent to the appellant that the appeal had no reasonable prospect of success	
CASES:	House v The King (1936) 55 CLR 499, cited
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 followed 
Lam v Gold Coast Hospital and Health Service [2021] ICQ 010, related
O’Hara v State of Queensland (No 2) [2020] ICQ 18, cited
Sochorova v Commonwealth of Australia [2012] QCA 152
The Australian Workers’ Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67, related	
COUNSEL:	The application for costs was determined on written submissions without oral hearing
	
SOLICITORS:	The appellant prepared his own submissions 
Minter Ellison for the respondent	

[1]	The Gold Coast Hospital and Health Service (the Health Service) employed Mr Roger Eric Chui Chun Lam as a Protective Services Officer at the Gold Coast University Hospital until he was dismissed on 29 January 2019.  Mr Lam unsuccessfully sought an order for reinstatement from the Queensland Industrial Relations Commission (QIRC).
[2]	The circumstances of Mr Lam’s dismissal are analysed in depth by Deputy President Merrell when rejecting Mr Lam’s unfair dismissal application.  It is unnecessary to consider any of that in depth here.
[3]	Mr Lam appealed the decision of the QIRC to this Court but his appeal was dismissed.  The Health Service applies for an order that Mr Lam pay its costs of the appeal.  
Legal principles
[4]	Section 545 of the Industrial Relations Act 2016 (the IR Act) provides, relevantly: 
“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 …”
[5]	Section 545 operates in this way:
1.	the starting point is that each party bears their own costs;
2.	a discretion arises in the Court to award costs against a party in one of three circumstances: 
(i)	the appeal was made vexatiously; 
(ii)	the appeal was made without reasonable cause;
(iii)	it would have been reasonably apparent to the appellant that the appeal had no reasonable prospects of success; (all these being “the jurisdictional facts”).
3.	if one of the three jurisdictional facts exist then the Court may make a costs order.
[6]	It is unnecessary in the present case to analyse the various cases that have been considered s 545 and analogous provisions in other legislation.  It is sufficient to observe:
(a)	Section 545 primarily gives protection to a party who brings an unsuccessful appeal from the risk of paying costs.
(b)	Therefore, it will be rare that a party will be ordered to pay costs.
(c)	The balancing protection offered to a party who successfully defends an appeal is that costs may be ordered where one of the jurisdictional facts are made out.
(d)	In assessing whether an appeal was commenced “without reasonable cause”, or where there were “no reasonable prospect of success”, the relevant viewpoint is the time the appeal was commenced, not when it failed.
[7]	Mr Lam’s unsuccessful appeal was mounted under s 557 of the IR Act.  The State, in its application for costs, relies on the fact that Mr Lam’s rights of appeal from the QIRC were limited.  That section, and s 565 which is also relevant, provide: 
“557	Appeal from commission
(1)	The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(2)	Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(3)	However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
(4)	If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
(5)	In this section—
commission means the commission, other than the full bench constituted by the president and 2 or more other members.
565 	When leave for appeal must be given 
If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—
(a) 	must give leave if it is satisfied it is in the public interest to do so; and 
(b) 	may not give leave other than under paragraph (a).”
The Health Service’s application for costs of the appeal
[8]	The Health Service, quite properly, does not allege that the appeal was instituted or prosecuted vexatiously.  It submits that either the appeal was instituted in circumstances where there were no reasonable prospect of success and therefore it was commenced without just cause or in circumstances where Mr Lam knew or ought to have known that the appeal had no reasonable prospects of success.  It is not seriously put that Mr Lam did actually know that his appeal was doomed to fail.  The real question was whether that “would have been reasonably apparent” to him.  The test is very clearly an objective one.
[9]	On appeal Mr Lam raised six grounds.  They were: 
“(a)	The Deputy President eered in concluding that the dismissal of the Appellant was not harsh, unjust or unreasonable.
The Appellant believe the conclusion of the dismissal was harsh, unjust and reasonable. This decision support an unfair, incomplete and unreliable investigation that led to the Appellant dismissal which has caused severe financial impact, physical and mental health issues to him and his family . It was also disproportionate to the gravity of the misconduct in respect of which the employer acted.
(b)	The Deputy President eered by finding, contrary to the evidence, that the Appellant had engaged in the misconduct as alleged against him.
The Deputy President found that the Appellant was guilty of the misconduct alleged against him and has not taken into consideration the Appellant employment record. The Appellant does not have any disciplinary issue all throughout his employment for the HHS.
(c)	The Deputy President eered in giving improper weight to the evidence of Mr Matthew Jackson.
Mr Jackson was not an Independent subject matter expert but an employee of the HHS and in a position that he has to support management decision, whose evidence and statements during the investigation differ.
(d)	The Deputy President denied the Appellant natural justice and procedural fairness, and eered at law, by allowing into evidence footage which had not been disclosed to the Applicant prior to the hearing, and which was not relevant to matters in issue in the proceeding.
The footages which had not been disclosed prior to the hearing and the Deputy President allowed into evidence and cross examination over the footages should not have been allowed. This unfairly impacted the Appellant as he was unable to review the footages and prepared for the cross examination. The Appellant believed it affected his ability to give evidence during the hearing. 
(e)	The Deputy President denied the Appellant natural justice and procedural fairness, and eered at law, by allowing Mr Brown to give evidence after being acted as advocate for the Respondent, and after having heard the entirety of the evidence led in the case.
The Appellant believed he was denied natural justice and procedural fairness as Mr Brown could not be cross examined in fairness because he heard all the evidence led to the case. Due to that reason Mr Harding and the Appellant decided not to ask Mr Brown certain questions as he already heard all the evidence. Mr Brown was asked one question about a statement he made in his affidavit but could not substantiate his claim.
(f)	The Deputy President eered at law insofar as it found that witnesses called on behalf of the Respondent were witnesses of credit, and/or that the Applicant was not a witness of credit.
The witnesses that were called by the Respondent based their evidence on the Protective Services Manager Mr Graham Cameron statement. Two of the witnesses have never met or spoken to the Appellant prior to the case at the QIRC. Mr Cameron who built the case against the Appellant was the only person who spoke to him on 9 April 2018 about the incidents and was not a witness in the case whose statement remains untested. All witnesses in this case never had any discussion with the Appellant over the incidents.” 
(emphasis added)
[10]	Grounds (a), (b), (d) and (f) are self-explanatory.  Ground (c) refers to a witness, Mr Jackson.  The case against Mr Lam was that he had used excessive physical force when dealing with patients.  Mr Jackson was called as an expert on when and how patients might be properly restrained, when necessary, by application of force.
[11]	Ground (e) refers to a Mr Brown.  Mr Brown appeared as advocate for the Health Service in the hearing before the QIRC.  That was, as I held on appeal, inappropriate.  He was a witness in the case, he had been involved in the investigation and was, quite frankly, an active protagonist against Mr Lam.
[12]	The Health Service filed submissions in the appeal emphasising that the only appeal which could be mounted as of right by Mr Lam was an appeal based on errors of law or jurisdiction.  That prompted reply submissions by Mr Lam importantly in these terms: 
“4.	It is accepted that an appeal is, without leave, limited to the grounds of the ground of— (a) error of law; or (b) excess, or want, of jurisdiction.
5.	In light of the significant impact on his financial and family situation, and the employer’s own procedural defaults towards the appellant, the appellant seeks leave under CA 557(2) to appeal on any errors raised in this outline which may be characterised solely as errors of fact.”
[13]	Mr Lam in his reply submissions submitted that “misconduct” requires a deliberate departure from accepted standards and that was not open for the Deputy President to find.
[14]	The Health Service submits on the present application that grounds (a), (b) and (f) were in essence complaints about findings of fact.  It asserts that ground (c), which raises arguments as to the weight to be given to Mr Jackson’s evidence “… was a discretionary consideration of the Deputy President.  There was no reasonable basis in the judgment to posit that the discretion miscarried”.  The question of weight to be given to a witness’s evidence is not a discretionary factor but a factual consideration.  That though does not assist Mr Lam.
[15]	The point of the Health Service is that grounds (a), (b), (c) and (f) were not competent grounds of appeal without leave and there was no basis to give leave as, apart from other issues, the public interest required by s 565 of the IR Act was not addressed.
[16]	Mr Lam was represented by an industrial advocate at the hearing in the QIRC but was unrepresented on the appeal to the Court.  As observed by the Court of Appeal in Sochorova v Commonwealth of Australia when considering a costs application under rule 681 of the Uniform Civil Procedure Rules 1999; “because the basis of a costs order is compensatory rather than punitive, the fact that an unsuccessful party is not legally represented or is impecunious or otherwise disadvantaged is not of itself a ground for refusing to make a costs order in favour of the successful party”.  However, the fact that an appellant is unrepresented and therefore may not eloquently frame his grounds of appeal ought not prevent the substance of his complaints on appeal being litigated where the clumsiness of his drafting has not caused any unfairness to the respondent.  
[17]	Mr Lam’s principal ground of appeal was ground (a).  In reality Mr Lam raised two issues under ground (a), namely: 
(i)	the finding was unreasonable, in the sense that no reasonable Tribunal could have made it; 
(ii)	in making the assessment the QIRC misunderstood the legal notion of “misconduct” and if that was made out that was an error of law.
[18]	Ground (b) was really a part of ground (a), as was ground (c) and ground (f).
[19]	Ground (d) complained of a denial of natural justice and procedural fairness which, if made out was an error of law.
[20]	Ground (e) complained that Mr Brown ought not to have represented the Health Service given his involvement as a witness and his involvement in the investigation of Mr Lam.  Mr Lam made out those complaints.  Mr Brown should not have represented the Health Service.  Ultimately, a forensic decision was made by the industrial advocate who appeared for Mr Lam in the QIRC that no objection to Mr Brown appearing would be taken so as not to delay the matter.  The fact that such a forensic decision was made, does not detract from the fact that Mr Lam had legitimate complaint about Mr Brown’s behaviour.  It did though mean that Mr Lam could not succeed on that part of his appeal.
[21]	The appeal was unsuccessful but it is not right to say that Mr Lam brought his appeal without identifying potential appealable errors.  He tried to argue that the finding of misconduct was unreasonable, in the relevant legal sense, he complained about procedural unfairness and he made out a complaint about the conduct of Mr Brown.  Mr Lam raised bona fide concerns about the judgment below, and at least some of them, if made out, were errors of law.  The fact that those complaints, in the end, did not carry the appeal does not mean that it follows that a costs order ought to be made against Mr Lam. 
[22]	The presence of s 545 in the IR Act will mean that costs orders are not often made.  Here, it is unnecessary to formally determine whether the discretion has arisen.  This is not a case where any discretion should be exercised against Mr Lam.
[23]	The application for costs is dismissed.