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QIRC awards costs against employee’s representative

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The Queensland Industrial Relations Commission has taken the rare step of ordering that an employee’s representative pay over $9,000 to the State for its legal costs.

Mr Gareth Rogers, an admitted solicitor who works for an organisation known as ‘Reignite Democracy Australia’, represented a former Queensland Health employee who had been dismissed for failing to comply with the requirement to receive COVID-19 vaccination.

An application for reinstatement was filed by the employee’s representative 15 days outside the time limitation period. Commissioner Dwyer noted the application had the same characteristics of a number of other misconceived applications involving applicants who had not complied with various employer directives compelling vaccination against COVID-19, and which had already been dismissed by the Commission.  At the first mention of the matter in September 2022, the employee’s representative was advised the Commission would require the employee to address a preliminary issue whether further proceedings were necessary or desirable in the public interest within the meaning contemplated by section 541(b)(ii) of the Industrial Relations Act 2016 (IR Act).

Section 545(2)(b) of the IR Act permits the Commission to order costs against a representative where the 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.

In the decision, Commissioner Dwyer refers to a ‘litany of unreasonable acts and omissions’ by the representative, including a failure to file material on time, a failure to attend the Commission, either in person as required or otherwise, and a complete deficiency in the material and submissions filed by the representative. Mr Rogers was warned as early as November 2022 that the Commissioner considered the submissions filed to be so deficient and misconceived that, if the matter proceeded further, the Commission was very much open to a personal costs order against him.

A hearing of the matter was listed for 30 January 2023. Mr Rogers had specifically asked for an oral hearing.

On 28 January 2023 (a Saturday) Mr Rogers attempted to file a request to discontinue proceedings and a notice of withdrawal of appointment. Crown Law asked to be heard on why the Commission should only discontinue the proceedings on the basis the State’s costs were paid by either the former employee or Mr Rogers.

In ordering Mr Rogers pay the State’s costs, Commissioner Dwyer found:

  • The application for reinstatement was so obviously devoid of merit that it was not necessary or desirable in the public interest for the Commission to further deal with it. This was expressly explained to the employee’s representatives on three separate occasions;
  • Mr Rogers had specifically requested a hearing when, as a lawyer, Mr Rogers must have known this would cause more costs to be incurred.
  • Mr Rogers sought the hearing without informed instructions from the former employee. Further, it was clear the former employee was ‘oblivious’ to the Commission’s concerns with her application, having not been informed of them by her representatives.
  • Mr Rogers consistently misconducted himself throughout the proceedings, and continued to do so during the proceedings in respect of costs.
  • On his own evidence, Mr Rogers did not start preparing for the hearing on 30 January 2023, until 27 January 2023. The failure to adequately prepare for a hearing in a timely manner by any representative, let alone a legal practitioner, was inexcusable and plainly an unreasonable act or omission.
  • Mr Rogers’ evidence was, at the very least, unreliable.
  • It was difficult to imagine a set of circumstances more deserving of a costs order. Further, there could be few clearer factual scenarios warranting the exercise of the Commission's discretion to impose a personal costs order on Mr Rogers as the representative.

Given the manner in which Mr Rogers had conducted himself before the Commission, the Commission intends to direct the Registrar to forward a copy of the decision to the Legal Services Commissioner for consideration of Mr Rogers’ suitability to practice as a lawyer.

This decision confirms that a representative of a party may be held personally liable for the costs incurred by their behaviour. The decision may help in restraining the unreasonable acts and omissions by some representatives before the Commission.