Bundaberg Friendly Society Medical Institute Limited v Wilson [2026] QSC 1

[1] The issues in this proceeding have resolved. The only issue that remains is the costs of the proceeding. Both parties have filed written submissions. Both seek their costs. The costs issue is to be decided 'on the papers'. It is necessary to examine the factual background and the course of the proceeding because there has been no decision on the merits.

[2] The applicant, Bundaberg Friendly Society Medical Institute Limited ('BSFMI' or 'the hospital'), operates a 142-bed private hospital in Bundaberg West. It has an emergency department, oncology, cardiac care and five operating theatres.[1] BFSMI has approximately 500 employees. Between 16 January and 23 June 2025 one of those employees was the respondent, Ms Coie Wilson. Ms Wilson was employed by the hospital as Director - Clinical Services. It was a relatively senior position. Ms Wilson reported directly to Ms Michelle Thompson, the hospital's Chief Executive Officer ('CEO').

[3] The employment did not go well. Ms Wilson says that during her employment with the hospital she identified and reported significant systemic regulatory and clinical non-compliance and governance issues to the CEO and the board.[2] Ms Wilson says the hospital summarily dismissed her on 23 June 2025, and at a meeting which had been convened for the purpose of discussing professional indemnity insurance issues in relation to employees being directed to work outside of their scope of practice.[3] The termination letter signed by Ms Thompson also gave Ms Wilson one month's notice to vacate the accommodation supplied as a part of her salary package.

[4] The letter terminating Ms Wilson's employment records that Ms Thompson had continued to observe and provide feedback on a number of ongoing issues, including the tone and content of Ms Wilson's communications with her staff, doctors, Ms Thompson and the board. Ms Thompson also recorded that the hospital had failed a short notice assessment carried out by the Australian Council on Healthcare Standards. Ms Thompson evidently held Ms Wilson at least partially responsible for that result.[4]

[5] A short time after her employment was terminated Ms Wilson made:

(a) a notification to the Office of the Health Ombudsman regarding alleged issues at the hospital regarding clinical governance concerns, risk management, compliance issues and patient safety;

(b) a disclosure to Australian Charities and Not-for-profits Commission regarding alleged governance breaches, non-compliance with directors' duties, potential conflicts of interest, and financial management issues at the hospital;

(c) what she describes as a whistleblower misconduct notification to the Australian Securities and Investment Commission about governance breaches and issues including non-compliance with directors' duties, potential conflicts of interest, and financial management of the hospital.

[6] Ms Wilson supported those notifications and disclosures by providing access to supporting documents of the hospital that she had retained by way of hyperlink to her One Drive account.

[7] On 10 July 2025 the hospital's solicitors, Minter Ellison,[5] wrote to Ms Wilson, requiring her to stop contacting the hospital staff seeking or sharing confidential information and requiring her to delete any confidential information stored on her mobile phone or any other personal device within 14 days. Ms Wilson says that, on receipt of this letter she deleted many of the hospital's documents from her mobile phone, Microsoft Outlook, Office 365 accounts and iCloud. She did not delete those documents that were relevant to her reporting to the three bodies[6] or to her Fair Work Commission proceeding. Those documents remained within her OneDrive electronic storage.

[8] On 14 July 2025 Ms Wilson filed a wrongful dismissal application in the Fair Work Commission. That application was served on the hospital 10 days later, on 24 July 2025. Ms Thompson says that on that same day she and her executive assistant examined a laptop used by Ms Wilson.[7] Ms Thompson says she became concerned when she saw that there was a spreadsheet in OneDrive linking to numerous hospital records that had been updated after Ms Wilson's termination. About a week later, the hospital retained forensic IT investigators, NSB Cyber, to conduct a review.

[9] On 27 August 2025 NSB Cyber issued their report to the hospital's solicitors, Colin Biggers & Paisley. For present purposes it is not necessary to delve into the contents of the report. However, one opinion expressed in the report is that Ms Wilson gained unauthorised access to the hospital's 'IT Environment' for 37 days from 3 June to 10 July 2025. It is unclear what the author of the regards as unauthorised access because Ms Wilson is said to have had unauthorised access both during her term of employment and after the termination. It is hard to see why Ms Wilson would not be authorised to access the hospital's IT environment during the course of her employment.[8]

[10] In any event, the receipt of that report prompted the hospital to move quickly. Colin Biggers & Paisley wrote a lengthy letter to Ms Wilson on the same day the report was received. The letter demanded both the delivery up and deletion of all confidential information held by Ms Wilson. Colin Biggers & Paisley also demanded, by 5 pm the next day, a statutory demand that explained Ms Wilson's understanding of her duties regarding confidential information and, in some detail, an account of what has happened with the confidential information that is or has been in her possession. The firm advised that they would commence proceedings and seek an urgent hearing if Ms Wilson failed to comply with their demands.

[11] Colin Biggers & Paisley's letter attached a copy of the NSB Cyber report. That report comprises more than 425 pages. The attachments to that report include more than 350 pages of computer logs that, at least in the versions filed in court, are in a font so small that they are illegible. Appendixes F and G, comprising about 360 pages, appear to be both illegible and irrelevant because it seems to merely record personal use of the laptop rather than misuse of confidential information.[9]

[12] In any event, having spent about five weeks obtaining the report, the demand that Ms Wilson respond in 25 hours was somewhat intemperate. Ms Wilson immediately sent an email to her then solicitors asking for advice on how to respond. And, as it happens, Ms Wilson's Fair Work Commission proceeding was listed for a conciliation the next day - 28 August 2025. Ms Wilson says she raised the need to respond with her solicitors twice the next day. That evening she chased them up by email and text message. Eventually, at nearly 9 pm that evening - after the deadline had passed - Ms Wilson's solicitors advised her that they had requested an extension until close of business on 1 September 2025.

[13] On Friday 29 September Colin Biggers & Paisley consented to an extension - but only to 9 am on Monday 1 September 2025. They said they held instructions to file the application if this deadline was not met. Ms Wilson's solicitors then left it to her to prepare the statutory declaration and provided her with perfunctory advice.[10] By 6 pm that evening Ms Wilson had provided a draft of her statutory declaration to her solicitors. Her email said: "I am really unsure of what I should state and am seeking your advice". On Sunday 31 August 2025 Ms Wilson followed up her solicitors by email and enclosed her suggested response and supporting documents. Then, early on Monday 1 September 2025, Ms Wilson's solicitors sent a list of documents to Colin Biggers & Paisley. The list comprised screenshots of Ms Wilson's OneDrive to which the solicitors had read-only access. Ms Wilson says that she did not give the solicitors instructions to do this, and she did not find out about it until the following day. Ms Wilson says she did not give instructions for her solicitors to send a further email that day giving an undertaking that she would not take any action on the documents until the hearing.

[14] Ms Wilson continued to work on her statutory declaration and sent the latest version to her solicitors about 20 minutes before the deadline expired at 9 am. The solicitors appear not to have responded to her apart from describing the deadline as an intimidation tactic. In the middle of that day Ms Wilson received a draft email from her solicitors. She was expecting that email to be part of a discussion with her solicitors, but such a discussion did not eventuate. Ms Wilson's solicitors sent an email to Colin Biggers & Paisley attaching the same list of documents that had been sent previously later that day and stated that:

(a) they had received electronically a list of documents which they attached;

(b) they would arrange for a courier to deliver a USB containing those documents to Colin Biggers & Paisley's office;

(c) Ms Wilson had confirmed that she had none of the hospital's confidential information in her possession or control;

(d) Ms Wilson was preparing her statutory declaration.

[15] Ms Wilson says she was not aware of that email until the following day. In fact, up to this point the impression gained is that Ms Wilson needed advice and assistance with her response, but her solicitors seemed to be acting without much reference to her.

[16] Later that day, Ms Wilson's solicitors advised her that the hospital had filed this proceeding and that it would be necessary for her to brief a barrister, and for that purpose she needed to pay $5,500 into trust.

[17] Perhaps not surprisingly, Ms Wilson and her solicitors then parted ways. Then Ms Wilson signed two statutory declarations in what she describes as "panic and distress". She dealt with the hospital's barrister directly. She appeared for herself when the application came before the court urgently on 3 September 2025. On that occasion, on Ms Wilson's undertaking not to deal with the records of the hospital, I adjourned the application to 11 September 2025 with costs reserved. Counsel for the hospital did not consent to the adjournment. The hospital sought to proceed with its originating application.

[18] The material relied on by the hospital was an affidavit of Mr Vougdis exhibiting the NSB Cyber report; Ms Thompson's affidavit of about 55 pages; an affidavit of Ms Remedi (which also exhibited the NSB Cyber report); and a five-page outline of submissions from counsel for the hospital. In all about 1000 pages of material was served on 2 September for an urgent hearing on 3 September 2025.

[19] It should also be observed that the hospital sought orders requiring delivery up of confidential information, destruction of confidential information, an order restraining the use of confidential information, an affidavit explaining the use of confidential information, inspection of electronic devices, and costs. However, by the time of the court hearing the principal concern was what Ms Thompson described as the 'Impacted Dataset' found on Ms Wilson's OneDrive. There was no evidence that Ms Wilson was threatening to or proposing to make those documents public. The context was that Ms Wilson was using or had used those documents in her complaints and in her Fair Work Commission proceedings. The parties did not make any submissions regarding the possibility that Ms Wilson's disclosures were capable of falling within the whistleblower protections in s 1317AAA of the Corporations Act 2001 (Cth), s 341 of the Fair Work Act 2009 (Cth) or s 275 of the Health Ombudsman Act 2013 (Qld).

[20] On 5 September 2025, two days after the hearing, Ms Wilson engaged new solicitors, Hall Payne Lawyers. Oddly, whilst Hall Payne Lawyers were briefed to communicate with their counterparts, they were not briefed to appear in the proceedings.

[21] There were then communications between the two firms of solicitors. That resulted in some documents held by Ms Wilson being uploaded to a service called Mimecast, some destruction of remaining documents and some discussion about proposed orders and a proposed expert inspection of Ms Wilson's electronic devices. However, the solicitors were unable to agree on consent orders and so Ms Wilson acted for herself when the proceeding returned to court on 11 September 2025.

[22] The hospital again sought relatively wide orders for delivery up, destruction and a restraint. They alleged a falsity in Ms Wilson's first statutory declaration.[11] Instead, orders were made providing for an expert inspection of Ms Wilson's devices on 15 September 2025. Ms Wilson was willing to and did cooperate in that process. The inspection did not go smoothly. Ms Wilson was accused of not complying with the court order at one point. The hospital's solicitors have not persisted with that allegation.

[23] That agreed inspection was evidently designed to resolve the issues and to satisfy the hospital that Ms Wilson had complied with the demands to delete all confidential hospital material. So far as Ms Wilson was concerned, the IT expert retained by the hospital had left their meeting satisfied that she retained no confidential documents on her devices.

[24] But, on the same day, the hospital issued a media release.[12] The media release featured a photograph of Ms Wilson. The text of the media release is as follows:

A former employee of the Friendly Society Private Hospital, Ms Coie Jeannette Wilson, is being subject to legal proceedings in the Queensland Supreme Court for the unauthorised access to and theft of data from the Friendly Society Private Hospital.

CEO Ms Michelle Thompson said, 'This is a serious breach. The incident has been reported to the Australian Cyber Security Centre, the Office of the Health Ombudsman and AHPRA.'

'Ms Wilson's actions undermine the Nursing and Midwifery Board of Australia Code of Conduct and acceptable Standards of Practice expected of nursing staff at the Friendlies.'

The hospital commenced Supreme Court proceedings against Ms Wilson to seek the return and destruction of an extensive volume of commercially sensitive documents which it asserts have been copied or retained in breach of Ms Wilson's legal obligations.

The hospital also seeks orders restraining Ms Wilson from further using, disclosing, copying or retaining any confidential information she has taken from it.

On 11 September 2025, the Court ordered that Ms Wilson was to provide any electronic device she uses to access her OneDrive account, any storage devices she has used in the past five years, emails and cloud storage services for forensic inspection by an independent IT expert.

The inspection is taking place at 9 am today (Monday 15 September 2025) in Bundaberg. The purpose of the inspection is to identify any confidential information in Ms Wilson's possession and delete it.

The court also ordered Ms Wilson to file and serve an affidavit verifying that she has permanently deleted and/or destroyed any confidential information in her possession.

The hospital's proceeding is back before the Supreme Court on 29 September 2025 for directions about any further relief the hospital may choose to pursue against Ms Wilson.

Ms Wilson commenced employment at the Friendlies on 16 January this year and was terminated on 23 June."

[25] On no basis can that press release be regarded as a fair report of the proceeding. The unauthorised access to and theft of data is reported as if they are the proven facts. No mention is made of the fact that Ms Wilson was largely cooperative and had consented to the court orders. The press release does not record Ms Wilson's contention that she retained the documents so that she could report her concerns about clinical governance, risk management, compliance issues and patient safety as well as non-compliance with directors' duties, potential conflicts of interest, and financial management issues at the hospital. The press release does not record even the existence of complaints by Ms Wilson or the fact of the proceedings in the Fair Work Commission. There is also an odd flavour to the press release to the effect that the court was responding to the hospital's stipulations.[13]

[26] The press release has been carefully drafted. For example, one of the concerns Ms Thompson expressed in her affidavit was a concern about the dissemination of patient-sensitive information (as well as commercially sensitive information). That concern did not make it into the press release. Instead, the problem was portrayed as a data breach.

[27] The hospital had emailed a copy of the press release to the CEO of her new employer. Her new employer supplied Ms Wilson with a copy of that press release. Ms Wilson was stood down by her new employer a few days later. Ms Wilson was informed by her new employer that she could not work for that employer or in any position in any Queensland Health facility.

[28] The press release has also been used as a source for an article published in the newspaper Bundaberg Today.

[29] Ms Wilson has not been able to find work in the Wide Bay region. She is restricted to private work because she has apparently been banned from being employed by Queensland Health - seemingly because of a quite unfair press release issued by the hospital. Ms Wilson has had only sporadic casual work and is struggling financially.

[30] Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR') sets out the general rule about costs:

"(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise."

[31] Costs are not awarded to punish an unsuccessful party; the primary purpose of an award of costs is to indemnify the successful party.[14] And so the principle is that, if the litigation had not been brought or defended by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

[32] Where there has been no hearing on the merits it may be difficult to work out whether, in reality, there is a successful party. The existence of the broad discretion 'to order otherwise' means that there may be circumstances where a party can be regarded as the successful party even though there has been no hearing on the merits. That may be the case where a party has, for example by means of interlocutory orders or agreement, achieved what can be regarded as 'success' in the litigation. But a cautious approach is warranted here because there are limits to the capacity of the parties and the court to see how the hypothetical case would have proceeded.[15]

[33] Often the court will consider whether the parties have acted reasonably in commencing and responding to the proceedings. McHugh J explained the principles in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin:

"In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action."[16]

[34] The hospital argues that it should have an order for costs against Ms Wilson for these reasons:

(a) the 'event' or issue in this proceeding was whether Ms Wilson retained the hospital's confidential information and, if so, what relief the hospital should have;

(b) Ms Wilson has admitted in her affidavit filed 1 October 2025 that she retained the hospital's documents after it commenced the proceeding and did not delete them until 9 September 2025;

(c) this is despite the hospital requesting, as far back as 10 July 2025, that she delete its confidential information;

(d) the proceeding has been effectively determined by the orders made on 11 September 2025 and Ms Wilson's compliance with them as set out in her affidavit affirmed on 23 September 2025 and filed 1 October 2025;

(e) while the hospital has not obtained orders for all of the relief it sought in its originating application, the orders made on 11 September 2025 effectively give it the relief of an order for inspection and an affidavit verifying Ms Wilson's deletion and destruction of the hospital's confidential information in her possession;

(f) the hospital has been successful in the 'event' and should therefore have its costs of the proceeding.

[35] In my view it is overly simplistic to say that the central issue in this proceeding was, or was going to be if the case proceeded, whether Ms Wilson retained the hospital's confidential information and, if so, what relief the hospital should have. Ms Wilson never contested that she held the hospital's records. Ms Wilson said that she held those records for the purposes of her complaints to the Office of the Health Ombudsman, the Australian Charities and Not-for-profits Commission and the Australian Securities and Investment Commission, as well as her proceedings in the Fair Work Commission. Whilst the hospital portrayed there being a risk of dissemination of patient details, staff information and commercially sensitive information to 'third parties',[17] the only real prospect was that Ms Wilson would use the information for the limited purposes which she explained.

[36] The context is important. The hospital brought its application on very short notice. The material was voluminous. Even in that situation, Ms Wilson was cooperative. To some extent her responses were a little haphazard. But the evidence is that Ms Wilson's previous solicitors did not provide her with the clear advice she needed nor with the assistance she required in responding to the application. Ms Wilson's previous solicitors seemed to embark on their own parallel dialogue with the hospital's lawyers.[18]

[37] The hospital contends that the proceeding has been effectively determined by the orders made on 11 September 2025. But those were orders that Ms Wilson agreed to.

[38] And so, the hospital argues that it is the successful party and so ought to have the benefit of the general rule. But the success the hospital achieved was not by reason of any decision of the court. It was a success achieved because Ms Wilson agreed to provide the documents. The hospital was entitled to access the processes of the court as a matter of urgency in order to ensure that its rights were protected. But securing rights on an interlocutory basis is not necessarily the same thing as success in litigation. Here the court has not had the benefit of any submissions as to whether Ms Wilson was entitled to hold the documents pursuant to the various whistleblower protections mention above.

[39] In my view there is not sufficient basis to regard the hospital's position as equivalent to that of the successful party in litigation. The hospital sought to protect its rights through the litigation process. Even though she was burdened by an avalanche of material that was required to be considered urgently, Ms Wilson cooperated in that process. The result was a solution on an interlocutory basis without the need for a decision on the merits.

[40] As explained, there is a need for caution in deciding whether either party can be regarded as the successful party. The dispute was in its infancy. The issues had not been crystallised; the evidence was incomplete and untested. And, in the circumstances, the court cannot find that Ms Wilson has acted so unreasonably that the hospital should obtain the costs of the action.

[41] Then there is the press release. The hospital was perfectly entitled to exercise its right to free speech. But the hospital chose to publicly portray Ms Wilson as having dishonestly stolen documents. No mention was made that the proceedings were interlocutory and that there had been no hearing on the merits. No mention was made that Ms Wilson had been cooperative and had consented to the court orders, let alone that she argued that she had retained the documents for a specific purpose.

[42] In my view, the hospital's press release sought to widen the dispute into the public forum and was conduct connected with the proceeding that was unfair and unreasonable. It has had serious consequences for Ms Wilson in circumstances where no wrongful conduct has been proved. That is a further reason for refusing costs.

[43] Counsel for Ms Wilson contends that the hospital's application was not certain to succeed, and Ms Wilson has had more success than the hospital in the proceedings. It is true that the hospital's application was not certain to succeed. But certainty is rarely present in litigation, and I do not accept that the absence of certainty is a reason for awarding costs against the hospital.

[44] Similarly, fine assessments as to whether one party or the other achieved more or less success during the separate hearings is not, in this case at least, a proper basis for an award of costs. To measure success in that way has an element of artificiality to it.

[45] Counsel for Ms Wilson also contends that the hospital's application was unreasonably and prematurely brought, and unreasonably continued. The application was certainly brought urgently. However, at trial, the hospital's concerns may have been shown to be legitimate or illegitimate. That is the reason for the caution referred to above.[19]

[46] Counsel for Ms Wilson relied on the press release as a basis for awarding costs against the hospital. It is a powerful argument. However, parties are entitled to fight their battles in the courts as well as in the press. In any event, the consequences of the press release are largely because of what appears to be an unreasonable response to the press release by others in the health sector. If it is true that Ms Wilson has been, in effect, 'blackballed' because of the unproven allegations in the press release does those in the sector no credit. Of course, that itself is an unproven allegation.[20]

[47] There is an additional problem for Ms Wilson's application for costs. A substantial line of case authority holds that the costs indemnity rule does not recompense a successful litigant, who is not represented by a lawyer, for work done in preparing his or her case; instead, a successful unrepresented (or 'lay') litigant can recover only out-of-pocket expenses.[21] Here, Ms Wilson has not been legally represented in the proceeding and so has not incurred legal costs. Even now, no notice has been filed by solicitors acting for Ms Wilson although written submissions on costs were prepared by counsel acting on her behalf. In short, there is only limited scope for an award of costs in favour of Ms Wilson.

[48] On balance the appropriate order is that there be no order as to costs.

[49] Ms Wilson's counsel points out that prior to the hearing on 29 September 2025, Ms Wilson's lawyers proposed that there be no order as to costs. However, the hospital pressed its application for costs. As that application has failed, it is argued that Ms Wilson should have her costs of responding to the hospital's costs application on the basis that costs follow the event.

[50] As a general principle, it is undesirable that the court should embark on a consideration of the costs of costs applications. In a case like this where there was no finding on the merits, there is no sufficient reason for separately dealing with the costs of the costs argument.

[1] Ms Michelle Thompson's affidavit of 2 September 2025 at [3].

[2] Ms Coie Wilson's first affidavit at [4].

[3] Ms Coie Wilson's first affidavit at [5].

[4] Ms Michelle Thompson's affidavit of 2 September 2025 at page 32.

[5] Minter Ellison acted for the hospital for workplace/Fair Work Commission issues and Colin Biggers & Paisley acted for the hospital for the claim of a breach of confidential information.

[6] See above, the three bodies are: (1) Office of the Health Ombudsman; (2) the Australian Charities and Not-for-profits Commission; and (3) the Australian Securities and Investment Commission.

[7] In fact, Ms Wilson held two hospital laptops, although it appears that both had been returned by this time (at the latest).

[8] In its submissions the hospital appears only to complain about Ms Wilson's access to the hospital's records after the termination of her employment.

[9] The proceeding did not involve any allegation by the hospital that Ms Wilson had breached her employment contract by using the laptops for personal use. In any event, by the time the proceedings were commenced both laptops had been returned.

[10] "Generally where a disclosure has been made to a regulator on the basis that there is a concern regarding regulatory breaches or unlawful conduct, such disclosures will be protected": Ms Wilson's first affidavit at [26]. Ms Wilson has waived privilege and provided copies of her communications with her solicitors in order to explain the delays

[11] This concerned the supply of a USB to Ms Wilson's former solicitors.

[12] The media statement is dated 15 September 2025 and was presumably issued then or shortly afterwards. Ms Wilson's evidence is that she did not find out about it until her new employers brought it to her attention on 18 September 2025.

[13] See, for example, the second-last paragraph of the press release.

[14] The principle derives from Harold v Smith [1860] EngR 516; (1860) 157 ER 1229, 1231. See also the discussion in Dal Pont, Law of Costs (LexisNexis, 5th ed, 2021), [7.5] (Dal Pont).

[15] The evidence may not be complete, or it may not have been tested and even the issues may change.

[16] [1997] HCA 6; (1997) 186 CLR 622 at 625.

[17] See, for example, Ms Michelle Thompson's first affidavit at [13].

[18] It must be acknowledged that there is no evidence from the previous lawyers.

[20] Ms Wilson's evidence is that she was called to a meeting with Mr Cameron Duffy, the Executive Director of Nursing and Midwifery at Bundaberg Base Hospital and Ms Melissa Wakefield the Nursing Director of Patient Flow and Emergency at Bundaberg Base Hospital on 19 September 2025. At that meeting Ms Wilson says that she was told that she had been stood down and that it had been decided by Bundaberg Base Hospital and Wide Bay Hospital and Health Service that for an indefinite time she could not work at Bundaberg Base Hospital or any Queensland Health facility in any position. Of course, neither Bundaberg Base Hospital or Queensland Health are a party to the proceeding. The allegation is untested.

[21] See Dal Pont, Law of Costs, 5th ed, at [7.24]. The principal case relied on is Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403.