Rogers v State of Queensland

Fair Work Act 2009 (Cth), s 401

Industrial Relations Act 2016 (Qld), s 316, s 317,

s 541, s 545, s 557

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223

Dorman v State of Queensland (Queensland Health) [2023] QIRC 335

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Kelsey v Logan City Council & Ors [2021] ICQ 11

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Moreton Bay Regional Council v Moorhead [2014] ICQ 13

Queensland Teachers Union of Employees v State of Queensland (Department of Education (No 2) [2021] ICQ 3

Robertson v McDonald's Australia Limited [2023] ICQ 27

Mr C. Murdoch KC with Mr L. Grant of Counsel instructed by Crown Law for the Respondent

• [1] The Appellant, Gareth Rogers, appeals a decision of the Queensland Industrial Relations Commission.

• [2] The decision appealed against is a decision that Mr Rogers, as the agent of the Applicant in matter TD/2022/197,[1] pay the Respondent's costs in the amount of $9,062.00 within 14 days of the date of the order ('Decision').[2]

• [3] Mr Rogers acted, for most of the proceedings, as an agent for the Applicant, Ms Delma Dorman, in an application for reinstatement wherein it was contended, on Ms Dorman's behalf, that she had been unfairly dismissed pursuant to s 316 of the Industrial Relations Act 2016 (Qld) ('IR Act').

• [4] Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law, or excess or want of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the Court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.

• [5] Mr Rogers has not sought leave to appeal on a ground other than those referred to in s 557(1) of the IR Act.

• [6] Mr Rogers relies on the following two grounds of appeal, set out as follows:

(a) no Court acting reasonably could have found that the Appellant had caused costs to be incurred from 4 November 2022 to 30 January 2023 as a result of an unreasonable act or omission of the Appellant ('ground one'); and

(b) contrary to the rules of natural justice, the following findings indicate the Commission's order requiring the Appellant to pay the Respondent's costs in the amount of $9,062.00 was coloured by bias or might reasonably be apprehended as being coloured by bias ('ground two').

• [7] Before considering the grounds of appeal it is necessary to consider the chronology of the proceedings below, including the costs application and the conduct of the parties during the course of the proceedings, in order to provide some context to the decision subject of the appeal.

Chronology of the Proceedings before the Commission

• [8] On 25 August 2022, an application for reinstatement was filed on behalf of Ms Dorman, whose employment at the Caboolture Hospital was terminated because of her failure to comply with the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements.

• [9] Ms Dorman's employment was terminated on 20 July 2022 and the application for reinstatement was filed on 25 August 2022 which was 15 days out of time.

• [10] The application for reinstatement was filed on behalf of Ms Dorman by Ms Natasha Misko, a senior human rights advocate of Human Rights Advocates Australia.

• [11] At a preliminary stage of the proceedings, a jurisdictional objection was raised by the Respondent on the basis that the application for reinstatement was filed outside of the time prescribed by s 317(2)(a) of the IR Act ('the jurisdictional objection').

• [12] At a mention of the matter on 27 September 2022, the Commission issued directions for the parties to file submissions addressing the jurisdictional objection and matters relevant to s 541(b)(ii) of the IR Act. Section 541(b)(ii) of the IR Act provides, relevantly, that the Commission may dismiss the industrial cause, or refrain from hearing, further hearing, or deciding the cause if the Commission considers further proceedings are not necessary or desirable in the public interest.

• [13] On 30 September 2022, Mr Rogers filed a Form 36 - Notice of change of lawyer or agent indicating that he, from that time, acted for Ms Dorman. Mr Rogers acted as an agent in the course of performing his role as in-house counsel for an entity known as "Reignite Democracy Australia".

• [14] A copy of the Directions Order issued following the mention on 27 September 2022 was provided to Mr Rogers.

• [15] Submissions were filed by Mr Rogers, on behalf of Ms Dorman, on 28 October 2022. Those submissions did not address, amongst other things, the jurisdictional objection nor s 541 of the IR Act.

• [16] Consequently, the matter was listed for further mention on 4 November 2022. On that occasion the Commission brought to Ms Dorman's representative's attention (Mr Rogers was absent from this mention and had arranged for someone else to appear for

Ms Dorman) that the submissions filed on her behalf did not address relevant matters including matters relevant to the jurisdictional objection and to the consideration of s 541 of the IR Act.

• [17] The Commission indicated that it was considered necessary to raise these matters in a mention prior to the Respondent being put to the expense of preparing submissions in reply. No further directions were issued.

• [18] Following the mention on 4 November 2022, Mr Rogers, on behalf of Ms Dorman, filed further written submissions. Mr Rogers had not sought leave of the Commission to vary the directions to permit the filing of further submissions on behalf of Ms Dorman.

• [19] The matter was again listed for mention on 15 November 2022.

• [20] During the course of the mention the following exchange occurred between the Commission and Mr Rogers:[3]

MR RODGERS: - - - if that - if you think that could be a defect, then - - -

COMMISSIONER: I'm not - I'm - Mr Rodgers, I'm not asking for your arguments about the merits of Ms Dorman's case as you see it now.

COMMISSIONER: I'm not asking you for that. Mr Rodgers, I'm just simply putting you on notice that if the Crown is required to respond to all of this and if I determine that the matter ought not be dealt with in accordance with the discretion that I have under section 541, then if the Crown makes an application for costs and that you pay those costs, I will be giving serious - - -

COMMISSIONER: - - - consideration to making such an order.

MR RODGERS: That's never going to happen. I won't be paying those costs, and we'll simply appeal the matter, Commissioner. If you don't want to do your job, we'll get someone else to do it.

• [21] It is of no surprise that the Commission subsequently cautioned Mr Rogers with respect to the tone and language adopted by him and directed to the Commission during the course of the mention.

• [22] After hearing from the Respondent, the Commission determined that, as the Respondent was yet to file its' submissions, leave would be granted for Mr Rogers to file the additional submissions and the Respondent was provided with an extension of time to file its' submissions in reply. The Respondent's submissions were filed on 28 November 2022.

• [23] On 8 December 2022, the matter was listed for further mention. On that occasion,

Mr Rogers indicated that he intended to file reply submissions later that day. Mr Rogers also, relevantly, indicated that it was his preference that the matter proceed by way of an oral hearing rather than on the papers. The oral hearing was subsequently listed to be heard on Monday, 30 January 2023.

• [24] On Friday, 27 January 2023 at 10.54 am, Mr Rogers sent an email to the Industrial Registry confirming that he would attend the hearing on 30 January 2023 and also sought leave for Ms Dorman's appearance to be excused.

• [25] On Friday, 27 January 2023 at 3.36 pm, the Industrial Registry wrote to the parties responding that Ms Dorman was required to attend the hearing on 30 January 2023.

• [26] On Saturday, 28 January 2023, Mr Rogers sent an email to the Industrial Registry attaching a Form 35 - Notice of withdrawal of appointment of lawyer or agent. Later that morning, Mr Rogers also sent an email attaching a Notice of Discontinuance seeking to discontinue the proceedings.

• [27] On Sunday, 29 January 2023, the Respondent indicated that it objected to any discontinuance of the proceedings without an order for costs and a costs application was subsequently filed by the Respondent.

• [28] The power to award costs is found in s 545 of the IR Act. Section 545 of the IR Act relevantly states:

(1) A person must bear the person's own costs in relation to a proceeding before the court or commission.

(2) However, the court or commission may, on application by a party to the proceeding, order -

(a) a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied -

(i) the party made the application or responded to the application vexatiously or without reasonable cause; or

(ii) it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or

(b) a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred -

(i) because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or

(ii) because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.

(3) The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.

• [29] Section 545 of the IR Act was considered by the Industrial Court of Queensland in Kelsey v Logan City Council & Ors,[4] his Honour, Davis J distilled the following principles in the analysis of the provision as follows:[5]

• [25] Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:

(a) The starting point is that each party bears their own costs.

(b) A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.

(c) The assessment of 'reasonable cause' in s 545(2)(a)(i) is:

(ii) made considering the facts existing as at the time of the institution of the proceedings, here the appeal.

(d) Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.

• [30] As noted above, the starting point with respect to the question of costs is that each party bears their own costs.

• [31] Discretion to depart from that point only arises if one of the jurisdictional facts identified in ss 545(2)(a)(i), 545(2)(a)(ii), 545(2)(b)(i) or 545(2)(b)(ii) of the IR Act are established.

• [32] Relevantly, in consideration of whether s 545(2)(a)(ii) is engaged, there will need to be identification of the relevant act and/or omission by the representative. Acts and omissions taken after the commencement of the proceedings may also be relevant.

• [33] The determination of whether the relevant act or omission is unreasonable is an objective assessment.

• [34] The Commission below considered the application of similar provisions in the federal jurisdiction, namely, s 401 of the Fair Work Act 2009 (Cth) ('FW Act') and its predecessor s 170CJ of the Workplace Relations Act 1996 (Cth). Relevantly, the authorities referred to consider the types of conduct that amounted to an "unreasonable act or omission" in the context of a costs application. It is convenient to reproduce the following extracts of the authorities referred to by the Commission:[6]

• [168] The phrase 'unreasonable act or omission' in the context of the costs discretion found in s 170CJ(3) of the Workplace Relations Act 1996 (Cth) was extensively discussed by the Full Bench in Veal and it is useful to reproduce that consideration here:

• [17] The concept of an unreasonable act or omission in s.170CJ(3) was considered in Goffet v Recruitment National Pty Ltd relative to a failure to attend conciliation proceedings. In that matter the Full Bench stated:

"[35] In the absence of medical evidence of Ms Goncalves and an opportunity for the Appellant to be heard on the point no weight should attach to the affidavit of Ms Goncalves claim that she was ill on the day of the conciliation on 5 November 2008. The notice of listing for the 5 November 2008 conciliation was sent to the Respondent by fax on 20 October 2008. The matter was listed for 11.30am. The Respondent only notified the Commission that it would not be attending the conciliation when the Commissioner's associate telephoned the Respondent to inquire of its whereabouts at the time of the conciliation. Assuming Ms Goncalves was ill, as it is submitted that she was, no explanation appears to be given for the failure of the Respondent to inform the Appellant or the Commission of the fact prior to the scheduled commencement time of the conciliation or at all at the initiative of the Respondent. That represents conduct in our view, which caused the Appellant and her representative an unnecessary attendance at the Commission for which we think she should have her costs. The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent's conduct in this regard was an intentional act. We are satisfied that the Respondent's conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs."

• [18] In terms of subsequent behaviour of a party to an unfair dismissal application, the Full Bench continued:

"[47] The Respondent's failure to take steps to inform the Appellant of its intentions immediately after the issue of the notice of listing was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable. That those unreasonable acts or omissions caused the Appellant to incur the costs in connection with the conduct of the proceeding is unquestionable. We are satisfied that the Respondent must be ordered to pay the Appellant's costs of and incidental to the submissions and preparation for arbitration. We allow also the costs on an indemnity basis in respect of the costs application."

• [19] A Full Bench considered the former s.170CJ(2) and (3) in Brazilian Butterfly Pty Ltd and Charalambous. It addressed the pre-existing authorities relevant to these provisions before stating:

[45] In many, if not most, cases there will be contested facts or contested interpretations of particular facts. What knowledge in this regard is to be attributed to the reasonable person considering whether, and if so, how to respond to an offer of settlement? The passage in Abbey, upon which the Commissioner relied was, clearly enough, an attempt to grapple with that problem. However, there is a tension between the way in which that passage is expressed and the apparent acceptance by the majority in Blagojevch that a party can act reasonably in responding to an offer of settlement by reference to that party's "genuine perception or recollection of events". The Full Court's formulation is to be preferred although, even then, it is not to be seen as a substitute for the words of the Act. Of course, there is an issue as to what constitutes a "genuine" perception. The Full Bench in Kangan Batman TAFE observed, we think correctly, that:

"A party cannot simply disregard matters that should have been reasonably apparent and then claim that such matters were not apparent to them."

• [21] Some additional guidance about the concept of an unreasonable act may be found in the Full Bench decision in Stagno v Frews Wholesale Meats in the following terms:

"This last extract introduces a point of distinction between s.170CJ(1) and s.170CJ(2). The former refers to 'without reasonable cause', the latter to 'acted unreasonably'. This anomaly, as it was described, is noted by a full bench in K.M. Lloyd v. International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty College [Print Q5446] and, by inference, the bench is of the view that the tests are different in s.170CJ(1) and (2). That there is a different formula is clear but we are of the view that the formulations are based on the stage of proceedings at which they occur. Section 170CJ(1) relates to the initiation of proceedings. Section 170CJ(2) relates to the failure to discontinue or the discontinuance of the matter. In each case what attracts the discretion to award costs is unreasonable action or the absence of sufficient reason for the action taken. What is considered to be without reason is determined by reference to the stage that the proceeding has reached. We note that this leaves open the possibility that proceedings may commence which are with reasonable cause but may, in particular circumstances at a later stage, be further prosecuted unreasonably.

We are of the view that a party to a proceeding commenced under s.170CE of the Act in which the Commission has begun arbitrating has acted unreasonably in failing to discontinue the matter if when, at the relevant time, upon the facts apparent to the applicant there was not substantial prospect of success."

• [169] The discussion in Veal reveals that a consideration of the facts in each matter is required to determine what is or is not an unreasonable act or omission. In the Commission's view, the phrase 'unreasonable act or omission' connotes something more than mere incompetence, although incompetence will often be an ingredient. It suggests inter alia a deliberate or reckless action (or inaction) by a representative that is objectively unreasonable by reference to the circumstances in which it occurs.

• [170] In Sharkey v Life Without Barriers, the Full Bench of the Fair Work Commission concluded:

• [92] As noted by the Federal Court in Barkhazen, the power to make a costs order against a lawyer must be exercised with care and discretion and only in clear cases. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success. However, an ulterior purpose or an abuse of process cannot be assumed simply because the case does not succeed or even because it is hopeless.

• [35] The following principles may be derived from the authorities referred to above:

(a) whether an act or omission is objectively unreasonable will turn on the particular facts of the matter and requires:

(i) identification of the impugned act or omission;

(ii) consideration of whether the act or omission was unreasonable in the circumstances of the matter including, inter alia, consideration of the timing of the act or omission; and

(iii) whether the act or omission caused the other party to incur costs.

• [36] In determining whether an act or omission was an objectively unreasonable act or omission the courts have considered whether, on the facts of the matter, the act or omission was intentional or unintentional, whether it was deliberate or reckless and whether there was an absence of a sufficient reason for the action taken or not taken.

• [37] Following a mention of the matter on 30 January 2023, a costs hearing was subsequently listed on 17 March 2023. Ms Dorman and Mr Rogers appeared, respectively, in their own right at the costs hearing.

• [38] During the course of the costs hearing, and following a brief adjournment, the parties indicated that an in-principle agreement had been reached with respect to the Respondent's costs application.

• [39] The parties were directed to provide the Commission with an update as to the status of the matter by 24 March 2023.

• [40] On 24 March 2023, the Respondent's representative emailed the Industrial Registry and advised that it had provided a settlement agreement to Mr Rogers but had received no response from Mr Rogers to that communication.

• [41] On 27 March 2023, Mr Rogers emailed the Industrial Registry and the Respondent's representative. After apologising for the delay in responding, Mr Rogers stated:

Agreeing to settle would be an admission of wrongdoing in circumstances where no such wrongdoing took place therefore I am unable to settle this matter.

• [42] After consulting with the parties regarding a suitable date to relist the costs application, the Industrial Registry relisted the resumed costs hearing on 23 May 2023.

• [43] Whilst the representatives for the Respondent and Ms Dorman appeared at the resumed hearing on 23 May 2023, Mr Rogers failed to appear.

• [44] In the absence of Mr Rogers and noting that the only evidence left to be adduced in the costs proceeding was that of Mr Rogers, the Commission determined to adjourn the hearing with the remainder of the matter to be heard on the papers.

• [45] Following the adjournment, correspondence was sent to the parties and Mr Rogers advising that the remainder of the proceedings would be dealt with on the papers. It was also advised that the statement of Mr Rogers filed on 15 March 2023 would become Exhibit 3 in the proceedings.

• [46] Later that same day, Mr Rogers replied to the email correspondence stating that an administrative error had been made by him wherein the hearing date had been incorrectly entered into his diary. Mr Rogers confirmed that he did not object to the matter proceeding on the papers.

• [47] On 2 June 2023, the Respondent's representatives responded to the Commission's correspondence indicating that there was no objection to the matter proceeding on the papers, however, it was noted that should Mr Rogers statement be admitted into evidence then the Respondent should not be taken to have accepted the truth of its contents.

• [48] On 4 July 2023, the Respondent's representatives filed an affidavit setting out the particulars of the costs incurred by the Respondent in the proceedings. The affidavit also addressed matters relating to Mr Rogers' status as holding a practicing certificate as a legal practitioner.

• [49] On 5 July 2023, Mr Rogers emailed the Industrial Registry seeking leave to reply to matters contained in the affidavit filed on 4 July 2023. The Commission granted leave for Mr Rogers to file written submissions addressing the quantum of costs and details about his practicing certificate by 4.00 pm on 14 July 2023.

• [50] Mr Rogers did not file any further written submissions by 4.00 pm on 14 July 2023.

• [51] However, on Saturday, 15 July 2023 at 10.22 am, Mr Rogers sent an email to the Industrial Registry which purported to respond to the affidavit of 4 July 2023 in which Mr Rogers stated the email "should be properly considered as submissions to the Commission...".

• [52] After stating the relevant factual background and identifying the relevant statutory provisions and legal principles to be applied, the Commission below appropriately identified the following three questions when considering whether to award costs in favour of the Respondent in the following terms:

(a) should the party applying for costs have their costs paid; and, if so,

• [53] The Commission considered the first question and determined that a costs order in favour of the Respondent was appropriate in the circumstances of the matter.

• [54] In making such a determination, the Commission found:[7]

It is difficult to imagine a set of circumstances more deserving of a costs order. As in Dawson, multiple efforts were made by the Commission to appraise Ms Dorman (or more particularly, her representatives) of the futility of the application, but all were rebuffed. Ms Misko was informed. Ms Kuth was informed. Mr Rogers was informed. None of these persons who were purporting to represent Ms Dorman's interests appear to have had any serious regard to the multiple concerns raised by the Commission. It was only after the Respondent had been put to the expense of preparing submissions and preparing for hearing that Ms Dorman sought to discontinue the application, on a Saturday, with less than 48 hours until the hearing was due to commence.

• [55] The Commission then turned its attention to the second question. That is, who should pay the costs. In considering that question, the Commission considered whether Ms Dorman, pursuant to s 545(2)(a) of the IR Act, should bear the costs or if Mr Rogers, as Ms Dorman's representative, pursuant to s 545(2)(b) of the IR Act should bear the costs.

• [56] With respect to Ms Dorman, the Commission had regard to the fact that, inter alia,

Ms Dorman was represented throughout the whole proceedings.[8] In this regard, the Commission observed that:[9]

Throughout this entire matter, Ms Dorman was deprived of competent representation. Worse still, as will be discussed further below, it appears to the Commission that Ms Dorman's distress and confusion at losing her job was exploited by Ms Misko and later by Mr Rogers purely to press their personal (misconceived) views about vaccines and mandates.

Ms Dorman was barely consulted by Mr Rogers once the proceedings were filed and certainly not at all at the critical junctures.

• [57] For the reasons set out in the Decision,[10] the Commission concluded that Ms Dorman bared no responsibility to pay the Respondent's costs.

• [58] The Commission then considered whether Mr Rogers should be liable for the Respondent's costs.[11]

• [59] After considering the relevant legal principles and further considering Mr Rogers conduct, the Commission concluded that Mr Rogers was liable to pay the Respondent's costs for the period between 4 November 2022 to 30 January 2023 pursuant to s 545(2)(b) of the IR Act.

• [60] In forming that view, the Commission did not find that Mr Rogers encouraged

Ms Dorman in the manner contemplated by s 545(2)(b)(i) of the IR Act. However, the Commission did conclude that there was a compelling case for costs against Mr Rogers pursuant to s 545(2)(b)(ii) of the IR Act on the basis of his unreasonable acts or omissions.

• [61] In forming its decision, the Commission also concluded, in summary, that:

(a) Mr Rogers was on notice of the Commission's concerns regarding the merits of the application and the fact that the application was filed out of time as early as

27 September 2022;[12]

(b) The submissions filed on 10 November 2022 were incompetent;[13]

(c) in the circumstances, the unsolicited filing of amended submissions on

10 November 2022, without leave or notice to anyone, was an unreasonable act and it was that act that ultimately necessitated the second mention on 15 November 2022;

(d) it was not satisfied, on the evidence available, that Mr Rogers communicated the issues raised by the Commission with respect to Ms Dorman's application to

Ms Dorman;

(e) Mr Rogers asserted that the sudden request to discontinue was because he did not begin his preparation for the hearing he requested until the Friday afternoon before the hearing which was listed to be heard on the following Monday; and

(f) the failure to adequately prepare for a hearing in a timely manner by any representative, let alone a legal practitioner, is inexcusable and plainly an unreasonable act or omission.[14]

• [62] The Commission determined that it was appropriate for the costs order to be awarded against Mr Rogers in circumstances where the Commission found that the actions and omissions of Mr Rogers on and after 4 November 2022 constituted unreasonable acts or omissions for the purpose of s 545(b)(ii) of the IR Act.[15] In this regard, the Commission found that:

• [171] The many failings of Mr Rogers as a representative are set out above and do not require repeating. Mr Rogers failed on almost every occasion to comply with directions issued by the Commission. There were repeated listings necessitated to address his delinquency. But even when confronted with his transgressions,

Mr Rogers made no efforts to rectify his conduct. To the extent that Mr Rogers might have uttered anything resembling an apology at any point, the Commission never had the impression it was genuine.

• [172] So frequent was Mr Rogers' non-compliance with directions orders that the Commission has been left in no doubt that his conduct was not merely a feature of incompetence. The dismissive and casual tones routinely adopted by Mr Rogers gave a clear impression of disdain for the Commission. It was plainly and exclusively the conduct of Mr Rogers that caused the Respondent to incur costs unnecessarily in responding to Ms Dorman's application.

• [173] Not only did Mr Rogers consistently misconduct himself throughout the life of the proceedings, but he continued to do so during the proceedings in respect of costs. In the circumstances it is prudent to consider Mr Rogers' conduct in those two phases of the proceedings, namely:

(a) From commencement to the request to discontinue proceedings; and

• [63] Ground one, as submitted by Mr Rogers, is comprised of two components, namely, that the Commission erred in law on the basis of:

(b) consideration of relevant and irrelevant matters.

• [64] In his written submissions, Mr Rogers refers to the Wednesbury principle,[16] and the following extract from Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[17] which is set out as follows:[18]

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

• [65] Unfortunately, however, Mr Rogers does not identify the finding on any other relevant passage of the Decision that he contends was unreasonable so as to amount to an error of law.

• [66] In Moreton Bay Regional Council v Moorhead,[19] Martin J considered an appeal that concerned a ground of legal unreasonableness as follows:[20]

• [28] The appellant submits that the Commission's finding that the appellant's decision to dismiss the respondent was harsh and that reinstatement was not impracticable was unreasonable, so as to amount to an error of law. The approach that a court should take in considering matters of this nature was discussed by a joint majority of the High Court in Minister for Immigration v Li. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. But, this analysis cannot be used as a cloak to hide what is, in truth, a merits review. In that case, Hayne, Kiefel and Bell JJ noted that:

• [66] ... there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

• [67] In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

• [67] Rather than identifying the relevant parts of the Commission's findings that are said to be in error, Mr Rogers, instead, lists the following particulars as a basis upon which he asserts that the Decision is unreasonable:[21]

(a) Mr Rogers provided submissions to the Commission (and the Respondent) on 10 November 2022 setting out the instructions that had been provided to the Appellant by both Ms Dorman and Ms Misko (Ms Dorman's previous representative) with respect to the filing of the application for reinstatement. Namely, that the application was filed with the Industrial Registry via email from Ms Misko "on Monday, 8 August 2022" (being within the 21-day timeframe required by s 317 of the IR Act ('s 317 Submissions');

(b) after the Respondent responded to the s 317 Submissions in its submissions filed on 25 November 2022, Mr Rogers required further instructions from Ms Dorman to prepare reply submissions which were due on 8 December 2022;

(c) Ms Dorman gave evidence, which was accepted by the Commission, that she was not able to be contacted by any means by Mr Rogers from 25 November 2022 until she contacted him on 22 January 2023 via telephone;

(d) at the mention on 8 December 2022, Mr Rogers was not aware, and could not have been aware, that Ms Dorman would not respond to his request sent via email on

25 November 2022, to read the Respondent's submission filed on 25 November 2022 and then contact him "when free";

(e) at the mention on 8 December 2022, Mr Rogers was not aware, and could not have been aware, that Ms Dorman would not respond to his attempts to make contact via email or telephone until 22 January 2023;

(f) at the mention on 8 December 2022, Mr Rogers had not "actively sought to have the matter listed for a hearing",[22] but only expressed a preference "for the opportunity to answer questions" from the Commissioner when asked for his views on the choice put to him by the Commission to either have the matter determined on the papers or have a hearing in person;[23]

(g) on the morning of 28 January 2023, being six days after Ms Dorman made contact with Mr Rogers, Mr Rogers then sought further instructions from Ms Dorman with respect to the matters raised by the Respondent in its submissions of 25 November 2022 relating to the filing of the application for reinstatement within the statutory timeframe; and

(h) after Ms Dorman provided further instructions confirming that a second application was submitted by Ms Misko on 25 August 2022, which contradicted the previous instructions provided to Mr Rogers that only a single application had been filed on 8 August 2022 (as set out in the s 317 Submissions), Mr Rogers took the steps to discontinue the proceedings within a few hours.

• [68] In the absence of clear and cogent submissions with respect to why Mr Rogers says those particulars amount to the Decision being legally unreasonable, it can only be inferred that Mr Rogers seeks to argue that the Commission did not have regard to the particulars he lists and consequently the Decision is unreasonable.

• [69] In relying on the particulars above, Mr Rogers seeks to relitigate the factual matters he sought to rely on in the proceedings below which were not accepted by the Commission. In doing so, it is apparent that what Mr Rogers really seeks in initiating this appeal is a merits review.

• [70] Mr Rogers continues, as he did below, to contend that he could not have sought to have the proceedings discontinued any earlier than Saturday, 28 January 2023 because of the submissions he makes at (a) - (h) of the particulars.

• [71] Mr Rogers' submissions fail to have regard to the whole of the admissible evidence that was before the Commission and, further, fails to display any understanding of what

Mr Rogers' obligations were when acting as an agent on behalf of Ms Dorman.

• [72] It was incumbent on Mr Rogers, as Ms Dorman's agent, to act in her best interests before the Commission. Failure to file written submissions meaningfully addressing the jurisdictional objection and the exercise of the Commission's discretion pursuant to s 541 of the IR Act when directed to do so, was not acting in Ms Doman's interest. Additionally, failure to have regard to, let alone read, the Respondent's written submissions of

25 November 2022 until 28 January 2023 was not acting in Ms Dorman's interests. It was appropriate for the Commission to have regard to such matters in the context of a costs application and the test to be applied.

• [73] Further, at no point during the relevant period did Mr Rogers identify and bring to the Commission's attention that he was unable to receive instructions from Ms Dorman and, consequently, was not in position to proceed with the hearing. A prudent agent would have raised such a serious matter with the Commission well in advance of any hearing and sought, at the very least, an adjournment of the hearing until instructions were received. That again was a matter relevant to the costs application and the test to be applied.

• [74] Further, Mr Rogers attempts to re-characterise his submissions made before the Commission at the mention on 8 December 2022 as doing no more than merely expressing a preference for the opportunity to answer questions from the Commission rather than actually seeking an oral hearing. The transcript identifies the following exchange:[24]

COMMISSIONER: Yes. All right. That's fine. The next thing I was going to ask the parties is whether they had a desire for me to list the matter for oral submissions. I'm in the parties' hands, although I'll make some comments about it once I've heard the parties' views.

Mr Rogers, did you have a preference with respect to whether we have oral submissions in this matter? So what's anticipated is that the party would speak to the submissions that have been filed and would be in a position to answer questions directed at them from the bench.

MR ROGERS: Yes. My preference would be that - well, sorry. I would be in a position to - - -

COMMISSIONER: Or the - I should say the alternative - sorry to cut across you, Mr Rogers, but I should say the alternative - - -

COMMISSIONER: The alternative is I just - can decide the matter on the papers based on the written submissions from the parties.

MR ROGERS: My preference would be for the opportunity to answer questions from yourself, Commissioner.

• [75] It was certainly open for the Commission to determine that Mr Rogers, acting on behalf of Ms Dorman, sought an oral hearing rather than for the matter to be heard on the papers.

• [76] It is apparent from the above, and from the reasons provided in the Decision, that there was a factual basis and, consequently, plausible justification for the findings made by the Commission. The matters raised by Mr Rogers in this appeal were raised before the Commission and rejected.

• [77] Consequently, Mr Rogers has not established that the Decision was one which no reasonable person could come to, or that the manner in which the Commission made the decision was devoid of plausible justification so that no reasonable person could have made it. For these reasons, Mr Rogers argument that the Decision was legally unreasonable must fail.

• [78] Mr Rogers further contends that the Commission failed to take into account relevant considerations and took into account irrelevant considerations in determining the matter.

• [79] In Queensland Teachers Union of Employees v State of Queensland (Department of Education (No 2),[25] his Honour, Davis J considered the concept of relevant and irrelevant considerations in the following terms:[26]

The 'something more' requires reference to the dual concepts of 'relevant considerations' and 'taking into account'. The term 'relevant considerations' is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be 'mandatory consideration'. Further, a matter traditionally described as an 'irrelevant consideration' is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

• [80] In order to be successful, Mr Rogers is required to establish that the Commission failed to take into account matters it was obliged to pursuant to s 545(2)(b)(ii) of the IR Act or, in the alternative, the Commission had regard to prohibited matters having regard to the subject matter, scope and purpose of the power in s 545(2)(b)(ii) of the IR Act being exercised.

• [81] Mr Rogers contends that the Commission failed to take into account the following relevant considerations:[27]

1. The Respondent filed its submissions on 25 November 2022 which directly addressed the Appellant's Section 317 Submissions.

"Ms Dorman sets out that she commenced new employment from 12 October 2022. From that time on, Ms Dorman contends that she was unable to attend mentions before the Commission. She also contends that her new role was busy and this left her with no time to check emails. The inference in her submission (which was born out in her evidence) is that she had little meaningful contact with Mr Rogers from 12 October 2022 onwards."

1. At paragraph 98 of the Decision, the Commission finds that on or about 25 November 2022 until on or about 15 January 2023, Ms. Dorman had no contact with the Appellant "as she was heavily preoccupied".

1. At paragraph 99 of the Decision the Commission appears to accept Ms Dorman's evidence that "on 15 January 2023 she checked her emails and noticed an email from Mr Rogers".

1. At paragraph 150 of the Decision the commission found, "having secured new employment in October 2022, Ms Dorman appears to have left the conduct of her application with her representatives."

1. At paragraph 147 of the Decision the commission found, "Her work obligations became her priority and she largely stopped reading emails from about 12 October 2022. Subsequently Ms Dorman experienced a loss in her family and became even more removed from the process."

1. At paragraph 251 of the Decision the commission found, "Ms Dorman was wholly incommunicado throughout the majority of the matter, and that Mr Rogers was pursuing the proceedings almost entirely without instructions."

1. At paragraph 210 of the Decision, the Commission refers to an email sent by the Appellant on Thursday, 19 January 2023 to Ms Dorman requesting that she contact him "over the weekend" to discuss the Application and the upcoming hearing on 30 January 2023.

1. The Appellant gave evidence that Ms. Dorman contacted the Appellant on Sunday, 22 January 2023, being:

1. the "weekend" referenced in the Appellant's email of Thursday, 19 January 2023; and

1. seven (7) clear days from the date on which Ms. Dorman had "checked her emails and noticed an email from Mr Rogers' (see paragraph 99 of the Decision).

1. On the morning of 28 January 2023, being 6 days after Ms. Dorman made contact with the Appellant after she became non-contactable since 25 November 2022, the Appellant sought further instructions from Ms Dorman with respect to the matters raised by the Respondent in its submissions of 25 November 2022 relating to the filing of the Application within the statutory timeframe.

• [82] Mr Rogers contends that the Commission failed to have regard to the above matters, whilst, curiously, doing so by referencing the paragraphs from the Decision where the Commission has considered the matters.

• [83] Further, Mr Rogers does not identify the basis upon which he contends the Commission failed to take into account matters it was obliged to pursuant to s 545(2)(b)(ii) of the

IR Act.

• [84] Mr Rogers does not identify any error arising out of the Commission's alleged failure to consider the identified particulars. In these respects, the appeal ground must fail.

• [85] Separately, Mr Rogers refers to paragraph 208 of the Decision which he described as containing a "pivotal" finding upon which the costs order was founded. Paragraph 208 relevantly states:

For completeness, it ought to be noted that, to the extent Mr Rogers seeks to lay blame on Ms Misko for not adequately instructing him about the late filing, he could easily have overcome that alleged disadvantage if he had made proper enquires when he first had the opportunity to became aware of the Respondent's objection i.e. on or around 4 November 2022, or by 25 November 2022 at the absolute latest.

• [86] Mr Rogers appears to argue that in making the finding in paragraph 208 the Commission failed to have regard to the following relevant considerations:[28]

1. The Appellant provided the Section 317 Submissions to the Commission (and the Respondent) on 10 November 2022. These submissions set out the instructions that had been provided to the Appellant (by both Ms. Dorman and Ms. Misko) with respect to the filing of the Application for reinstatement. Namely, that the application was filed with the Registry via an email from Ms. Misko "on Monday, 8 August 2022" (being within the 21 day timeframe required by Section 317 of the Industrial Relations Act).

1. The Respondent filed its submissions on 25 November 2022 which addressed the Appellant's Section 317 Submissions.

"Ms Dorman sets out that she commenced new employment from 12 October 2022. From that time on, Ms Dorman contends that she was unable to attend mentions before the Commission. She also contends that her new role was busy and this left her with no time to check emails. The inference in her submission (which was born out in her evidence) is that she had little meaningful contact with Mr Rogers from 12 October 2022 onwards."

1. Findings at paragraph 98 of the Decision, that on or about 25 November 2022 until on or about 15 January 2023, Ms. Dorman had no contact with the Appellant "as she was heavily preoccupied".

1. Findings concerning Ms Dorman's evidence at paragraph 99 of the Decision that "on 15 January 2023 she checked her emails and noticed an email from Mr Rogers".

1. Findings at paragraph 210 of the Decision, that Appellant sent a further email on Thursday, 19 January 2023 to Ms Dorman requesting that she contact him "over the weekend" to discuss the Application and the upcoming hearing on 30 January 2023.

1. The Appellant gave evidence that Ms. Dorman contacted the Appellant on Sunday, 22 January 2023, being:

1. the "weekend" referenced in the Appellant's email of Thursday, 19 January 2023; and
2. seven (7) clear days from the date on which Ms. Dorman had "checked her emails and noticed an email from Mr Rogers" (see paragraph 99 of the Decision).

1. On the morning of 28 January 2023, being 6 days after Ms. Dorman made contact with the Appellant after she had been non-contactable since 25 November 2022, the Appellant sought further instructions from Ms Dorman with respect to the matters raised by the Respondent in its submissions of 25 November 2022 relating to the filing of her Application within the statutory timeframe.

• [87] It is apparent that several of the relevant considerations referred to in paragraph 81 above are also repeated in subparagraph (a)-(h) above.

• [88] Similarly, as above, the matters that Mr Rogers particularises as "relevant considerations" that he contends were not considered by the Commission are identified by Mr Rogers by reference to the paragraph numbers in the Decision where those matters appear and were considered.

• [89] Further, it is apparent that Mr Rogers again attempts to relitigate the matter below, specifically with respect to the matters he contends he was not instructed on in the proceedings below. The Commission considered the evidence and to the extent that there was a contest between the evidence of Ms Dorman and Mr Rogers, the Commission accepted Ms Dorman's evidence.[29] The Commission's factual findings in this regard cannot be challenged in the context of this appeal.

• [90] Mr Rogers has failed to establish that the Commission failed to take into account a relevant consideration that amounted to an error of law.

• [91] Mr Rogers further argues that the Commission had regard to irrelevant considerations which were stated in his submissions as follows:[30]

1. The Commission relied on the following findings set out in paragraph(s) 199 to 201 of the Decision which are irrelevant to whether he caused the Respondent to incur costs:

"[199] In his own words, without a hint of contrition or embarrassment, Mr Rogers casually asserts that the sudden request to discontinue was because he did not begin his preparation until Friday afternoon before the hearing which, by coincidence, was immediately after he received an email from the Industrial Registry advising, contrary to his proposal, that Ms Dorman would be required to attend the hearing.

[200] One can only presume Mr Rogers 'preparation' involved reading the Respondent's submissions filed 25 November 2022 for the first time that afternoon on the last business day before hearing. At the absolute best, it can be inferred that if Mr Rogers had read those submissions earlier, he did not read them properly.

1. From paragraphs 243 to 252 of the Decision (under the heading "Other Matters") indicate the Commission took into account considerations that are not relevant in determining whether an order for costs should be made pursuant to section 545(2)(b)(ii) of the Industrial Relations Act 2016 (Qld), including at paragraph 251 of the Decision:

... "Mr Rogers appears to be closely associated with RDA. RDA was apparently founded on activism opposing lockdowns and vaccine mandates."

"Throughout this entire matter, Ms Dorman was deprived of competent representation. Worse still, as will be discussed further below, it appears to the Commission that Ms Dorman's distress and confusion at losing her job was exploited by Ms Misko and later by Mr Rogers purely to press their personal (misconceived) views about vaccines and mandates."

• [92] Relevantly, Mr Rogers does not articulate the basis upon which he asserts the matters referred to above amount to irrelevant considerations in the exercise of the Commission's discretion with respect to s 545(2)(b)(ii) of the IR Act.

• [93] It is apparent that the Commissioner relevantly had regard to the conduct of Mr Rogers during the relevant period. Such a consideration is clearly relevant to the exercise of the Commission's discretion to award costs and when considering the application of

s 545(2)(b)(ii) of the IR Act.

• [94] The findings at paragraphs 199 to 201 of the Decision are relevant to the consideration of Mr Rogers' conduct in the exercise of the relevant discretion. Here, the identified conduct was relevant to the consideration as to why Mr Rogers sought to withdraw as Ms Dorman's agent and then discontinue the matter on Saturday, 28 January 2023, in circumstances where the jurisdictional hearing has been listed to commence on Monday, 30 January 2023.

• [95] Mr Rogers further asserts that the Commission took into account irrelevant considerations at paragraph 161 of the Decision. Paragraph 161 relevantly states:

Throughout this entire matter, Ms Dorman was deprived of competent representation. Worse still, as will be discussed further below, it appears to the Commission that Ms Dorman's distress and confusion at losing her job was exploited by Ms Misko and later by Mr Rogers purely to press their personal (misconceived) views about vaccines and mandates. Ms Dorman was barely consulted by Mr Rogers once the proceedings were filed and certainly not at all at the critical junctures.

• [96] It is not apparent the basis upon which Mr Rogers asserts that an irrelevant consideration was taken into account in the exercise of the discretion. Paragraph 161 of the Decision falls under the Commission's consideration as to whether Ms Dorman should be liable to pay the Respondent's costs pursuant to s 545(2)(a) of the IR Act. In this regard, the Commission was considering the type and competency of the agents who acted on behalf of Ms Dorman. That was a relevant consideration with respect to the exercise of discretion with respect to Ms Dorman. Paragraph 161 clearly does not relate to the Commission's considerations of the exercise of the discretion with respect to Mr Rogers.

• [97] After determining that the Commission would exercise its discretion and order that

Mr Rogers pay the Respondent's costs in the amount of $9,062.00, the Commission then turned to other matters that had arisen during the course of the proceedings. Paragraphs 243 to 252 of the Decision relevantly stated as follows:

• [243] Mr Rogers was first admitted to the legal profession in or around October 2012. He held a practicing certificate until June 2022. At the time Ms Dorman came to be represented by Mr Rogers in September 2022, Mr Rogers was admitted to the legal profession but he did not hold a practicing certificate.

• [244] Mr Rogers appeared in the Commission as representative for Ms Dorman while employed by an entity named 'Reignite Democracy Australia' ('RDA') which is a quasi-political organisation of the type spawned from the various anti-lockdown and anti-vaccine groups that emerged during the pandemic.

• [245] In his email response to the affidavit, Mr Rogers describes his role with RDA as having variously been 'in-house counsel' (during the period he previously held a practicing certificate) and 'a commercial role' during the first part of the period he represented Ms Dorman.

• [246] By 5 December 2022, Mr Rogers had been issued with a principle practicing certificate and had successfully registered an incorporated legal practice called 'Reignite Legal'. It is not clear whether Reignite Legal and RDA are related entities. The RDA website includes a link titled 'Legal' which redirects to Reignite Legal.

• [247] Mr Rogers states he did not commence legal work in his practice until 16 January 2023. Presumably Mr Rogers makes this submission because he somehow considers this means his conduct prior to 16 January 2023 was not regulated by the Legal Profession Act 2007 (Qld) ('LP Act').

• [248] Whether Mr Rogers held a practicing certificate or was operating his law firm at the relevant times between September 2022 and May 2023 is largely irrelevant. At all times during the proceedings Mr Rogers was either an 'Australian lawyer' or an 'Australian legal practitioner' within the meaning of the LP Act. Therefore, Mr Rogers' conduct throughout these proceedings was all relevant to the question of his suitability to practice. Further, from 5 December 2022 Mr Rogers' conduct was regulated by the Australian Solicitors' Conduct Rules ('the Solicitors' Rules').

• [249] The foregoing reasons catalogue a range of conduct by Mr Rogers that, in the view of the Commission, raise serious questions about his suitability to practice. Unlike the Industrial Court of Queensland, the Commission does not have powers to punish for contempt. But it is worth noting that there is at least one incident of explicitly contemptuous conduct by Mr Rogers in addition to his consistent display of disrespectful behaviour towards the Commission both in his demeanour and his repeated non-compliance with directions orders.

• [250] The Commission is a court of record in Queensland. While non-legally qualified representatives and self-represented litigants will be allowed a degree of tolerance with respect to their conduct before the Commission, persons who meet the LP Act definitions of Australian lawyer or Australian legal practitioner can expect to be held to the same standard of conduct applied in any other court. This is so, regardless of whether they purport to appear as an 'agent'. Professional duties and the regulatory powers of the LP Act cannot be avoided by a practitioner simply 'rebadging' themselves under some other title.

• [251] Mr Rogers appears to be closely associated with RDA. RDA was apparently founded on activism opposing lockdowns and vaccine mandates. Throughout the proceedings the Commission had the impression that Mr Rogers' personal views were at the forefront of his representation, and his professional duties to the Commission and his client were secondary. More significantly, the Commission noted with increasing concern the consistent absence of Ms Dorman from the various mentions held throughout the latter part of 2022. It came as no surprise for the Commission to later learn that Ms Dorman was wholly incommunicado throughout the majority of the matter, and that Mr Rogers was pursuing the proceedings almost entirely uninstructed.

• [252] It ought to be made clear that Mr Rogers is entirely free to hold and exercise his social and political views. But such freedom does not extend to Mr Rogers using clients as a mere vehicle to promote those views before a court or tribunal under the guise of legal proceedings. It was immediately apparent that the extensive (but incompetent) submissions Mr Rogers filed early in these proceedings had the familiar 'anti-vax template' appearance. They made no material reference to Ms Dorman or the circumstances of her dismissal at all. When one then considers the complete absence of meaningful communication between Mr Rogers and Ms Dorman throughout the relevant period, Mr Rogers' conduct as a legal practitioner pressing his misconceived arguments is more than a little concerning.

• [98] Whilst Mr Rogers does not complain of paragraphs 253 and 254 of the Decision, they are relevant to note on the basis that they provide context for the reason why the Commissioner considered it necessary to refer to the matters under the heading "Other matters". Paragraphs 253 and 254 of the Decision relevantly state:

• [253] It is not within the Commission's powers to sanction Mr Rogers for his conduct in these proceedings. However, if Mr Rogers continues to conduct himself in the same manner before other courts or tribunals, then in the Commission's view, he will inevitably bring the profession into disrepute. More concerningly, his conduct may adversely impact a member or members of the public.

• [254] Accordingly, the Commission intends to direct that the Registrar forward a copy of these reasons to the Legal Services Commissioner for her consideration.

• [99] Paragraphs 243 to 252 are matters referred to by the Commission following the Commission's determination that Mr Rogers be ordered to pay the Respondent's costs. The clear intent of the Commission in identifying the matters referred to under the heading "Other matters" is to highlight the conduct of Mr Rogers that became apparent during the course of the proceedings which formed a basis for the Commission to issue a direction to the Registrar that a copy of the Commission's reasons be provided to the Legal Services Commissioner for her consideration. These matters clearly follow the relevant finding and are ancillary to the Decision with respect to costs. Mr Rogers has not established that the Commission had regard to irrelevant considerations in exercising the discretion pursuant to s 545(2)(b)(ii) of the IR Act so as to amount to an error of law.

• [100] Consequently, ground one of the appeal fails.

• [101] The second ground Mr Rogers relies on is that the Decision was infected by apprehended bias.[31]

• [102] The relevant legal principles with respect to apprehended bias have previously been considered by this Court,[32] in Robertson v McDonald's Australia Limited,[33] as follows:[34]

• [25] In Ebner v Official Trustee in Bankruptcy the High Court held that apprehended bias will disqualify a judge from a case "if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".

• [26] The test to be applied for determining whether a judge should be disqualified for apprehended bias, the High Court held, requires the adoption of a two-step process:

"First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."

• [27] In Parbery & Ors v QNI Metals Pty Ltd & Ors Bond J set out the following principles relevant to the consideration of the test:

• [31] The application of the test uses the touchstone of the "fair-minded lay observer" and that person's reasonable apprehension. The law contemplates the following in the application of that test:

(a) The fair-minded lay observer has attributed to him or her awareness of and a fair understanding of the nature of the decision, the context in which it was made, and the circumstances leading up to the decision.

(b) The fair-minded lay observer has attributed to him or her knowledge that the judge is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial, with the result that a conclusion that there is a reasonable apprehension that the judge might be biased should not be drawn lightly. The observer does not have attributed to him or her knowledge of the character or the ability of the particular judge concerned.

(c) The fair-minded lay observer does not have attributed to him or her a detailed knowledge of the law, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, taking into account the exigencies of modern litigation.

• [32] What is required for justice to be seen to be done is that it must be apparent to the fair-minded lay observer that the judge will bring to the resolution of the issues an impartial and unprejudiced mind which will decide the issues according to their factual and legal merits. If such an observer might reasonably apprehend that the judge might not do that, then a case of apprehended bias is established. But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.

• [33] Although the test is expressed in terms of a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind, it is also clear that the law requires that proposition to be "firmly established" before the judge should disqualify himself or herself. In British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, Gummow J14 at [71] to [72] made this observation (footnotes omitted):

• [71] To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:

"In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

• [72] The references in JRL to the phrase "firmly established" in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. ...

• [34] The judge's ordinary duty to sit unless convinced otherwise was also discussed in the earlier decision of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [19] to [21]:

• [19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

• [20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

• [21] It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

• [103] Mr Rogers relied on the following submissions in support of his contention that the Decision was infected by apprehended bias:[35]

1. Contrary to the rules of Natural Justice, the following findings indicate the Commission's order requiring the Appellant to pay the Respondent's costs in the amount of $9,062 was coloured by bias or might reasonably be apprehended as being coloured by bias:

1. At paragraph 142 of the Decision the Appellant (with his predecessor) is accused of being motivated "by a desire to promote their own quasi-political agenda".

1. At paragraph 156 of the Decision (where the reference to incompetent representation is directed to the Appellant):

"The relevant circumstance of this matter include the representation of Ms Dorman by Mr Rogers. In the Commission's view, where it is apparent that incompetent representation serves to impede a party from acquiring an understanding that their application has no reasonable prospect of success, then s 545(2)(a)(ii) of the IR Act cannot be engaged."

"The submission filed by Mr Rogers were utterly unresponsive to the matters raised by the Commission and the Respondent. Even if they were sent to Ms Dorman, nothing about those submissions would give her any cause to understand the peril her matter was in, especially in the absence of some explanation from Mr Rogers

"it appears to the Commission that Ms Dorman's distress and confusion at losing her job was exploited by Ms Misko and later by Mr Rogers purely to press their personal (misconceived) views about vaccines and mandates".

"Following the mention on 15 November 2022 where Mr Rogers was directly informed by the Commission that the submissions filed were incompetent and that he was at risk of a personal costs order, the bare minimum one would expect of Mr Rogers as a representative is that he would consult Ms Dorman about these and obtain her instructions about the progress of the matter. Mr Rogers did nothing of the sort."

1. "The best effort Mr Rogers made was to send Ms Dorman a copy of his incompetent and nonsensical submission, without any explanation as to what it purported (but failed) to address. A more unreasonable omission by a representative would be hard to imagine."

1. The Appellant's submissions are described as "incompetent and nonsensical" and as having "purported to (but failed) to address" without any explanation being given as to why they were incompetent and nonsensical, nor what the submissions "failed to address".

... "Mr Rogers appears to be closely associated with RDA. RDA was apparently founded on activism opposing lockdowns and vaccine mandates."

1. The Appellant is accused of using Ms. Dorman as "a mere vehicle to promote" his social and political views before a court or tribunal.

1. The Appellant's submissions are described as having "had the familiar 'anti-vax template' appearance" and having made "no material reference to Ms Dorman or the circumstances of her dismissal at all".

1. The Appellant is accused of "pressing his misconceived arguments".

1. The above findings were not supported by evidence put before the Commission.

• [104] Paragraph 252 of the Decision is in the following terms:[36]

It ought to be made clear that Mr Rogers is entirely free to hold and exercise his social and political views. But such freedom does not extend to Mr Rogers using clients as a mere vehicle to promote those views before a court or tribunal under the guise of legal proceedings. It was immediately apparent that the extensive (but incompetent) submissions Mr Rogers filed early in these proceedings had the familiar 'anti-vax template' appearance. They made no material reference to Ms Dorman or the circumstances of her dismissal at all. When one then considers the complete absence of meaningful communication between Mr Rogers and Ms Dorman throughout the relevant period, Mr Rogers' conduct as a legal practitioner pressing his misconceived arguments is more than a little concerning.

• [105] Mr Rogers submits that he relies on two categories in respect to the apprehended bias claim: the first is that the Commission seems to infer his political and/or personal beliefs and his political and/or personal beliefs were the driving force behind his involvement in

Ms Dorman's matter, and the second is that the Commission had regard to irrelevant comments made at a mention of the below matter which Mr Rogers says infected how he was dealt with during the course of the costs application.

• [106] Mr Rogers argues that the test is that a "fair-minded lay person would believe there was a reason for apprehended bias".

• [107] Mr Rogers argues that the submissions filed in the proceedings below, objectively, have no reference to political beliefs.[37]

• [108] Mr Rogers submits that there was apprehended bias because of the comments made by him at the mention on 15 November 2022 and, consequently, the Commission formed a view and has informed a bias in terms of how the Commission ultimately dealt with the Decision.[38] Mr Rogers argues that the comments at the mention were irrelevant and that the Commissioner was personally aggrieved by those comments.

• [109] Relevantly, Mr Rogers does not engage with or make submissions with respect to the two-step process as first stated in Ebner v Official Trustee in Bankruptcy.[39] In that regard, Mr Rogers fails to identify what is said that might lead the judge to decide the case other than on its legal and factual merits and to articulate the logical connection between the matter and the factual deviation from the course of deciding the case on its merits. On this basis alone, ground two of the appeal must fail.

• [110] Further, and in any event, the matters raised by Mr Rogers are matters that were relevant to the test the Commission had to apply in the context of the costs application because they relate to the conduct of Mr Rogers. Relevantly, the Commission had regard to matters including the conduct of Ms Dorman and her representative when determining if, pursuant to s 545(2)(a) of the IR Act, Ms Dorman was liable for the costs, or

Mr Rogers, as the representative, was liable pursuant to s 545(2)(b) of the IR Act.

• [111] In determining these matters the Commission had before it the filed documents, the evidence of Ms Dorman at the costs hearing and the Commission's own observations of the conduct of the parties. Whilst Mr Rogers' statement was tendered as an exhibit in the costs proceedings it appears that little weight was placed on its contents on the basis that Mr Rogers failed to attend the costs hearing and, consequently, the Respondent was unable to cross-examine Mr Rogers to test the evidence. The Respondent did not object to the admission of Mr Rogers' statement on the condition that it was not relied on for the truth of its contents.

• [112] The Commission ultimately rejected the assertions made by Mr Rogers.[40]

• [113] With respect to the paragraphs of the Decision identified by Mr Rogers as being infected by apprehended bias, paragraphs 142, 152, 158 and 161 relate to the parts of the Decision wherein the Commission was considering if Ms Dorman should be liable to pay the costs order pursuant to s 545(2)(a) of the IR Act.

• [114] The Commission concluded that Ms Dorman should not be liable at paragraph 162 as follows:

For all of these reasons, the Commission concludes that Ms Dorman bears no responsibility to pay the Respondent's costs.

• [115] In the circumstances of the matter and, given that Ms Dorman was represented by agents throughout the proceedings, the conduct of those agents in the course of Ms Dorman relying on them for her advice and representation was relevant when considering the test to be applied.

• [116] Paragraphs 181 and 182 of the Decision relate to the Commission's reasons with respect to whether Mr Rogers should be liable to pay the costs order pursuant to

s 545(2)(b) of the IR Act.

• [117] Paragraphs 251 and 252 of the Decision fall under the hearing "Other matters".

• [118] Mr Rogers' conduct both in written and oral form together with his conduct when appearing (and failing to appear) before the Commission were relevant matters for the Commission to have regard to in the determination of the matter.

• [119] The matters referred to in paragraphs 181, 182 and 251 are matters that arise out of the information contained in the filed documents, transcripts of mentions and the evidence of Ms Dorman at the costs hearing. The conclusions made by the Commission were open and available to be made by the Commission on the evidence before it.

• [120] Whilst it may be difficult to imagine what other view the Commission may have taken from the evidence, the fact that Mr Rogers now disagrees with those conclusions is besides the point. As already noted, this appeal is not a merits review.

• [121] Mr Rogers appears to be concerned that the Commission considered that he was expressing his political and/or personal views with respect to vaccines and mandates.

• [122] In this regard, the Commission did describe Mr Rogers as pressing his personal and/or "quasi-political" views about vaccines and mandates.

• [123] The ordinary meaning of the word political applies in the context of the Decision. The Macquarie Dictionary defines "political" in the following terms:[41]

adjective 1. relating to or dealing with the science or art of politics: political writers.

1. of or relating to the governing of a nation, state, municipality, etc.: political measures.

1. exercising or seeking power in the governmental or public affairs of a nation, state, municipality, or the like: a political party.

1. relating to or connected with a political party, or its principles, aims, activities, etc.: a political campaign.

1. affecting or involving the state of government: a political offence.

1. engaged in or connected with civil administration: political office.

1. having a definite policy or system of government: a political community.

1. of or relating to citizens: political rights.

1. Colloquial interested in politics: Sheila is not political.

• [124] The Commission observed that the material filed in this matter including the application for reinstatement and the submissions filed by Mr Rogers objected to the relevant Directive which required employees to be administered a COVID-19 vaccine and to establish proof of that to their employer. This reflected a public health policy position taken by the then Queensland State Government which was reflected by directives issued by some Departments within the State which required certain employees, including frontline workers, to comply with the Directive.

• [125] Mr Rogers expressed a view with respect to this matter in a mention on 15 November 2023 as follows:[42]

MR RODGERS: - - - can be discarded. Yes, those can be discarded, because the primary contention is reasonable. The information that the Crown or the department used to make the decision was false. It was false. Absolutely false. If you think that is a defect in our argument, that's fine. I disagree with you. So does most of the country. If a government department is going to make decisions on false information, that is the role of the Commission to objectively, fairly review that matter and give the appropriate orders. That is our [indistinct] proposition. The publicly available information supports that position. And the respondent has not provided any information to the contrary or evidence to support their position. So ...

• [126] This position was more fulsomely put in the Applicant's Outline of Argument. This outline of argument seemingly was filed on 10 November 2022 in the Commission below.[43] Paragraphs one to six of the Outline of Argument make specific and brief references to Ms Dorman. Each of those paragraphs consist of only one sentence. Whereas paragraphs seven to 44 provide detailed submissions regarding why it is contended the Directive issued by the State was unlawful. Mr Rogers summarised the submissions in the final two paragraphs as follows:[44]

Summary - the Vaccination Directive was not a lawful and reasonable direction

1. Covid-19 poses little to no risk to those in the Applicant's demographic (or QLD Health's employees age demographic);
2. "Covid-19 vaccines" do not prevent the transmission of "Covid-19" regardless of the number of doses a person receives, therefore remaining unvaccinated does not "adversely affect the health and safety of other persons";
3. workers have personal duties under s 28 of the Work Health and Safety Act to "take reasonable care for their own health and safety"
4. "Covid-19 vaccines" pose a serious risk of injury and death to individuals that would otherwise not be at risk of serious illness or death from "Covid-19"; and
5. the Respondent has not provided any evidence that "Covid-19" poses a risk to the workplace to any greater degree than other common respiratory illnesses; and
6. the Respondent has not provided any evidence that "Covid-19 vaccines" reduce the transmission of "Covid-19" or reduce the likelihood of contracting "Covid-19";

the Vaccination Directive is not a "lawful and reasonable direction" or a "reasonable policy or procedure relating to health or safety at the workplace".

1. And it is on this basis that the Applicant submits that the termination of the Applicant's employment was "harsh, unreasonable and unjust".

• [127] It is apparent that the statements made by Mr Rogers concerned public health policies implemented by the State and the impact of those policies on individual citizens including employees of the Respondent. Mr Rogers stated a particular view in that regard which could be said to be a political or as the Commission identified it as a "quasi-political" view as they related to the governing of a state, the use of power by the State, and the implementation of matters of policy by the State.

• [128] Given the statements contained in the outline of argument drafted by Mr Rogers, the observations made by the Commission with respect to Mr Rogers' view was available to be made on the material before the Commission.

• [129] Mr Rogers' conduct at the mention on 8 December 2022, which includes Mr Rogers appearing before the Commission and adopting disrespectful language and tone was a relevant consideration when considering the act or omissions of an agent or legal representative in a costs application. Mr Rogers appears to contend that the Commission took a "set against" him because of his conduct at the mention.

• [130] There is no evidence of this. The Commission provided Mr Rogers a number of opportunities to be heard and, as is apparent from the Decision, considered the matter in depth. Indeed, following Mr Rogers' conduct during the mention, the Commission exercised its discretion to grant an indulgence to Mr Rogers by permitting him to file further submissions and amending directions to permit this to occur.

• [131] The Commission's adverse findings with respect to Mr Rogers' conduct do not equate to apprehended bias. Rather, the Commission has provided lengthy reasons setting out the legal and factual basis on which it ultimately concluded that Mr Rogers was liable to pay the Respondent's costs on the basis of Mr Rogers' unreasonable acts and omissions in the course of the proceedings which caused the Respondent to incur costs.

• [132] For these reasons, ground two of the appeal fails.

• [133] Consequently, no errors have been established and the appeal should be dismissed.

• [134] Accordingly, I make the following order:

[1] Mr Rogers acted as the Applicant's agent for most of the proceedings in TD/2022/197.

[2] Dorman v State of Queensland (Queensland Health) [2023] QIRC 335, 1 ('Decision').

[3] Transcript of Proceedings, Dorman v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, TD/2022/197, Dwyer IC, 15 November 2022) 4 ('Transcript of Mention on 15 November 2022'). Please note, the references to Mr Rodgers refer to the Appellant in this matter.

[4] [2021] ICQ 11.

[6] Decision (n 2) [168]-[170] (emphasis in the original) (citations omitted).

[7] Decision (n 2) [134] (citations omitted).

[8] Or until 28 January 2023 when Mr Rogers filed the Form 35 - Notice of withdrawal of appointment of lawyer or agent.

[16] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223.

[17] (2004) 78 ALJR 992.

[19] [2014] ICQ 13.

[20] Ibid [28] (emphasis in original) (citations omitted).

[21] Gareth Rogers, 'Appellant's Outline of Submissions', Submission in Rogers v State of Queensland (Queensland Health), C/2023/48, 23 April 2024, [9] ('Appellant's Outline of Submissions').

[24] Transcript of Proceedings, Dorman v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, TD/2022/197, Dwyer IC, 8 December 2022) 2 (emphasis added).

[25] [2021] ICQ 3.

[26] Ibid [95], citing Lo v Chief Commissioner of State Revenue [2013] NSWCA 180.

[27] Appellant's Outline of Submissions (n 21) [14] (emphasis in original).

[28] Appellant's Outline of Submissions (n 21) [16] (emphasis in original).

[30] Appellant's Outline of Submissions (n 21) [13].

[31] Whilst Mr Rogers' written submissions sought to rely on grounds relating to actual bias as well as apprehended bias, Mr Rogers confirmed at the hearing that he only relied on apprehended bias. See Transcript of Proceedings, Rogers v State of Queensland (Queensland Health) (Industrial Court of Queensland, C/2023/48, Hartigan DP, 22 August 2024) 8 (G Rogers) ('Transcript of Hearing on 22 August 2024').

[33] [2023] ICQ 27.

[34] Ibid [25]-[34] (citations omitted).

[35] Appellant's Outline of Submissions (n 21) [21] (emphasis in original).

[36] Decision (n 2) [252] (citations omitted).

[37] Transcript of Hearing on 22 August 2024 (n 31) 11 (G Rogers).

[39] [2000] HCA 63; (2000) 205 CLR 337.

[41] Macquarie Dictionary (online at 5 June 2025) 'political' (emphasis in original).

[42] Transcript of Mention on 15 November 2022 (n 3) 4 (G Rogers) (emphasis added).

[43] State of Queensland (Queensland Health), 'Outline of Argument (Amended 9 November 2022)', Document 10 of the Appeal Book in Rogers v State of Queensland (Queensland Health), C/2023/48, 10 November 2022, 161-88.