The Industrial Relations Commissioner has delivered a scathing assessment of a lawyer’s conduct in an employment matter, making a personal costs order against the practitioner and referring him to the Legal Service Commissioner.
Commissioner Dwyer labelled Brisbane lawyer Gareth Rogers’ incompetence a liability to the profession last month when he ordered the Queensland Industrial Relations Commission (QIRC) proceedings be discontinued.
Mr Rogers was ordered to pay $9062 within 14 days to Queensland Health, which had validly dismissed his client Delma Dorman from her position at Caboolture Hospital in July last year over her refusal to have a mandatory COVID-19 vaccine.
In his 47-page decision, Commissioner Dwyer said it was “difficult to imagine a set of circumstances more deserving of a costs order” after outlining Mr Rogers’ extraordinary handling of Ms Dorman’s reinstatement application in order to push his anti-vaccination agenda.
The saga began in August last year with Ms Dorman being represented by Natasha Misko, a self-described “senior human rights advocate”. Ms Misko attempted to file Ms Dorman’s application unsigned, then filed an amended application outside the statutory time limit.
In September, Mr Rogers, of anti-vaccination group Reignite Democracy Australia, became Ms Dorman’s representative.
He made submissions which were “in simple terms, woefully incompetent”, Commissioner Dwyer said.
Without notice or leave to be excused, neither Mr Rogers nor Ms Dorman attended a mention in November, with Mr Rogers to be informed “that the submissions filed were so deficient and misconceived that, if the matter proceeded further, the Commission was very much open to a personal costs order against him”.
A week later Mr Rogers filed another set of submissions without leave from the Commission or Ms Dorman’s consent, which “remained largely identical to the earlier submissions filed i.e., they were template anti-vaccine submissions that did not address any binding or influential Queensland decisions or the unique particulars of Ms Dorman’s claim”.
At the next mention Mr Rogers appeared by phone, without seeking leave, and Ms Dorman failed to attend as directed. After a caution about disrespectful language, Mr Rogers was again warned the application lacked merit and that he was at risk of a personal costs order being made against him.
He made no attempt to amend the submissions or discontinue the application.
On the last business day before the January 30 hearing, Mr Rogers emailed the Commission to advise Ms Dorman could not attend the hearing in person as required. The QIRC responded that it required Ms Dorman to appear in person.
The following day, a Saturday, Mr Rogers applied to discontinue the proceeding. On the Sunday, Crown Law, (on behalf of Queensland Health) objected to the discontinuance and submitted the matter should be heard on the papers, or alternatively, that the matter be discontinued on the condition its costs be paid by either Mr Rogers or Ms Dorman.
On the Monday, the Commission vacated the hearing and directed Crown Law, Mr Rogers and Ms Dorman to each file submissions on costs. Mr Rogers did not initially comply with this direction.
At the costs hearing on 17 March, the Commission told Mr Rogers it was satisfied Ms Dorman had no understanding of the submissions filed on her behalf and had never seen them; was unaware her application was at risk of being dismissed; and was not aware of the costs risk (among other conclusions).
The parties reached an “in principle” agreement and the matter was adjourned pending completion of settlement.
On 27 March, Mr Rogers advised Crown Law and the Commission he would not settle. When the hearing resumed on 23 May, Mr Rogers failed to attend as directed, and was not contactable.
“By this time, after all that had transpired since September 2022, the Commission was no longer prepared to waste time indulging Mr Rogers’ recalcitrant conduct,” Commissioner Dwyer said.
He said despite the Commission reiterating its concerns multiple times, Ms Dorman’s representatives persisted with the application.
In assessing who should pay the costs, Commissioner Dwyer said while Ms Dorman’s application was fundamentally misconceived, it did not appear she was aware of this at the outset.
“It would be a particularly unjust reading of s 545(2)(a)(i) of the Industrial Relations Act if it were to potentially trigger a costs order against a hapless and distressed individual who, feeling aggrieved by their dismissal but lacking insight, filed a reinstatement application only to find it was misconceived,” he said.
“Ms Dorman unfortunately selected representatives who were incompetent and who appeared to be motivated by a desire to promote their own quasi-political agenda.”
It was determined Mr Rogers’ liability for costs began as a consequence of his unreasonable acts and omissions on or after 4 November 2022.
Commissioner Dwyer said by this time, Mr Rogers had been directly informed by the Commission that his submissions were incompetent, and he was at risk of a personal costs order, and at a bare minimum should have consulted Ms Dorman.
“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,” he said.
Commissioner Dwyer said Mr Rogers’ failure to prepare for the hearing – which Mr Rogers had requested – was inexcusable and plainly an unreasonable act or omission.
“Considered in isolation, it is tempting to consider that Mr Rogers’ conduct only rises to the level of gross incompetence. But in the broader context of the matter, it is not difficult to conclude from his consistently disrespectful attitude, that Mr Rogers was wilfully ignorant of the objections and concerns raised by the Respondent and the Commission. He did not know, and more importantly, he did not care to know,” he said.
“As a consequence of the litany of unreasonable acts and omissions of Mr Rogers that are set out above, he has personally caused the Respondent to incur numerous costs. There could be few clearer factual scenarios warranting the exercise of the Commission’s discretion to impose a personal costs order on him.”
Commissioner Dwyer then explained his decision to refer Mr Rogers to the Legal Services Commission.
“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.”
He said throughout the proceeding, the Commission “had the impression Mr Rogers’ personal views were at the forefront of his representation, and his professional duties to the Commission and his client were secondary”.
“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,” he said.
“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.
“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.”