Walz Construction Co Pty Ltd v de Jong
[2015] ICQ 10
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- Unreported Judgment
- Walz Construction Co Pty Ltd v de Jong[2015] ICQ 10
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Walz Construction Co Pty Ltd v de Jong[2015] ICQ 10
Walz Construction Co Pty Ltd v de Jong[2015] ICQ 10
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Walz Construction Co Pty Ltd v de Jong and Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 010 |
PARTIES: | Walz Construction Co Pty Ltd (Applicant) v Philip de Jong (Respondent) Simon Blackwood (Workers' Compensation Regulator) (Second Respondent) |
CASE NO: | C/2014/27 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 25 March 2015 |
HEARING DATE: | 25 February 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR COSTS – Whether appeal made without reasonable cause – Whether application to amend the application to appeal made without reasonable cause – Whether application to adduce additional evidence made without reasonable cause – Application for costs granted in part. |
CASES: | Industrial Relations (Tribunals) Rules 2011 Workers Compensation and Rehabilitation Act 2003 Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) – Decision Desmond Lloyd George v. Allied Express Transport Pty Limited (2003) 173 QGIG 158 Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Larorb Pty Ltd t/a Sunshine Office Supplies v Allan Thomas Ball (2003) 174 QGIG 1013 MIM Holdings Ltd v Automotive Metals, Engineering Printing and Kindred Industries Industrial Union of Employees (2000) 164 QGIG 296 Philip de Jong AND Q-COMP (WC/2011/362) - Decision Reddick v Ocean Spirit Cruises Pty Ltd (1999) 161 QGIG 163 Walters v B.T. Equipment Pty Ltd (No 2) (2002) 169 QGIG 227 |
APPEARANCES: | Mr J. Dwyer, Counsel instructed by AI Legal Group for the Applicant. Mrs J. de Jong, agent for the Respondent. Ms C. Godfrey for the Workers’ Compensation Regulator. |
DECISION from the bench
Background
- [1]Mr Philip de Jong alleged that he suffered a workplace injury on 1 February 2011 whilst employed as a rigger with Walz Constructions Pty Ltd on the Whitehaven Coal CHPP Project at Narrabri, New South Wales.
- [2]In the application for compensation, Mr de Jong claimed to have injured his right shoulder, back and right leg as a result of lifting steel weighing approximately 100 kilograms and carrying that steel for more than 40 meters. Walz Construction denies any knowledge of the worker being injured at work in the manner described.
- [3]Commissioner Fisher heard the matter in the Commission and made the finding that the Commission was unable to be satisfied that the worker sustained the injury in the manner he claimed to have done. She found that "the Commission cannot find that Mr de Jong’s injury arose out or in course of employment, or that employment was a significant contributing factor to the injury"[1] the appellant sustained in a manner he claimed, and confirmed the decision of the Regulator.
- [4]On 13 December 2012, Mr de Jong filed an application to appeal in the Industrial Registry against the decision of the Commission.
- [5]On 18 July 2013 an amended application to appeal was filed. The appeal was subsequently heard before the Court.
- [6]This appeal has been brought under the provisions of the Workers Compensation and Rehabilitation Act 2003 (the Act). Section 563 of the Act provides as follows:
563Costs of appeal to industrial court
- (1)On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.
- (2)Costs of the order are to be in accordance with the Industrial Relations (Tribunals) Rules 2011, rule 70.
- [7]Regulation 50 of the Industrial Relations (Tribunals) Rules 2011 (the Rules) provides:
70 Costs
- (1)This rule applies if the court or commission makes an order for costs under section 335 of the Act.
- (2)The court or commission, in making the order, may have regard to—
- (a)for a proceeding before the commission—the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 3; or
- (b)for a proceeding before the full bench—the costs payable on the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999, schedule 2; or
- (c)for a proceeding before the court—the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
- (d)any other relevant factor.
- (3)The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.
- [8]A notice of agency was filed in the Industrial Registry appointing Mrs Julie-Anne de Jong as the agent for Mr de Jong.
- [9]The matter was mentioned on 9 February 2015. It was agreed between the parties on that occasion that to ensure that Mr de Jong had capacity to provide instructions to Mrs de Jong, the following two questions were to be provided to his medical practitioners:
- whether or not Mr de Jong was of sufficient capacity to provide instructions on legal matters to his wife or any other representative acting on his behalf in respect of these proceedings; and
- whether he was capable of understanding the advice of his wife or any other representative acting on his behalf in respect of legal proceedings.
- [10]On 12 February 2015, Dr Yates advised the Industrial Registrar that Mr de Jong was able to understand and convey his wishes to his wife for the pending court matters.
- [11]On 13 February 2015, Dr Eshuys advised that in her opinion, although Mr de Jong remained unfit to attend court proceedings, he has sufficient capacity to instruct his wife or another representative acting on his behalf with regard to legal matters. She went on to note that it was also her opinion that he has the capacity to understand any resulting advice from Julie-Ann or another representative acting on his behalf.
- [12]In light of the medical advice I am satisfied that Mr de Jong has the capacity to provide instructions on legal matters to his wife or any other representative.
- [13]Walz Construction seeks an order that Mr de Jong pay the costs in accordance with section 563 of the Act and r 70 of the Rules in respect of both the appeal (C/2012/37) and/or the application to amend the application to appeal and/or application to adduce additional evidence at the hearing of the appeal.
- [14]It is Walz Construction's contention that the appeal, the application to amend the application to appeal and the application to adduce additional evidence at the hearing of the appeal were made without reasonable cause. Walz Construction do not argue that the appeal or the applications were brought vexatiously.
- [15]In Desmond Lloyd George v Allied Express Transport Pty Limited [2] , an application that was heard before Commissioner Blades under s 335(1)(a) of the Industrial Relations Act, the position of the meaning of "reasonable cause" was put in the following terms – there the Commissioner said:
"There have been many decisions where s. 335(1)(a) of the Act has been applied, mostly in the appellate jurisdiction of the Court. President Hall has left open in two fairly recent decisions, the question of whether an applicant for costs under s. 335(1)(a) must show that the case is an exceptional one perhaps verging on an abuse of process - see Earner v Queensland Investment Corporation and QIC Properties Pty Ltd (No 2) (2002) 169 QGIG 132 and M.H. and J.E. Jensen (Partnership) v Wridgways Pty Ltd (2002) 169 QGIG 284. However, it does seem that 'without reasonable cause' as used in conjunction with the word 'vexatiously' sets the lower standard for an award of costs."[3]
- [16]In Heidt v Chrysler Australia Ltd [4] , a case involving the Commonwealth statute, Northrop J wrote:
"The policy of s. 197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court."[5]
- [17]Similarly, in Reddick v Ocean Spirit Cruises Pty Ltd [6] , Chief Commissioner Hall (as his Honour then was) viewed the adjective 'unreasonable' in s 225(1)(b) of the Workplace Relations Act 1997 as taking its colour from s 225(1)(a). His Honour went on to write:
"It is insufficient to show inadvertence or even neglect. What must be shown is an abuse of process attracting opprobrium of the same magnitude as is attracted by launching an application frivolously or vexatiously or without reasonable cause."[7]
- [18]A similar approach was adopted by her Honour the Vice President in Larorb Pty Ltd t/a Sunshine Office Supplies and Allan Thomas Ball [8] . There her Honour wrote:
"Without reasonable cause in s 335(1)(a) of the Act should also take their colour from the word 'vexatiously' and bearing in mind the statements of Northrop J (supra) dealing with the Commonwealth Act, the phrase suggests conduct verging on an abuse of process."[9]
- [19]It was submitted to the Court by Counsel for Walz Constructions that Mr de Jong’s prospects of succeeding on the original appeal were poor. In fact, I formed the view that in many respect the hurdle on which the appellant had to reach was far too high and it was verging, in most instances, on hopeless.
- [20]In Walters v B.T. Equipment Pty Ltd (No 2)[10], the Full Bench dealt with this same matter. There the Full Bench noted:
"The application for leave to appeal was neither made vexatiously nor made without reasonable cause. The most severe criticism which may be made of the application for leave is that the applicant's legal advisers made a forensic error in the construction of a novel, clumsily drafted and untested statutory provision. A conclusion that the application was not arguable may only be reached by basking in the wisdom of hindsight. There was no vexation or abuse of process."[11]
- [21]The grounds of appeal were, on any reasonable view, general, unparticularised and not referenced to any evidence or findings of Commissioner Fisher. The application to amend attempted to address the obvious shortcomings but nevertheless fell far short of what might be reasonably expected. The application to amend constituted a case very much different from the one originally advanced by the appellant. It also raised the prospect of a breach of the 21 day limit.
- [22]The original appeal was, in my view, hopeless from the outset. It was on any view inadequate. The application to adduce additional evidence was more problematic. It could never be said that, on the material before the court, that the principle applicable to the exercise of a discretion to admit additional evidence could have been met, namely, that the court could conclude that had the evidence been before Commissioner Fisher, it would be 'almost certain' or 'reasonably clear' that a different result would have followed.
- [23]Counsel for Walz Construction referred me to the decision of his Honour President Hall in Mount Isa Mines Limited v The Australian Workers' Union of Employees and Others [12] where he wrote:
"It seems to me to be more likely that s 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made."[13]
- [24]
"There is no readily apparent reason for this difference in capacity to award costs. It may be that the restriction on the Industrial Court’s power is intended to mirror the provisions in the Industrial Relations Act 1999 (s 335). If so, the mirror has not been used for the power of the Commission to award costs. It is an inconsistency which does not appear to have a sound basis."[15]
- [25]In any event, his Honour went on to conclude:
"Where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event. The appeal from the decision of the Commission in these circumstances was one which was brought without reasonable cause."[16]
Accordingly, his Honour awarded costs.
- [26]For the reasons advance above and in light of the authorities, I have formed the view that the discretion to award costs has been enlivened. In exercising my discretion, I think it is appropriate to deal with the three separate matters before the court.
- [27]Having formed the view that the original appeal, though inadequately drafted, was nevertheless capable of being salvaged and to that extent one can understand the basis upon which an application to amend was made. However, the same cannot be said about the application to adduce further evidence.
- [28]For the reasons identified it was, in my view, doomed to fail and could not succeed at the time when the application was made.
- [29]In regard to the further evidence, it was full of hearsay, without any explanation for the absence of direct evidence and in some instances, for example, the CraneSafe records and the alleged recanting of Sermon's evidence, matters that were already known to the appellant.
- [30]In the circumstances, I propose to deal with the three matters separately in making my orders.
Orders
- [31]I make the following orders:
- In relation to appeal C/2012/37, I would make no order as to costs.
- In relation to the application to amend the application to appeal I would make no order as to costs.
- In relation to the application to adduce additional evidence I order that in accordance with section 563 of the Workers' Compensation and Rehabilitation Act 2003 and r 70 of the Industrial Relations Tribunal Rules, Philip de Jong pay Walz Constructions its costs of and incidental to the application.
- Liberty to apply.
Footnotes
[1] Philip de Jong AND Q-COMP (WC/2011/362) - Decision
[2] Desmond Lloyd George v. Allied Express Transport Pty Limited (2003) 173 QGIG 158.
[3] Desmond Lloyd George v. Allied Express Transport Pty Limited (2003) 173 QGIG 158, 158.
[4] Heidt v Chrysler Australia Ltd (1976) 26 FLR 257.
[5] Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272.
[6] Reddick v Ocean Spirit Cruises Pty Ltd (1999) 161 QGIG 163.
[7] Reddick v Ocean Spirit Cruises Pty Ltd (1999) 161 QGIG 163, 163.
[8] Larorb Pty Ltd t/a Sunshine Office Supplies v Allan Thomas Ball (2003) 174 QGIG 1013.
[9] Larorb Pty Ltd t/a Sunshine Office Supplies v Allan Thomas Ball (2003) 174 QGIG 1013, 1014.
[10] Walters v B.T. Equipment Pty Ltd (No 2) (2002) 169 QGIG 227.
[11] Walters v B.T. Equipment Pty Ltd (No 2) (2002) 169 QGIG 227, 227.
[12] MIM Holdings Ltd v Automotive Metals, Engineering Printing and Kindred Industries Industrial Union of Employees (2000) 164 QGIG 296.
[13] Ibid.
[14] Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) – Decision
[15] Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) – Decision
[16] Ibid.