Pritchard v Workers' Compensation Regulator
[2015] ICQ 24
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- Pritchard v Workers' Compensation Regulator[2015] ICQ 24
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Pritchard v Workers' Compensation Regulator[2015] ICQ 24
Pritchard v Workers' Compensation Regulator[2015] ICQ 24
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 024 |
PARTIES: | Pritchard, Francine (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | C/2013/8 |
PROCEEDING: | Application for costs in an appeal |
DELIVERED ON: | 10 September 2015 |
HEARING DATE: | 1 September 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President D L O'Connor |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION LAW – COSTS – Application for costs granted. |
CASES: | Industrial Relations Act 1999, s 331 Industrial Relations (Tribunals) Rules 2011, rr 45(3)(a), 70 Uniform Civil Procedure Rules 1999, Sch 1, 3 Workers' Compensation and Rehabilitation Act 2003, ss 558(3), 563 Workers' Compensation and Rehabilitation Regulation 2003, s 113 Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) – Decision http://www.qirc.qld.gov.au Latoudis v Casey (1990) 170 CLR 534, 543. MIM Holdings Ltd v AMWU (2000) 164 QGIG 370 Pritchard v Q-COMP (WC/2011/44) - Decision http://www.qirc.qld.gov.au Pritchard v Simon Blackwood (Workers’ Compensation Regulator) [2014] ICQ 002 |
APPEARANCES: | No Appearance for the Appellant. Mr J.C. Dwyer, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
- [1]This is an application by Simon Blackwood (Workers' Compensation Regulator) seeking costs fixed in the sum of $10,208.55 in relation to matters WC/2011/44 and C/2013/8.
Background
- [2]On 11 February 2013, the Vice President dismissed an appeal by the Appellant against a decision of Q-Comp made on 5 January 2011.
- [3]Francine Pritchard (Appellant) filed a Notice of Appeal in the Industrial Registry on 21 February 2011 against a decision of the Review Unit of the Regulator. At the time of hearing in the Commission, the Appellant was employed as a Senior Project Officer or Statistician with the Department of Environment and Heritage Protection. The hearing of the appeal was scheduled for 21 to 24 January 2013.
- [4]There was no appearance for the Appellant on the first day of the scheduled hearing.
- [5]As the Appellant failed to attend the hearing, the Regulator made an application to have the appeal before the Commission dismissed pursuant to either:
- (a)s 331 of the Industrial Relations Act 1999 (Act); or
- (b)r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Rules).
- [6]In dismissing the appeal under s 331 of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act), the Vice President concluded:
"This is a case where the discretion vested in the Commission by s. 331 of the Act warrants the dismissal of the Appellant's appeal as further proceedings by the Commission are not necessary or desirable in the public interest. The Appellant was given an opportunity to provide medical evidence to support her claim for the deferral of the hearing dates. She apparently chose not to obtain such medical evidence and/or the medical evidence was not forthcoming."[1]
- [7]On 26 February 2013, a Notice of Appeal was filed in the Industrial Registry.
- [8]The Notice of Appeal sets out the following grounds:
"The grounds of appeal are: I believe an error/errors were made.
- (a)I had advised of a serious illness and sought some assistance with what to do. It will be many months before specialist will be able to confirm what had occurred, but it is related to a reaction to multiple recent surgeries and the treatment of injuries that I sustained as a work cover injury and subsequent aggravation is.
- (b)I had been ambushed quite late with a number of documents December 20, 2012 and had sought leave to have this excluded on the basis of relevance.
- (c)I have raised a victimisation and retribution case with the ADCQ as a result of an earlier settlement in 2012 for discrimination. The behaviour immediately changed when notice was given that I would proceed with the hearing before the QIRC. I am not aware of which occurs first, but it is my assertion that the matter before the ADCQ needs to be heard and dealt with first. This is quite serious as part of the victimisation includes actions which may have permanently damage my hearing in my all left which was only restored in May 2012 and this has severely hampered my ability to represent myself. If the worst case scenario occurs I am likely to become profoundly deaf again with no ability to be assisted by hearing aids. In hand writing with the following was added to the grounds of appeal I believe an error oblique errors were made."
- [9]At the hearing of the appeal before this Court, the Appellant again failed to attend. No reason was provided to the Court for her non-attendance.
- [10]In dismissing the appeal, I made the following findings:
"[24] The appellant has demonstrated a consistent pattern of behaviour and conduct which disregards the directions of both the Court and the Commission. In doing so, the appellant has brought upon the Commission and the Court delay and expense in terms of the conduct of the matter by the respondent and, no doubt, an impost on the public purse because the Commission and the Court have invested significant time and effort to progress the matter and are put to expense in dealing with the delays which have been brought upon both parties by the appellant.
[25] Having considered the appellant's conduct and the material before me, and after hearing the submissions of the respondent, I have no confidence that the appellant could proceed with her appeal in the ordinary course.
[26] The matters which have particularly played on my mind have been the failure by the appellant to comply with the directions of the Court and the Commission to provide written submissions, her failure to respond in any meaningful way to the respondent's request for medical certification to substantiate her non-compliance with both the Act and the Rules, and her failure to attend the scheduled hearing of this appeal.
…
[33] The appellant has not demonstrated that the Vice President erred in her exercise of discretion in dismissing the appeal.
[34] I am of the opinion that it would not be in the public interest for this appeal to continue and, accordingly, in exercise of my discretion pursuant to s 331 of the Act, I dismiss the proceedings."[2]
Costs
- [11]The appellant was ordered to pay the respondent's costs in both the Commission and this Court.
- [12]The Court's power to grant costs in the Court is found in s 563 of the WCR Act. That section provides:
"Section 563 Costs 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."
- [13]Rule 70 of the Industrial Relations (Tribunals) Rules 2011 provides as follows:
"Rule 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."
- [14]In MIM Holdings Ltd v AMWU[3] in considering the phrase "without reasonable cause" in s 335 of the Industrial Relations Act 1999, Hall P 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."
- [15]
"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."[5]
- [16]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."[6]
- [17]In considering the exercise of the discretion conferred by s 563 WCR Act, I made the following ruling:
"[38] The grounds of appeal relied upon by the appellant are set out in paragraph [13] above. In ground (a), the appellant raises a serious illness that was impeding her ability to conduct her appeal and for which the appellant has consistently failed to provide any independent medical evidence. In relation to ground (b), the appellant claims that she was "ambushed quite late with a number of documents … and had sought leave to have this excluded on the basis of relevance". The documents complained of were produced by the respondent as a consequence of an attendance notice to produce. The documents were relevant to the proceedings as they were directed towards stressors associated with management action allegedly undertaken by her employer. The final ground of appeal raises matters which are both irrelevant and unnecessary for the prosecution of her appeal.
[39] Whilst the appellant is a self-represented litigant, she is by no means unsophisticated. She holds a tertiary qualification, she has already been engaged in some significant litigation before the Commission and, indeed, has submitted detailed and comprehensive submissions in another matter before Industrial Commissioner Thompson.
[40] Having regard to the conduct of the appellant and the past indications of her unsustainable submissions – in particular, the medical conditions that are unsupported by medical evidence – on any reasonable reading of the matters before the Court, it could not be concluded that the appeal has been brought on reasonable grounds.
[41] I am of the view that, on any objective assessment, the appellant's appeal was, at the time it was filed in the Industrial Registry, misconceived and doomed to failure."[7]
- [18]
"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."[9]
His Honour, the Chief Justice further stated:
"Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings."[10]
McHugh J said:
"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."[11]
- [19]Costs before the Commission are calculated in accordance with s 558(3) of the WCR Act, Schedule 3 Scale of Costs - Magistrates Court, Scale E of the Uniform Civil Procedure Rules 1999 (UCPR) and s 113 of the Workers' Compensation and Rehabilitation Regulation 2003.
- [20]Section 558(3) provides:
- (3)Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.
- [21]The Applicant has submitted that it is entitled to scale costs in the sum of $6,380.00 as set out below:
Item 5(a) - Preparation for trial where counsel is engaged - $2,420.00
Item 7(c) - Attendance of clerk with solicitor acting as advocate - each day $275.00
Item 10 - Applications to the Court - $370.00
Counsel's fees:
Item 6(b) - to settle special affidavit, reply or particulars $100.00
Item 6(d) - on conference - 7 hours at $175.00 - $1,225.00
Item 6(f) - on first day of hearing $1,085
Item 6(g) - on second day of hearing $725.00
Item 6(j) - on application in a proceeding $180.00
- [22]The Applicant also seeks costs in the Court of $3,828.55. In the Court, costs are calculated in accordance with r 70 of the Industrial Relations (Tribunal) Rules 2011 and as prescribed by s 563 of the WCR Act. Rule 70 provides that in proceedings before the court, the costs payable on the Supreme Court scale of costs under the Schedule 1 of the UCPR.
- [23]The following brief chronology is extracted from the information deposed by Ruth Jamieson in her affidavit filed in the Commission on 27 August 2015. As the chronology clearly demonstrates, the Regulator has made numerous attempts to contact the appellant in relation to the recovery of their costs.
Chronology
12 November 2013 Hearing of C/2013/8
16 January 2014 Decision given in C/2013/8 Pritchard v Simon Blackwood (Workers’ Compensation Regulator) [2014] ICQ 002
7 February 2014 Ms Joanne Webb (from the Regulator) sent correspondence to the Appellant seeking Regulator's costs of hearings before Court and Commission
10 March 2014 Ms Webb sent an email to the Appellant seeking response to earlier correspondence
10 July 2014 Ms Webb contacted the Appellant by telephone
29 July 2015 Ms Webb attempted to contact the Appellant by telephone
29 July 2015 Ms Webb sent email correspondence to the Appellant requesting contact
29 July 2015 Ms Webb sent a text message to the Appellant requesting contact
29 July 2015 The Appellant responded to Ms Webb's text message via text message
29 July 2015 Ms Webb sent a reply message to the Appellant via text message requesting that the Appellant contact her
29 July 2015 | Ms Webb forwarded further correspondence to the Appellant via ordinary and registered post |
20 August 2015 | Ms Webb accessed registered post tracking records online in relation to the letter posted to the Appellant on 29 July 2015 and made a print screen from the online site |
21 August 2015 | Ms Webb sent email correspondence to QIRC Registry and Associate to Deputy President O'Connor requesting a further order in this matter |
27 August 2015 | The Appellant sent correspondence via email to the Associate to Deputy President O'Connor |
- [24]The email correspondence from the appellant to my Associate on 31 August 2015 states "I am greatly confused by the correspondence I received. It is the first time I have seen any of this."
- [25]As the chronology demonstrates, the statement of the appellant is far from accurate.
- [26]The "Appeal Event Report"[12] of Ms Webb dated 10 June 2014 notes that Ms Pritchard was advised about the Regulator's claim for costs. In particular, Ms Webb requested information from Ms Pritchard concerning her medical conditions and supporting evidence which might be used as a basis for waiving the costs. The file note records:
"Enquired what the name of these doctors are and I can write to them and ask them about her disability so that I can work out whether costs should be waived.
Appellant informed me that it was rather complicated and she couldn't remember their names. Requested Appellant contact me within 2 weeks and tell me the names of the doctors or provide me medical evidence otherwise I will have no choice but to seek an order for costs and refer the matter for recovery proceedings."
- [27]Notwithstanding a series of attempts to communicate with the appellant, no response was received by the Regulator.
- [28]The most recent email from the appellant and forwarded to my Chambers on the morning of the hearing of the matter recognises that "QComp has an immediate and significant outstanding bill."
- [29]I am satisfied that this is an appropriate matter in which I should exercise my discretion[13] under s 558 and s 563 of the WCR Act to award costs.
Order
- [30]The appellant pay the respondent's costs in matter WC/2011/44 and C/2013/8 fixed in the sum of $10,208.55 within 14 days of the date of the order.
Footnotes
[1] Pritchard v Q-COMP (WC/2011/44) - Decision
[2] Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002.
[3] MIM Holdings Ltd v AMWU (2000) 164 QGIG 370.
[4] Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) – Decision
[5] Ibid.
[6] Ibid.
[7] Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002.
[8] Latoudis v Casey (1990) 170 CLR 534, 543.
[9] Ibid.
[10] Ibid.
[11] Ibid, 567.
[12] Exhibit RJ(3) to the Affidavit of Joanne Webb.
[13] See: House v The King (1936) 55 CLR 499.