Workers' Compensation Regulator v Adcock (No 2)
[2022] ICQ 20
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- Workers' Compensation Regulator v Adcock (No 2)[2022] ICQ 20
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Workers' Compensation Regulator v Adcock (No 2)[2022] ICQ 20
Workers' Compensation Regulator v Adcock (No 2)[2022] ICQ 20
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020 |
PARTIES: | WORKERS’ COMPENSATION REGULATOR (appellant) v MALCOLM ADCOCK (respondent) |
FILE NO/S: | C/2021/14 |
PROCEEDING: | Appeal |
DELIVERED ON: | 21 June 2022 |
HEARING DATE: | Application for costs considered on written submissions without oral hearing |
MEMBER: | Davis J, President |
ORDER/S: | There be no order as to costs of the appeal |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – COSTS – where the Workers’ Compensation Regulator appealed a decision of the Queensland Industrial Relations Commission (QIRC) varying a decision of the Regulator made under the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act) – where the QIRC found that the respondent was not fit for work until 30 November 2017 – where the Regulator challenged that finding on appeal – where, during the hearing of the appeal, the respondent sought to defend the result in the QIRC on different grounds to that supporting the judgment (the point of contention) – where the hearing of the appeal was adjourned – where the respondent relied on the point of contention – where the appellant on appeal demonstrated error – where the respondent resisted the appeal on the point of contention – where the respondent applied for costs of the appeal – whether the appeal was made vexatiously or without reasonable cause Industrial Relations (Tribunals) Rules 2011 Uniform Civil Procedure Rules 1999, r 681 Workers’ Compensation and Rehabilitation Act 2003, s 144A, s 563 |
CASES: | Adcock v Workers’ Compensation Regulator [2021] QIRC 227, related Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019, cited Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, cited Hanrahan v Wesfarmers Dalgety Ltd (1995) 68 IR 105, cited Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed Oshlack v Richmond River Council (1998) 193 CLR 72, cited Workers’ Compensation Regulator v Adcock [2022] ICQ 016, related |
APPEARANCES: | D Callaghan instructed by the Workers’ Compensation Regulator made written submissions on behalf of the appellant A Wright of Boylan Lawyers made written submissions on behalf of the respondent |
- [1]The Workers’ Compensation Regulator appealed against the decision of the Queensland Industrial Relations Commission (QIRC)[1] which varied the Regulator’s decision under s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act).
- [2]On 24 May 2022, the Regulator’s appeal was dismissed and directions were given on the question of costs as follows:
1. The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.
- The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.
- The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.
- The parties have leave to file and serve by 1 July 2022 any application for leave to make oral submissions on the costs of the appeal.
- In the absence of any application to make oral submissions on the costs of the appeal being filed by 1 July 2022, the question of costs will be decided on any written submissions filed without further oral hearing.
- [3]The parties exchanged written submissions on costs. No party made an application to make oral submissions. On 20 and 21 June 2022, I was informed that no application would be made. There was, therefore, no point in delaying giving judgment on the question of costs.
- [4]This is the determination of the costs issue.
Statutory provisions
- [5]On an appeal from the QIRC to this Court under the Workers’ Compensation Act, the usual rule that costs follow the event[2] does not apply. Section 563 of the Workers’ Compensation Act provides:
“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.”
- [6]Rule 70 of the Industrial Relations (Tribunals) Rules 2011 can be ignored as the rule only concerns the calculation and assessment of costs.
- [7]Section 563 of the Workers’ Compensation Act limits the circumstances under which an award of costs can be made. The discretion to award costs arises “only” where the Court is satisfied that:
- the appeal was made vexatiously; or
- the appeal was made without reasonable cause (the jurisdictional facts).
- [8]In an often cited passage, Wilcox J in Kanan v Australian Postal and Telecommunications Union observed as to the term, “without reasonable cause”:[3]
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.”[4]
- [9]There is no basis here to suggest that the Regulator brought the appeal vexatiously.[5] The issue here is whether, having lost the appeal, the Regulator could be found to have brought it without reasonable cause.
Background facts
- [10]The respondent was employed as a camp cook and suffered a significant injury to his left ankle while at work on 25 August 2015.
- [11]The Regulator determined that Mr Adcock was not entitled to workers’ compensation after 26 August 2016 because, from that point, he could return to modified duties. The QIRC, which may have misunderstood some of the medical evidence, held that the respondent was incapacitated until 30 November 2017.[6] The QIRC made this finding[7] (the finding against the respondent):
“[93] Dr Wilson’s opinion that the incapacity had ceased by 30 November 2017 is broadly consistent with the opinion of Dr Ng, who stated that as of 10 November 2017, the incapacity for work had ceased. Dr Grant also considered that by 12 October 2017, the Appellant was fit for modified duties with the only modification recommended being increased rest breaks if he returned to his previous role. Fitness for ‘modified duties’ in these circumstances does not mean that the Appellant has an ongoing incapacity. Allowing for modifications in the form of occasional rests, the use of orthotics and lifting restrictions to prevent further injury would not normally render a worker incapacitated as these modifications can occur within a range of usual job requirements. Similar restrictions recommended by Dr Wilson were largely concerned with preventing the likelihood of a recurrent injury.” (emphasis added)
- [12]During the hearing of the appeal, it became evident that the respondent’s best case was that the finding against the respondent was wrong and that the respondent was partially incapacitated such that he was unable to work in the labour market in which he was working or might reasonably be expected to work given his qualifications and experience.[8] That would be sufficient to establish his claim.
- [13]The hearing of the appeal was adjourned so that the respondent could properly frame his defence to the appeal by challenging the finding against the respondent. Written submissions were exchanged and further oral submissions were heard.
- [14]In dismissing the appeal, it was found:
- the Regulator had established error;[9] but
- the respondent successfully challenged the finding against the respondent; and
- the respondent successfully defended the appeal.
- [15]The Regulator submits that where it made out its ground of appeal, only to be thwarted by a point made during the hearing and which was so significant that an adjournment was required, it could not be said to have appealed “without reasonable cause”.
- [16]The respondent submits that whatever the reason for the failure of the appeal, it failed. It failed on facts that were known to the appellant.[10] It follows, so the respondent submits, that the appeal was made without reasonable cause.
- [17]The appellant having shown error in the judgment below and having been defeated only on a point raised late in the proceedings cannot be said to have appealed “without reasonable cause”. The Regulator would have been successful had the point of contention not been raised.
- [18]It therefore follows that the discretion to award costs against the appellant does not arise. The appropriate order is there be no order as to costs of the appeal.
- [19]I order:
There be no order as to costs of the appeal.
Footnotes
[1]Adcock v Workers’ Compensation Regulator [2021] QIRC 227.
[2]Uniform Civil Procedure Rules 1999, r 681 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.
[3](1992) 43 IR 257.
[4]At 264-265, followed in Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019.
[5]Hanrahan v Wesfarmers Dalgety Limited (1995) 68 IR 105 at 110.
[6]Workers’ Compensation Regulator v Adcock [2022] ICQ 016 at [53], [56].
[7]Adcock v Workers’ Compensation Regulator [2021] QIRC 227 at [93].
[8]Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177-178.
[9]Workers’ Compensation Regulator v Adcock [2022] ICQ 016 at [56]-[57].
[10]Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.