Burton v Workers' Compensation Regulator (No 2)
[2022] ICQ 29
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Burton v Workers' Compensation Regulator (No 2)[2022] ICQ 29
- Add to List
Burton v Workers' Compensation Regulator (No 2)[2022] ICQ 29
Burton v Workers' Compensation Regulator (No 2)[2022] ICQ 29
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Burton v Workers’ Compensation Regulator (No 2) [2022] ICQ 029 |
PARTIES: | EVAN GILBERT BURTON (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2022/2 |
PROCEEDING: | Appeal |
DELIVERED ON: | 9 September 2022 |
HEARING DATE: | Orders made on written submissions with no oral submissions |
MEMBER: | Davis J, President |
ORDER/S: | No order as to costs of the appeal |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – COSTS – where a worker appealed a decision of the Queensland Industrial Relations Commission (QIRC) from a decision of the Workers’ Compensation Regulator – where the worker suffers from cervical spondylosis – where the existence of the injury was not questioned – where an appeal from the QIRC is only on the ground of error of law – where it was argued that legal error had occurred in the making of factual findings – where the appeal was dismissed – where the Regulator seeks costs – whether the appeal was not made vexatiously – whether the appeal was made without reasonable cause Industrial Relations Act 2016, s 557, s 565 Industrial Relations (Tribunals) Rules 2011, s 70 Uniform Civil Procedure Rules 1999, s 681 Workers’ Compensation and Rehabilitation Act 2003, s 32, s 563 |
CASES: | Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019, cited Burton v Workers’ Compensation Regulator [2021] QIRC 437, related Burton v Workers’ Compensation Regulator [2022] ICQ 017, related Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed Oshlack v Richmond River Council (1998) 193 CLR 72, cited Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, cited Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020, cited Yousif v Workers’ Compensation Regulator [2019] ICQ 10, cited |
APPEARANCES: | T Nielsen instructed by Carter Capner Law made written submissions for the appellant D Callaghan instructed directly by the Regulator made written submissions for the respondent |
- [1]Evan Gilbert Burton appealed to this Court from a decision of the Queensland Industrial Relations Commission (QIRC) which confirmed a decision of the Workers’ Compensation Regulator denying his claim for workers’ compensation.[1] On 8 June 2022, the appeal was dismissed, and reasons were delivered on 17 June 2022.[2]
- [2]The Regulator applies for costs of the appeal calculated pursuant to the Industrial Relations (Tribunals) Rules 2011[3] in the sum of $5,211.77.
Background
- [3]After completing his apprenticeship with JJ Richards & Sons Ltd (JJ Richards), Mr Burton continued to work for that company. He was a long-term employee having worked for JJ Richards from 1991 to 2015.
- [4]Mr Burton suffers from cervical spondylosis. He claimed that was a compensable injury under the Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act)[4] because the injury was at least aggravated by his work.
- [5]The Regulator determined that there was no causal connection between the injury and Mr Burton’s work. It dismissed his claim. He appealed unsuccessfully to the QIRC.[5]
- [6]Before the QIRC, there was evidence from five doctors. Four, Drs Delaney, Tomlinson, Johnson and Campbell gave evidence in support of Mr Burton’s claim. The Regulator led evidence from Dr Atkinson.
- [7]The doctors called by Mr Burton opined that there was a causal connection between the injury and the posture which Mr Burton adopted at work. Dr Atkinson opined that the injury was unlikely to be caused by Mr Burton working with his neck in a flexed position and attributed the injury to leisure activities undertaken by Mr Burton such as kayaking, rock climbing, golf and paddle boarding.
- [8]In the QIRC, the evidence of Dr Atkinson was preferred and the application dismissed.
- [9]There were eight grounds of appeal. Only three were argued, but the real complaint was reflected in ground 5, which was:
- “(5)The Deputy President erred in preferring Dr Atkinson’s opinion to the opinions expressed by Drs Tomlinson, Delaney, Campbell and Johnson.”
- [10]All grounds failed.
- [11]On an appeal from the QIRC to this Court under the Workers’ Compensation Act, s 563 displaces the usual rule that costs follow the event.[6] That section 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.”
- [12]Rule 70 of the Industrial Relations (Tribunals) Rules 2011 only concerns the calculation and assessment of costs.
- [13]Section 563 bestows a discretion upon the Court to award costs. That discretion only arises if one of two jurisdictional facts is established. They are:
- satisfaction by the Court that the appeal was made vexatiously; or
- satisfaction by the Court that the appeal was made “without reasonable cause”.
- [14]It is not suggested that the appeal was made vexatiously.
- [15]In a consistently cited passage, Wilcox J in Kanan v Australian Postal and Telecommunications Union[7] said of the term, “without reasonable cause”:
“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.”[8] (emphasis added)
Consideration
- [16]The fact that the appeal has failed does not mean that the appeal was made “without reasonable cause”.[9]
- [17]The grounds of appeal that were pressed all complained of factual errors. Even ground 5 alleged an error of fact, namely, preferring one witness’s evidence over that of others.
- [18]That has significance given s 557(2) of the Industrial Relations Act 2016, which provides for an appeal to this Court only on the ground of error of law or excess or want of jurisdiction, except by leave. The grounds upon which leave can be given are limited[10] and leave has not been sought.
- [19]However, Mr Burton did not, on appeal, just submit that his four doctors ought to have been preferred on the basis of reliability or expertise. They are all clearly matters of fact. His argument was more subtle and relied on Ribeiro v Workers’ Compensation Regulator.[11]
- [20]In Ribeiro, a number of principles were identified concerning the approach a court ought to take to the assessment of conflicting expert evidence.
- [21]Mr Nielsen, who appeared for Mr Burton, then advanced ground 5 by reference to the legal principles in Ribeiro and the reasons of the QIRC.
- [22]As earlier observed, the ground of appeal failed. However, as the primary judgment reveals, the various arguments deserved significant analysis.
- [23]I do not find that the appeal was made “without reasonable cause”.
- [24]It follows that the discretion to award costs against Mr Burton has not arisen.
- [25]The appropriate order is that there be no order as to costs.
- [26]I order that there be no order as to costs of the appeal.
Footnotes
[1] Burton v Workers’ Compensation Regulator [2021] QIRC 437.
[2] Burton v Workers’ Compensation Regulator [2022] ICQ 017.
[3] Rule 70.
[4] Section 32, “meaning of injury”.
[5] Burton v Workers’ Compensation Regulator [2021] QIRC 437.
[6] Uniform Civil Procedure Rules 1999, which applies in courts other than the Industrial Court of Queensland, r 681 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.
[7] (1992) 43 IR 257.
[8] At 264-265, followed in Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019 and Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020.
[9] Yousif v Workers’ Compensation Regulator [2019] ICQ 10.
[10] Industrial Relations Act 2016, s 565.
[11] [2019] QIRC 203.