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Adcock v Workers' Compensation Regulator[2025] ICQ 14

Adcock v Workers' Compensation Regulator[2025] ICQ 14

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Adcock v Workers' Compensation Regulator  [2025] ICQ 14

PARTIES:

Adcock, Malcolm

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

C/2023/38

PROCEEDING:

Appeal

DELIVERED ON:

4 August 2025

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Pursuant to s 562(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Queensland Industrial Relations Commission delivered on 15 September 2023 in Matter Number WC/2019/64 is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHEN APPEAL LIES – where the Appellant filed an appeal against a decision of the Queensland Industrial Relations Commission – where the Appellant sought costs – where the Commission granted the costs application against the Respondent – where the Appellant appeals the costs decision – whether the Commission has power to award costs – whether the Commission made an error of law in assessing the costs in the proceedings below –  decision of the Commission confirmed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the Appellant contends that the Commission should have ordered costs with respect to closing written submissions – where the Appellant contends that there should have been an uplift to costs – whether the Commission made an error of law – whether the appeal should be granted – whether an uplift of the costs should be awarded to the Appellant – decision of the Commission confirmed

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A

Industrial Relations (Tribunals) Rules 2011 (Qld), r 18

Uniform Civil Procedure Rules 1999 (Qld), r 681, sch 2

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 5, s 114A, s 114B, s 553, s 558, s 561, s 562

Workers' Compensation and Rehabilitation Regulation 2014 (Qld), reg 132, reg 133 

CASES:

Adcock v Workers' Compensation Regulator [2017] QIRC 86

Adcock v Workers' Compensation Regulator [2021] QIRC 227

Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266

Anderson v Pickers Auctions Pty Ltd (2023) 17 QR 134

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services [2019] ICQ 23

DL v The Queen (2018) 266 CLR 1

House v The King (1936) 55 CLR 499

Martin v Rowling & Anor [2005] QCA 128

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

Simon Blackwood (Workers' Compensation Regulator) v Pearce [2015] ICQ 12

Smith v The Queen (1994) 181 CLR 338

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

The Ombudsman v Laughton (2005) 64 NSWLR 114

Turay v Workers' Compensation Regulator [2023] ICQ 13

Workers' Compensation Regulator v Adcock [2022] ICQ 16

Workers Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13

Reasons for Decision

Introduction

  1. [1]
    Malcolm Adcock ('the Appellant') appeals against an order for costs issued by the Queensland Industrial Relations Commission ('the Commission').
  1. [2]
    Relevantly, the Appellant seeks, on appeal, to set aside the decision issued by the Commission on 15 September 2023 which is in the following terms:

The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65.[1]

  1. [3]
    Whilst the Appellant has the benefit of the costs outlined in the decision, he seeks to appeal the order on the basis that the Commissioner erred, inter alia, in not awarding additional costs sought by the Appellant.

The Appeal to this Court

  1. [4]
    Section 561 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') confers on a person aggrieved by a decision of an industrial magistrate or the Commission a right of appeal to this Court and is set out as follows:
  1. 561
    Appeal to industrial court
  1. (1)
    A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court's decision is final.
  1. [5]
    In Turay v Workers' Compensation Regulator,[2] President Davis J concluded that an appeal pursuant to s 561 of the WCR Act is not limited to errors of law or want of jurisdiction by s 557 of the Industrial Relations Act 2016 (Qld) ('IR Act').
  1. [6]
    Section 562(1) of the WCR Act provides that in deciding an appeal, the Industrial Court may confirm the decision,[3] vary the decision[4] or set aside the decision and substitute it for another decision.[5]
  1. [7]
    The Regulator submits that as the current appeal lies against the exercise of a discretion by the Commission, the principles from House v The King[6] are engaged. This requires that the relevant grounds of review must include either: establishing an error of law; the taking into account of irrelevant considerations; failure to take into account a relevant consideration; or a factual error.[7]
  1. [8]
    The grounds of appeal, as they appear in the Appellant's Application to Appeal, are as follows:
  1. (a)
    the Commissioner erred in her interpretation of costs of the appeal and costs of the hearing, when she decided whether the written closing submissions, and consideration of same, were not part of the hearing;
  1. (b)
    the Commissioner erred in her interpretation of "jurisdictional error" and so also erred in her reliance and interpretation of the case law she relied on to make her finding; and
  1. (c)
    if the Appellant is wrong on the above two appealable points, then the Appellant respectfully submits that the decision by Davis J in Workers Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) ('QNMU (No 2)'),[8] is erroneous based on the President's interpretation of "costs of the appeal" and "costs of the hearing."
  1. [9]
    Without seeking the Court's leave, the Appellant purported to amend the grounds of appeal in his written submissions, which stated, "[w]e do not press any further our Appeal point 2 which was lodged in our Application to Appeal…" and instead, sought to include the following ground of appeal:
  1. (a)
    the Commissioner gave no reasons so far as it relates to the Commission's discretion under reg 132(3) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('the Regulation') regarding uplift.[9]
  1. [10]
    The Respondent objects to the amendment and contends that the Appellant should not be permitted to amend the grounds of appeal out of time. However, the Respondent, on the basis that leave may be granted, has also provided fulsome submissions in response to the amended ground two.
  1. [11]
    Just prior to the hearing date of the appeal, the parties by consent, requested that the appeal proceed on the papers. Consequently, it can be inferred that the parties did not wish to make any further submissions that went beyond the content of their respective written submissions including with respect to the amendment to ground two sought by the Appellant.
  1. [12]
    Beyond the objection contained in the Respondent's written submissions, it does not raise any distinct matter of prejudice that would arise if leave was to be granted.
  1. [13]
    Indeed, the Regulator has provided written submissions addressing the amended appeal ground on the basis that leave may be granted and, consequently, it is difficult to conceive of any prejudice arising if leave to amend was granted.
  1. [14]
    Whilst it is noted that the Appellant has failed to comply with r 18 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules'), in the circumstances of this matter, including the provision of submissions by the Regulator addressing the amended ground, the Court will waive the Appellant's non-compliance with r 18 of the IR Rules and grant leave to amend ground two of the Application to Appeal.

The Power to Award Costs

  1. [15]
    The power to award costs for an appeal to the Commission brought pursuant to the WCR Act is found in s 558 of the WCR Act. Section 558 of the WCR Act relevantly states:
  1. 558
    Powers of appeal body
  1. (1)
    In deciding an appeal, the appeal body may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (2)
    If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. (3)
    Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.
  1. [16]
    Relevantly, reg 132 of the Regulation states:
  1. 132
    Costs—proceeding before industrial magistrate or industrial commission
  1. (1)
    A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission.
  1. (2)
    If the magistrate or commission awards costs—
  1. (a)
    costs in relation to counsel's or solicitor's fees are as under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, scale C; and
  1. (b)
    costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and
  1. (c)
    costs in relation to bailiff's fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.
  1. (3)
    The magistrate or commission may allow costs up to 1.5 times the amounts provided for under subsection (2)(a), in total or in relation to any item, if the magistrate or commission is satisfied the amounts are inadequate having regard to—
  1. (a)
    the work involved; or
  1. (b)
    the importance, difficulty or complexity of the matter to which the proceeding relates.
  1. [17]
    In QNMU (No 2), Davis J held that the power to award costs in workers' compensation matters was vested in the WCR Act and not restricted by s 545 of the IR Act.[10]

The Costs Decision

Relevant Background

  1. [18]
    Previously, the parties have been involved in two workers' compensation appeals matters in the Commission below, as well as another Industrial Court appeal regarding the substantive decision in WC/2019/64.[11]
  1. [19]
    Mr Adcock commenced employment with KJM Contractors Pty Ltd on 8 October 2008 as a casual employee and converted to full-time employment on 29 October 2013.
  1. [20]
    Mr Adcock's role was that of a cook/chef in remote camps with the arrangement that he would "Fly-In-Fly-Out" on the basis of two weeks on, two weeks off.
  1. [21]
    On 25 August 2015, whilst getting some product in the form of a box of bacon and frozen cake mix, Mr Adcock misjudged the step which led to his left foot rolling, and he fell down which caused immediate pain up his left ankle and to his back.
  1. [22]
    By a decision of the Commission on 22 September 2017, the Commission found that the Appellant had suffered "a personal injury in the form of a 'lateral ankle ligament sprain, most likely a partial tear to the calcaneal fibular ligament'" which arose out of, or in the course of, his employment with the employment being the significant contributing factor to the injury.[12]
  1. [23]
    In 2018, the Regulator varied the decision of WorkCover and determined that the Appellant did not have an entitlement to payments of weekly compensation after 26 August 2016, however, has an entitlement to payment of medical expenses and hospitalisation until 21 February 2019. The Appellant filed a further workers' compensation appeal in the Commission to review this decision made by the Regulator.[13]
  1. [24]
    On 25 June 2021, the Commission found that the Appellant's incapacity is determined to have ceased at 30 November 2017, and that his requirement for medical treatment continued until 27 February 2018.
  1. [25]
    The Regulator appealed this decision to the Industrial Court. The Court dismissed the appeal.[14]
  1. [26]
    Following the appeal decision on 24 May 2022 and correspondence from the parties, the Commission issued a Directions Order dated 30 November 2022 seeking submissions on the issue of costs in WC/2019/64 which were subsequently filed by the parties.
  1. [27]
    The Commission determined the costs decision on 15 September 2023 as follows:
  1. The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65.[15]
  1. [28]
    The Commission provided written reasons with respect to the Primary Decision.
  1. [29]
    Relevantly, a preliminary matter dealt with by the Commission was in respect to an earlier order issued in the proceedings that the Respondent pay the "costs of the appeal".
  1. [30]
    The Commission noted that such an order had historically, as a matter of general practice, been issued by members of the Commission with respect to appeals brought pursuant to the WCR Act prior to the Industrial Court's decision in QNMU (No 2).
  1. [31]
    In QNMU (No 2), Davis J considered the Commission's power to award costs in workers' compensation appeals and relevantly concluded as follows:
  1. [26]
    The power to award costs is not a common law power. It is one granted by statute. Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.
  1. [27]
    There is an additional power to award costs under s 545 of the IR Act…
  1. [28]
    However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act. In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
  1. [29]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing".[16]
  1. [32]
    The Commission properly had regard to QNMU (No 2) and several authorities considering the issuing of orders made outside the grant of a statutory power.[17]
  1. [33]
    Having had regard to the relevant authorities,[18] the Commission concluded that the original order granting "costs of the appeal" was an order made outside jurisdiction and, consequently, is not a decision at law.[19]
  1. [34]
    The Commission then proceeded to award costs to the Appellant pursuant to s 558(3) of the WCR Act, being costs of the hearing.
  1. [35]
    The Commission's reasons for allowing (and not allowing) particular items of costs appears in the reasons as follows:
  1. [37]
    Pursuant to r 132(2) of the WCR Regulation the appropriate scale for solicitor's fees is schedule 2, part 2 scale C of the UCPR and for witness' fees and expenses, pt 3 of the Uniform Civil Procedure (Fees Regulation) 2019.
  1. [38]
    The Appellant's costs outlined in correspondence to the Respondent dated 8 November 2022 is as follows:

Item

Description

Costs incl GST

A

Claim and Statement of Claim and service

$1,552.00

B

Trial preparation, up to and including settlement conference

$1,947.00

C

Balance of trial preparation, no counsel

$1,847.00

D

E

Solicitor on hearing

  1. (a)
    Appearance without counsel on hearing – first day
  1. (b)
    Appearance without counsel on hearing – second day

$1,670.00

$1,145.00

F

Written submissions (12 hours)

$3,379.20

G

Consider written submissions Respondent (2 hours)

$563.20

H

Applicants written submissions in reply (5 hours)

$1,408.00

I

Instructions –

  1. (a)
    for disclosure, preparing list of documents and making inspection and copies of documents—
  • Allowance to party requesting disclosure
  • Allowance to party making disclosure

$433.00

$796.60

Disbursements

Item

Particulars

Amount incl GST

J

Return flight to Qld for worker

$529.38

K

Accommodation for worker

$150.00

L

Return flight to Qld for solicitor

$529.38

M

Accommodation for solicitor

$150.00

N

Dr Suyapto invoice

$144.43

O

Dr Suyapto invoice

$576.95

P

Dr Suyapto invoice

$1,227.71

  1. [39]
    In circumstances where the substantive matter did not involve complex issues or work warranting uplift of costs, the Appellant is awarded solicitor's costs as follows:
  1. (a)
    Item 9 (a) Solicitor appearance at hearing without counsel (first day) – $1,255.00; and
  1. (b)
    Item 9 (b) Solicitor appearance at hearing without counsel (second day) - $865.00
  1. [40]
    The Appellant is entitled to costs for professional witness fees pursuant to s 132(2)(b) of the Regulation and s 25 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) in the amount of $95.70 for absence from their employment of a period of three hours or less.
  1. [41]
    The Appellant is entitled to costs for the professional fees for Dr Dion Suyapto's evidence at the hearing pursuant to s 27 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) in the amount of $576.95.
  1. [42]
    There is no entitlement to costs associated with items outlined at A, B, C and I, as these items are costs of the appeal rather than costs of hearing. Similarly, there is no entitlement to travel expenses associated with the Appellant's claim and the costs of Dr Suyapto's reports as these are incidental to the appeal rather than the costs of hearing.
  1. [43]
    The difficulty with the Appellant's request for costs associated with the written submissions for the substantive appeal (F, G and H in table above) is that such costs are not contemplated by sch 2 pt 2 scale C of the UCPR. Accordingly, such an order cannot be made.[20]
  1. [36]
    It is this decision that the Appellant appeals to this Court.

Statutory Construction of the Relevant Scheme 

  1. [37]
    The grounds of appeal are premised on the Appellant's contentions as to what amounts to the proper statutory construction of s 558 of the WCR Act within the context of the relevant statutory scheme. For that reason, it is convenient to consider the statutory construction of s 558 of the WCR Act together with reg 132 of the Regulation at this juncture.
  1. [38]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri,[21] as follows:
  1. 32
    The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. 33
    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. 34
    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  1. 35
    The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  1. 36
    These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  1. 37
    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
  1. …[22]
  1. [39]
    In SZTAL v Minister for Immigration and Border Protection,[23] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:
  1. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
  1. …[24]
  1. [40]
    Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
  1. [41]
    Relevantly, in this appeal a controversy has arisen with respect to the meaning of the words "costs of the hearing" as referred to in s 558 of the WCR Act.
  1. [42]
    Section 558 falls within ch 13 pt 3 div 1 entitled, "Appeal to industrial magistrate or industrial commission".
  1. [43]
    Section 558 of the WCR Act sets out the powers of an appeal body hearing an appeal commenced pursuant to ch 13 pt 3 div 1 with respect to the type of decision that may be made.
  1. [44]
    Section 558(3) of the WCR Act provides that the appeal body may award costs of the hearing "except to the extent provided under a regulation". The exception referred to in s 558(3) places a fetter on the exercise of the discretion to award costs of the hearing.
  1. [45]
    The statutory context of s 558 of the WCR Act was considered and conveniently set out in QNMU (No 2) as follows:
  1. [21]
    Section 550 prescribes a procedure for the appeal. Section 552 provides that notice must be given of the "time and place for hearing". Sections 552A and 552B provide as follows:

"552A

Conference

  1. (1)
    If the appeal is to the industrial commission, the industrial commission may, before the hearing of the matter, call a conference of the parties.
  1. (2)
    The parties must attend the conference.

552B

Legal representation at appeal or conference

  1. A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with—
  1. (a)
    the agreement of the parties; or
  1. (b)
    the appeal body's leave." (emphasis added)
  1. [22]
    It is obvious then from those sections that there is at least a possibility that the parties will be represented by lawyers, both at the conference called under s 552A, or at the "hearing of an appeal".
  1. [23]
    Section 554 concerns the exchanging of evidence before the "hearing". Section 555 provides that the "hearing" may be adjourned. Section 556 concerns "additional medical evidence". Importantly, s 556(2) provides:

"556

Additional medical evidence

  1. …
  1. (2)
    The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons." (emphasis added)
  1. [24]
    Section 558 provides as follows:

"558

Powers of appeal body

  1. (1)
    In deciding an appeal, the appeal body may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (2)
    If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. (3)
    Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." (emphasis added)
  1. [25]
    By s 558(3), what is "in the appeal body's discretion" (here the QIRC) are the "costs of the hearing". The "costs of the hearing" may be quite a different thing to the "costs of the appeal".[25]
  1. [46]
    The words "cost of the hearing" as they appear in s 558 are not defined within the WCR Act. The ordinary meaning of the word "hearing" includes, "the presentation of a matter before a tribunal".[26]
  1. [47]
    As noted above, the Court has the benefit of the consideration of s 558 of the WCR Act undertaken in QNMU (No 2).
  1. [48]
    In QNMU (No 2), Davis J considered the meaning of the terms "costs of the hearing" compared to "costs of the appeal" in the WCR Act as follows:
  1. [28]
    … In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
  1. [29]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing".
  1. [30]
    The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:
  1. "1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."
  1. [31]
    I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.
  1. [32]
    Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.[27]
  1. [49]
    Accordingly, the "costs of the hearing" cover the costs incurred in the conduct of the hearing of the appeal itself and does not cover matters preceding the hearing such as interlocutory matters. However, costs of the hearing will only be allowed to the extent provided by a regulation.
  1. [50]
    In this appeal, a tension arises in the submissions between s 558(3) of the WCR Act and reg 132(1) of the Regulation in so far as s 558(3) refers to a discretion, within the context of an appeal, for an appeal body to award "costs of the hearing" and reg 132(1) which refers to a discretion, within the context of a general provision of the Regulation, of an industrial magistrate or commissioner to award "costs of a proceeding".
  1. [51]
    As noted above, s 558(3) of the WCR Act is the statutory source for the power to award costs in relation to a workers' compensation appeal to the Commission brought pursuant to ch 13 pt 3 div 1 of the WCR Act.
  1. [52]
    Regulation 132(1) is a general provision relating to the exercise of a discretion by an industrial magistrate or industrial commissioner to award costs of a proceeding. The Appellant seeks to rely on reg 132(1) as an alternate source of power for the Commission to award costs of the appeal that go beyond the costs of the hearing.
  1. [53]
    Where there is a conflict between a general and a specific provision, the specific provision prevails (generalia specialbus non derogant).[28]
  1. [54]
    In The Ombudsman v Laughton,[29] Spigelman CJ stated the principle that the general provision is subservient to the specific as follows:
  1. The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.[30]
  1. [55]
    Section 558(3) of the WCR Act is a specific provision dealing with the award of costs with respect to an appeal decision made in accordance with s 558(1) of the WCR Act. Whilst the Regulation, including reg 132(1), falls within the same statutory scheme, it deals with an award of costs in a general sense.
  1. [56]
    It could not have been the intent of the legislature to deprive s 558(3) of its intended content and operation to provide for a discretionary power to award costs to an appeal body in a workers' compensation appeal.
  1. [57]
    To the extent to which reg 132 of the Regulation applies, it does not operate to extend the scope of s 558(3) of the WCR Act to beyond "the costs of the hearing".
  1. [58]
    The use of the words "… except to the extent provided under a regulation" in s 558(3) of the WCR Act provides that the exercise of the appeal body's discretion to award costs of the hearing is constrained by the Regulation.
  1. [59]
    Section 558(3) of the WCR Act and reg 132(2) of the Regulation operate to award a successful party in an appeal the costs of the hearing with the allowable costs being those set out in reg 132(2), including costs in relation to counsel's or solicitor's fees. Regulation 132(3) also provides for the potential uplift of 1.5 times on those costs. For completeness, reg 133 also applies to the payment of an additional amount for costs of a medical practitioner or a witness who gives evidence of a professional nature as set out in reg 133(3).
  1. Ground One – Error in Law
  1. [60]
    Ground one contends that the Commissioner erred in her interpretation of "costs of the appeal" and "costs of the hearing", when she decided that the written closing submissions, and consideration of same, were not part of the hearing.
  1. [61]
    In his written submissions, the Appellant submits that "the Commissioner wrongly asserts that costs of closing written submissions are not contemplated by Schedule 2, Part 2, Scale C" of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR').
  1. [62]
    The Appellant concedes that the scale provided for in the UCPR sch 2 pt 2 Scale C ('Scale C'), does not specifically refer to closing written submissions, however, he submits that it is "abundantly clear that closing submissions form part of the hearing proper".
  1. [63]
    The Appellant argues that the hearing cannot be decided until the parties are given the opportunity to make final submissions in their case.
  1. [64]
    The Appellant asserts that Item F and/or G of Scale C of the UCPR should not be taken "literally".
  1. [65]
    The Appellant submits that the scale should be read with the context and purpose of the section having regard to the statute as a whole. He submits that "it cannot be conceivable that by omission of the word 'Trial' in Part G, the intention was to exclude subsequent trial days, after the first day, yet provide costs for hearings".
  1. [66]
    The Appellant further submits that r 681 of the UCPR sets out:
  1. 681
    General rule about costs
  1. (1)
    Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
  1. (2)
    Subrule (1) applies unless these rules provide otherwise.
  1. [67]
    The Appellant submits that the UCPR does not provide otherwise.
  1. [68]
    The Appellant argues that it would not be the intention of Parliament to create a narrower or literal interpretation of the subordinate legislation.
  1. [69]
    The Appellant seeks to rely on s 15AA of the Acts Interpretation Act 1901 (Cth) as providing clarity around "how" interpretation of statute occurs.
  1. [70]
    The Appellant submits:
  1. In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.[31]
  1. [71]
    The Appellant argues that in Anderson v Pickers Auctions Pty Ltd ('Anderson'),[32] the Queensland Court of Appeal considered r 137 of the UCPR and determined that it "should not be construed as constituting an exhaustive list of recoverable outlays".[33]
  1. [72]
    The Appellant argues that Anderson is authority for the allowance of costs not expressly stated in subordinate legislation.

Consideration

  1. [73]
    Regulation 132(2)(a) of the Regulation is relevant to ground one of the appeal. It provides that if the Commission awards costs then costs in relation to counsel's or solicitor's fees are under Scale C.
  1. [74]
    Scale C relevantly provides:
  1. Part 2 Costs (up to $50,000)

C

$5,001 to $20,000

$

  1. 1
    Instructions to sue—claim and statement of claim and service

1,289.00

  1. 2
    Instructions to defend—notice of intention to defend and defence and filing

1,289.00

  1. 3
    Appearance in court in undefended proceedings (or in defended proceedings in which a claim or defence is not proceeded with—additional to costs for instructions to sue but including costs under item 4) to obtain judgment

291.15

  1. 4
    Obtaining judgment by default

291.15

  1. 5
    Preparing for trial, up to and including settlement conference—
  1. (a)
    including brief for counsel to appear at conference
  1. (b)
    if no counsel appears at conference

1,895.00

1,729.00

  1. 6
    Balance of preparing for trial—
  1. (a)
    including trial brief if counsel engaged
  1. (b)
    if no counsel at trial

2,013.00

1,518.00

  1. 7
    Preparing for trial, if no settlement conference—
  1. (a)
    including trial brief if counsel engaged
  1. (b)
    if no counsel at trial

3,791.00

3,129.00

  1. 8
    Counsel's fees—
  1. (a)
    to settle claim and statement of claim, counterclaim, notice of intention to defend or notice of appeal
  1. (b)
    to settle special affidavit, reply or particulars that the magistrate, registrar or costs assessor is satisfied are reasonably necessary or proper
  1. (c)
    to settle interrogatories or answers to interrogatories that the magistrate, registrar or costs assessor is satisfied are reasonably necessary or proper
  1. (d)
    on conference, inspection of works or other site inspection, or a similar attendance that the magistrate, registrar or costs assessor is satisfied is reasonably necessary or proper—each hour
  1. (e)
    to advise on evidence or for any other opinion
  1. (f)
    on trial or hearing (other than an application in a proceeding)—first day
  1. (g)
    on each subsequent day of hearing (if the matter occupies 2 or more hours of the day and the appearance is certified for by the court)
  1. (h)
    on each subsequent day of hearing not included in paragraph (g)
  1. (i)
    if a proceeding is heard outside the town where counsel ordinarily practises, a further fee by way of out-of-chambers fee (not less than $60.00 a day) may be allowed for each day it is not reasonably practicable for counsel to be in attendance at chambers for a total of at least 1 hour, between 8.30a.m. and 5.30p.m.
  1. (j)
    on an application in a proceeding
  1. (k)
    to hear deferred judgment

278.75

179.75

272.55

278.75

291.15

1,770.00

1,182.00

582.20

284.95

148.60

  1. 9
    Solicitor on hearing—
  1. (a)
    appearance without counsel on hearing—first day
  1. (b)
    appearance without counsel on second and each subsequent day of hearing (if the matter occupies 2 or more hours of the day and the appearance is certified for by the court)
  1. (c)
    attendance of clerk with solicitor acting as advocate—each day

1,438.00

991.00

322.05

  1. Costs under paragraph (c) are not allowed if the court certifies the attendance of the clerk was not reasonably required.
  1. 10
    On hearing with counsel—
  1. (a)
    attendance of solicitor with counsel (if the attendance is certified for by the court)—each day
  1. (b)
    attendance of clerk with counsel—each day

712.40

322.05

  1. Costs under paragraph (b) are not allowed if the court certifies the attendance of the clerk was not reasonably required.
  1. 11
    On hearing with counsel—
  1. (a)
    counsel's fees (if no fee is payable under item 8(f))
  1. (b)
    solicitor for appearance without counsel

545.00

495.50

  1. 12
    Application to the court (other than an application for an adjournment

576.05

  1. 13
    Instructions—
  1. (a)
    for disclosure, preparing list of documents and making inspection and copies of documents—
  1. (i)
    allowance to party requesting disclosure
  1. (ii)
    allowance to party making disclosure
  1. (b)
    for interrogatories and answers to interrogatories (including preparation, filing and perusing)—
  1. (i)
    allowance to party delivering interrogatories
  1. (ii)
    allowance to party answering interrogatories

384.15693.85

499.40

460.80

  1. 14
    Enforcement hearing—
  1. (a)
    counsel's fees
  1. (b)
    if no counsel engaged

755.80

668.95

  1. 15
    Enforcement warrant—
  1. (a)
    costs of preparing warrant and attending issuing and for return—to be marked on warrant (exclusive of court or other fees)
  1. (b)
    costs of registration of warrant against land

291.15

291.15

  1. 16
    Warrant (other than enforcement warrant)—costs of preparing warrant and attending issuing and for return

291.15

  1. [75]
    After having had regard to Scale C, the Commissioner concluded at paragraph 43 of the Primary Decision as follows:
  1. The difficulty with the Appellant's request for costs associated with the written submissions for the substantive appeal (F, G and H in table above) is that such costs are not contemplated by sch 2 pt 2 scale C of the UCPR. Accordingly, such an order cannot be made.
  1. [76]
    In forming this decision, the Commissioner had regard to the items listed in Scale C and concluded that Scale C did not allow a claim in relation to written submissions.
  1. [77]
    The Appellant's criticism of that conclusion is premised on the argument that the written submissions formed part of the hearing and, indeed, the hearing had not concluded until the submissions were filed. That in and of itself is not a particularly controversial submission. The difficulty, however, in the Appellant's argument arises because the award of costs of the hearing is not unfettered.
  1. [78]
    Relevantly, s 558(3) of the WCR Act provides that the award of costs of the hearing will be allowed to the extent provided under a regulation. As noted above, reg 132(2)(a) limits the recovery of counsel's and solicitor's fees to those fees prescribed pursuant to Scale C. Scale C does not allow for costs for the preparation, delivery, or filing of written submissions.
  1. [79]
    Subsequently, there is no error in the approach adopted by the Commissioner or in her conclusion that costs for written submissions are not contemplated by Scale C.
  1. [80]
    The Appellant's reference to r 681 of the UCPR is misplaced and does not assist in this appeal. Relevantly, the UCPR has no application to ch 13 pt 3 div 1 of the WCR Act, except for the limited purpose provided for in s 553 of the WCR Act.[34] It is unnecessary to set out in detail the exception provided in s 553 other than to note that it is not relevant to the issues in this appeal.
  1. [81]
    Similarly, the Appellant's reliance on Anderson to argue that the decision is authority for allowing costs not expressly stated in the Regulation is not relevant to these proceedings and, further, mischaracterises the affect of the decision in Anderson.
  1. [82]
    Anderson, unlike this appeal, involved an appeal of costs arising from a common law proceeding.
  1. [83]
    In Anderson, the Court of Appeal identified that the issue was whether, as a matter of statutory construction, pt 8 div 2 of the Regulation, excludes counsel's fees as a recoverable outlay.[35] It further identified that more particularly, does reg 137, which falls within pt 8 div 2, provide for an exhaustive list of outlays that may be recovered by a claimant on an assessment of costs for a claim for damages for personal injury arising from a work-related injury.
  1. [84]
    The Court of Appeal relevantly concluded as follows:
  1. As Pt 8, Div 2 of the Regulation deals specifically with the issue of costs, the change in the usage of the terms from "legal professional costs" in regs 135 and 136 to "legal costs" in reg 137, indicates that the change in language was intentional. This is consistent with the rule that where a legislature could have used the same term but chose to use a different term, the intention was to change the meaning. If the term "legal costs" in reg 137 is given the same meaning as that in s 290A of the Act, it would encompass outlays and disbursements under the UCPR which are not specified as outlays in reg 137. If the term is interpreted in this way, it supports a construction of reg 137 that it is concerned with specific outlays referrable to the nature of the proceedings under the Act which are allowable upon an assessment of costs. Such an interpretation does not require reg 137 to be construed as constituting an exhaustive list of recoverable outlays so as to prohibit outlays that would ordinarily be recoverable under Part 17A of the UCPR.[36]
  1. [85]
    Anderson cannot be relied on, as the Appellant contends, as going "one step further for allowing costs not expressly stated in subordinate legislation". Anderson clearly involves the statutory construction of different terms and provisions, namely the construction of the term "legal costs" in reg 137 of the Regulation.
  1. [86]
    The Appellant's submission with respect to the application of Anderson is rejected on the basis that the decision in Anderson is not authority for the "principle" contended for by the Appellant and further the determination of the relevant issues in Anderson are not relevant to this appeal.
  1. [87]
    Ground one of the appeal is dismissed

Ground Two – Inadequate Reasons

  1. [88]
    The Appellant contends that the Commission erred in law by providing "no reasons … so far as it relates to the Commission's discretion under r 132(3) regarding uplift."
  1. [89]
    The Appellant argues that the Commission below failed to give adequate reasons regarding the Commission's decision not to award up to 1.5 times of the costs due to the work involved or the importance, difficulty or complexity of the matter to which the proceeding relates.[37]
  1. [90]
    The Appellant refers to paragraph 39 of the Primary Decision which states:
  1. In circumstances where the substantive matter did not involve complex issues or work warranting uplift of costs, the Appellant is awarded solicitor's costs as follows:
  1. (a)
    Item 9 (a) Solicitor appearance at hearing without counsel (first day) – $1,255.00; and
  1. (b)
    Item 9 (b) Solicitor appearance at hearing without counsel (second day) – $865.00[38]
  1. [91]
    The Appellant submits that whilst he had filed submissions pointing towards the complexity of the matter in the proceedings below and other matters to uplift the costs, "the Commissioner failed to make any findings on either of these points other than to say at paragraph 39 of the directions [sic] that the substantive matter did not involve complex issues."[39]

Consideration

  1. [92]
    In Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services),[40] Martin J referred to relevant principles to be applied by courts and quasi-judicial tribunals in ensuring adequate reasons for decisions are provided. These principles include the following: 
  1. [15]
    I have, in other decisions, set out the principles relating to the requirement for reasons to be given which are adequate in the circumstances. Decisions of tribunals do not attract the same degree of scrutiny as those of the ordinary civil courts. But the general principles still apply even though they may not be enforced with the same degree of rigour. I will repeat some of them which are particularly relevant in this case:
  1. (a)
    the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision,
  1. (b)
    one reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal,
  1. (c)
    a tribunal member will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties – this applies both to evidence and to argument,
  1. (d)
    where a party relies on relevant and cogent evidence which is rejected by the tribunal, then the tribunal should provide a reasoned explanation for the rejection of that evidence, and
  1. (e)
    where parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for the preference of the tribunal of one set of evidence to the other.
  1. [15]
    Of particular relevance to this case is the observation by Nettle J in DL v R where he said:
  1. " … in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law."[41]
  1. [93]
    In DL v The Queen,[42] the High Court relevantly observed:
  1. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
  1. "Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."[43]
  1. [94]
    In the Commission below, the Appellant argued that an uplift be applied to the costs awarded pursuant to reg 132(3) of the Regulation.
  1. [95]
    The Commission had regard to and summarised the Appellant's submissions as follows:
  1. [23]
    … In support, the Appellant submits that:
  1. (a)
    there were legal issues that was considered relating to a capacity to sell labour in the open labour market and references were made to High Court authorities where the High Court commented on a similar complexity;
  1. (b)
    the date regarding when the Appellant's incapacity ceased was not simple and required multiple expert medical doctors to comment on that issue;
  1. (c)
    the facts were complex and required a thorough examination of the Appellant, and the pre-injury employer;
  1. (d)
    a further degree of complexity arose with the tendering of evidence, with the industrial issues that pre-dated the workers' compensation claim; and
  1. (e)
    there were issues relating to mitigation which needed to encapsulate the multiple erroneous decisions made by the compensating authority throughout the Appellant's claim, which commenced in 2015.[44]
  1. [96]
    At paragraph 39 of the Primary Decision the Commission concluded that:
  1. In circumstances where the substantive matter did not involve complex issues or work warranting uplift of costs, the Appellant is awarded solicitor's costs as follows:
  1. (a)
    Item 9 (a) Solicitor appearance at hearing without counsel (first day) – $1,255.00; and
  1. (b)
    Item 9 (b) Solicitor appearance at hearing without counsel (second day) – $865.00
  1. [97]
    Whilst it is accepted that the obligation to give adequate reasons does not require the reasons to be necessarily lengthy or elaborate, they should disclose and articulate the essential ground or grounds upon which the decision rests.[45]
  1. [98]
    The Commission clearly had regard to the Appellant's argument. Further, the Commission's reasons state that the grounds for the refusal to grant an uplift is that the matter did not involve complex issues or additional work. In referring to these matters, the Commission relevantly had regard to the matters required to be considered for an uplift to apply pursuant to reg 132(2)(a) and (b). However, the basis for that conclusion is not apparent, particularly with respect to why, in forming that conclusion, the submissions made by the Appellant were rejected. Accordingly, the ground or grounds upon which the decision rests are not apparent from the reasons.
  1. [99]
    The Appellant has established an error of law with respect to the adequacy of the reasons. Accordingly, the Court will consider the exercise of the discretion to allow costs for an uplift pursuant to reg 132(3) of the Regulation afresh.
  1. [100]
    For the discretion referred to in reg 132(3) of the Regulation to be enlivened, it must be established that the amounts provided for under reg 132(2)(a) are inadequate having regard to:
  1. (a)
    the work involved; or
  1. (b)
    the importance, difficulty or complexity of the matter to which the proceedings relate.
  1. [101]
    This may require consideration of the work that was required to be undertaken with respect to the appeal or the assessment of the importance, difficulty or complexity of the matter to which the proceedings relate and then a determination as to whether the costs provided in Scale C were adequate having regard to those matters.
  1. [102]
    The matters the Appellant relied on below were referred to by the Appellant before this Court who contended that the uplift should apply as the matters he referred to established that the matter was complex and for "other reasons existing to uplift costs".[46] It is not directly apparent what "other reasons" the Appellant is referring to and whether they are matters that fall within the contemplation of reg 132(3)(a) and (b).
  1. [103]
    On appeal, the Appellant argued that the following maters were relevant:
  1. (a)
    there were legal issues relating to a capacity to sell labour in the open market which had to be considered in reference to High Court authorities where the High Court commented on a similar complexity;
  1. (b)
    the dates where the incapacity stopped were not simple and required multiple expert medical doctors to comment on that issue;
  1. (c)
    the facts were complex and required a thorough examination of the worker and the pre-injury employer was even called;
  1. (d)
    a further degree of complexity arose with the tendering of evidence and with the industrial issues that predated the workers compensation claim; and
  1. (e)
    there were issues relating to mitigation which need to encapsulate the multiple erroneous decisions by the compensating authorities throughout the workers claim.[47]
  1. [104]
    An analysis of the Primary Decision does not reflect that the proceedings had the level of complexity suggested by the Appellant. Indeed, several of the matters the Appellant relies on were not considered in detail by the Commissioner. It can be inferred from the absence of any detailed consideration of these issues that they did not add to the complexity of the matter in the proceedings.
  1. [105]
    The appeal was with respect to a decision terminating the Appellant's entitlement to compensation pursuant to ss 144A and 144B of the WCR Act.
  1. [106]
    Section 144A of the WCR Act prescribes when weekly payments stop. Section 144B of the WCR Act prescribes when payment of medical treatment, hospitalisation and expenses stop.
  1. [107]
    The Commission identified the issues requiring determination on the appeal were as follows:
  1. (a)
    whether the Appellant had an incapacity for work after 26 August 2016 arising from the effects of the injury to his left ankle sustained at work on 25 August 2015; and
  1. (b)
    whether the Appellant had an entitlement for medical treatment after 21 February 2018.[48]
  1. [108]
    The hearing of the appeal took place over the course of two days. The Commission heard the evidence of two lay witnesses, with one being the Appellant. The Appellant and the Regulator both called two medical expert witnesses each.
  1. [109]
    The evidence of the two lay witnesses was summarised by the Commissioner in 12 paragraphs. It is not apparent from the summary of the evidence that there was any great contest between the evidence given or any significant and complex factual disputes that needed to be resolved.
  1. [110]
    As is not unusual in appeals of this nature, a degree of consideration was had to the medical evidence before the Commissioner. There was some conflicting medical evidence in relation to the date on which the Appellant's incapacity stopped. This required the Commissioner to consider the evidence that was before her and to make an assessment as to the best evidence available to establish the date on which the incapacity stopped. The reasons for that decision do not identify anything about the assessment that made the matter a complex matter.
  1. [111]
    The other matters raised by the Appellant in his submissions before this Court were simply not matters that called for any significant consideration by the Commissioner in the decision. Consequently, they cannot be found to have added to the complexity of the matter.
  1. [112]
    Finally, the fact that written submissions were filed is not, without further relevant information, a matter which would support a conclusion that the matter was complex.
  1. [113]
    For these reasons, I do not consider that the discretion under reg 132(3) of the Regulation has been enlivened. The Commissioner's findings that an uplift was not warranted is confirmed.
  1. Ground Three
  1. [114]
    The Appellant relies on ground three as an alternate ground of appeal to ground one and ground two. Ground three of the appeal is that the decision of Davis J in QNMU (No 2) is erroneous based on the President's interpretation of "costs of the appeal" and "costs of the hearing".
  1. [115]
    The Appellant submits that the decision in QNMU (No 2) was wrongly decided in reliance on several grounds.
  1. [116]
    Firstly, the Appellant contends that s 558(3) of the WCR Act does not refer to costs unrelated to the hearing.
  1. [117]
    The Appellant submits that there are powers in addition to the powers set out in s 558 of the WCR Act, for instance, powers relating to the issuing of interlocutory orders, discovery, case management and submissions.
  1. [118]
    The Appellant submits that s 558 of the WCR Act "cannot be read in isolation of the Act as a whole".
  1. [119]
    In this respect, the Appellant submits the WCR Act "talks generally about proceedings when discussing the issue of costs".
  1. [120]
    The Appellant appears to rely on a provision of the UCPR (r 681) to argue that r 681 applies to costs of the proceeding which would include the costs of this appeal.
  1. [121]
    The Appellant further contends that the intention of Parliament was to incorporate all of Scale C otherwise it would have been expressly stated.
  1. [122]
    The Appellant contends that s 558(3) of the WCR Act should be interpreted so that the costs of the hearing is in the appeal body's discretion or "in other words they can increase (in accordance with s 132 of the Regs [sic]) or decrease, as they wish, the costs in the schedule relating to the Hearing."[49]
  1. [123]
    The Appellant concludes that "it does not then mean that costs for the remainder of the Appeal are not paid."[50]
  1. [124]
    Secondly, the Appellant contends that in interpreting s 558(3) of the WCR Act requires consideration of "context and purpose include consideration of legislative history and extrinsic material, as well as the 'mischief' the legislation was intended to remedy."[51]
  1. [125]
    The Appellant refers to s 6.7(3) of the Workers' Compensation Act 1990 (Qld).[52] This provision provides:
  1. Subject to the Regulation, costs of the appeal are in the discretion of the Industrial Court.
  1. [126]
    The Appellant also seeks to rely on the further enactments in 1996 and 2003 that he contends support his position.
  1. Consideration
  1. [127]
    Several of the matters raised by the Appellant with respect to ground three, including the Appellant's misplaced reliance on the UCPR, including r 681, have previously been dealt with in these reasons when considering ground one and two.
  1. [128]
    It is accepted that this Court does have the ability to reconsider its decisions particularly where to not do so would be to perpetuate an error.[53]
  1. [129]
    However, the Appellant has not established a sound basis upon which the Court considers it appropriate to reconsider the decision in QNMU (No 2).
  1. [130]
    At the outset of these reasons, an analysis of the relevant statutory scheme was undertaken. This included considering the proper construction to be attributed to s 558(3) of the WCR Act and to reg 132 of the Regulation.
  1. [131]
    The statutory construction given to s 558(3) of the WCR Act in these reasons accords with, and in part applies, the reasoning of Davis J in QNMU (No 2).
  1. [132]
    Consequently, it follows that the construction of s 558(3) of the WCR Act including with respect to what amounts to "costs of the hearing" in QNMU (No 2) was not erroneous.
  1. [133]
    Ground three of the appeal is dismissed.
  1. Conclusion
  1. [134]
    For the reasons I have given, grounds one and three of the appeal are dismissed. Ground two of the appeal establishes an error of law which required the Court to reconsider the exercise of the Commission's discretion to award an uplift pursuant to reg 132(3) of the Regulation afresh. For the reasons referred to herein, and consistent with the Commissioner's decision below, no uplift pursuant to reg 132(3) is warranted.
  1. Order
  1. [135]
    Accordingly, the Court makes the following order:
  1. 1.
    Pursuant to s 562(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Queensland Industrial Relations Commission delivered on 15 September 2023 in Matter Number WC/2019/64 is confirmed.

Footnotes

[1]Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266 ('Primary Decision').

[2][2023] ICQ 13.

[3]Workers' Compensation and Rehabilitation Act 2003 (Qld) s 562(1)(a) ('WCR Act').

[4]Ibid s 562(1)(b).

[5]Ibid s 562(1)(c).

[6](1936) 55 CLR 499, 504-6.

[7]Ibid 505.

[8][2021] ICQ 13 ('QNMU (No 2)').

[9]Malcolm Adcock, 'Appellant's written submissions', Submission in Adcock v Workers' Compensation Regulator, C/2023/38, 21 November 2023, 3 ('Appellant's written submissions filed 21 November 2023').

[10]QNMU (No 2) (n 8) [28].

[11]Workers' Compensation Regulator v Adcock [2022] ICQ 16 ('Workers' Compensation Regulator v Adcock').

[12]Adcock v Workers' Compensation Regulator [2017] QIRC 86, [52].

[13]Adcock v Workers' Compensation Regulator [2021] QIRC 227, [7].

[14]Workers' Compensation Regulator v Adcock (n 11).

[15]Primary Decision (n 1) [44].

[16]QNMU (No 2) (n 8) [26]-[29] (citations omitted).

[17]See Primary Decision (n 1) [31]-[34].

[18]Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 68; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Jadwan Pty Ltd v Department of Health & Aged Care (2003) 145 FCR 1; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2015] 1 Qd R 228.

[19]Primary Decision (n 1) [35].

[20]Primary Decision (n 1) [37]-[43] (emphasis in original) (citations omitted).

[21](2019) 269 CLR 507 ('R v A2').

[22]R v A2 (n 21) [32]-[37] (citations omitted).

[23](2017) 262 CLR 362 ('SZTAL v Minister for Immigration and Border Protection').

[24]SZTAL v Minister for Immigration and Border Protection (n 23) [14] (Kiefel CJ, Nettle and Gordan JJ).

[25]QNMU (No 2) (n 8) [21]-[25] (emphasis in original).

[26]Macquarie Dictionary (online at 3 July 2025) 'hearing' (def 4).

[27]QNMU (No 2) (n 8) [28]-[32] (citations omitted).

[28]Smith v The Queen (1994) 181 CLR 338, [348] (Mason CJ, Dawson, Gaudron and McHugh JJ).

[29](2005) 64 NSWLR 114.

[30]Ibid [19].

[31]Appellant's written submissions filed 21 November 2023 (n 9) 2.

[32](2023) 17 QR 134 ('Anderson').

[33]Ibid [32].

[34]WCR Act (n 3) s 553.

[35]Anderson (n 32) [2].

[36]Anderson (n 32) [36] (Flannagan JA).

[37]Workers' Compensation and Rehabilitation Regulation 2014 (Qld) reg 132(3)(a)-(b).

[38]Primary Decision (n 1) [39]. 

[39]Appellant's written submissions filed 21 November 2024 (n 9) 4.

[40][2019] ICQ 23 ('Ball v QCS).

[41]Ball v QCS (n 40) [15]-[16].

[42](2018) 266 CLR 1.

[43]Ibid [33].

[44]Primary Decision (n 1) [23].

[45]Martin v Rowling & Anor [2005] QCA 128. 

[46]Appellant's written submissions filed 21 November 2023 (n 9) 3.

[47]Ibid 4.

[48]Adcock v Workers’ Compensation Regulator [2021] QIRC 227, [9].

[49]Appellant's written submissions filed 21 November 2023 (n 9) 7.

[50]Ibid 8.

[51]Ibid.

[52]Repealed by WorkCover Queensland Act 1996 (Qld).

[53]Simon Blackwood (Workers' Compensation Regulator) v Pearce [2015] ICQ 12, [21]-[31].

Close

Editorial Notes

  • Published Case Name:

    Adcock v Workers' Compensation Regulator

  • Shortened Case Name:

    Adcock v Workers' Compensation Regulator

  • MNC:

    [2025] ICQ 14

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    04 Aug 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adcock v Workers' Compensation Regulator [2017] QIRC 86
2 citations
Jump To
Cite 1 - [2017] QIRC 86
Cite 2 - [2017] QIRC 86
Adcock v Workers' Compensation Regulator [2021] QIRC 227
3 citations
Jump To
Cite 1 - [2021] QIRC 227
Cite 2 - [2021] QIRC 227
Cite 3 - [2021] QIRC 227
Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266
2 citations
Jump To
Cite 1 - [2023] QIRC 266
Cite 2 - [2023] QIRC 266
Anderson v Pickles Auctions Pty Ltd(2023) 17 QR 134; [2023] QCA 205
2 citations
Jump To
Cite 1 - (2023) 17 QR 134
Cite 2 - (2023) 17 QR 134
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23
2 citations
Jump To
Cite 1 - [2019] ICQ 23
Cite 2 - [2019] ICQ 23
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2015] 1 Qd R 228; [2013] QCA 394
1 citation
Jump To
Cite 1 - [2015] 1 Qd R 228
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
1 citation
Jump To
Cite 1 - (2018) 264 CLR 123
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1
1 citation
Jump To
Cite 1 - (2003) 145 FCR 1
Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 68
1 citation
Jump To
Cite 1 - [2020] QIRC 68
Martin v Rowling [2005] QCA 128
2 citations
Jump To
Cite 1 - [2005] QCA 128
Cite 2 - [2005] QCA 128
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
1 citation
Jump To
Cite 1 - (2002) 209 CLR 597
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
1 citation
Jump To
Cite 1 - (2003) 211 CLR 476
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Smith v The Queen (1994) 181 CLR 338
2 citations
Jump To
Cite 1 - (1994) 181 CLR 338
Cite 2 - (1994) 181 CLR 338
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
The Ombudsman v Laughton (2005) 64 NSWLR 114
2 citations
Jump To
Cite 1 - (2005) 64 NSWLR 114
Cite 2 - (2005) 64 NSWLR 114
Turay v Workers' Compensation Regulator [2023] ICQ 13
2 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13
Workers' Compensation Regulator v Adcock [2022] ICQ 16
2 citations
Jump To
Cite 1 - [2022] ICQ 16
Cite 2 - [2022] ICQ 16
Workers' Compensation Regulator v Pearce [2015] ICQ 12
2 citations
Jump To
Cite 1 - [2015] ICQ 12
Cite 2 - [2015] ICQ 12
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
2 citations
Jump To
Cite 1 - [2021] ICQ 13
Cite 2 - [2021] ICQ 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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