WorkCover Queensland v Yang [No 2]
[2023] QCA 38
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- Notable Unreported Decision
- Appeal Determined (QCA)
- WorkCover Queensland v Yang [No 2][2023] QCA 38
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WorkCover Queensland v Yang [No 2][2023] QCA 38
WorkCover Queensland v Yang [No 2][2023] QCA 38
SUPREME COURT OF QUEENSLAND
CITATION: | WorkCover Queensland v Yang [No 2] [2023] QCA 38 |
PARTIES: | WORKCOVER QUEENSLAND ABN 40 577 162 756 (appellant) v CHANG MO YANG (respondent) |
FILE NO/S: | Appeal No 13747 of 2021 SC No 7710 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Orders |
ORIGINATING COURT: | Supreme Court at Brisbane – [2021] QSC 274 (Applegarth J) |
DELIVERED ON: | 14 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | McMurdo JA and Crow J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – COSTS – POWER OF COURT – INDEMNITY COSTS – where the appeal was unsuccessful and the appellant ordered to pay the respondent’s costs on a standard basis – where the order did not provide a basis for the assessment of costs – where the appellant relied on s 168 of the Workers Compensation and Rehabilitation Act 2003 (Qld) to overturn a decision to accept compensation by an external regulator – where there was no authority providing the proper interpretation of s 168 – whether s 168 provided WorkCover with retrospective power to overturn a decision made on external review – whether the appellant should pay the respondent’s costs on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 702(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 168 AAI Limited v Caffrey [2020] QCA 116, cited Hall v WorkCover Queensland [2014] QCA 202, cited Suncorp Metway Insurance Ltd v Brown [2005] 1 Qd R 204; [2004] QCA 325, cited WorkCover Queensland v Yang [2022] QCA 196, related |
COUNSEL: | S A McLeod KC, with M A Eade, for the appellant M Grant-Taylor KC, with P M Nolan, for the respondent |
SOLICITORS: | Hall & Wilcox for the appellant Littles Lawyers for the respondent |
- [1]McMURDO JA: Like Crow J, I have concluded that the respondent should have its costs assessed on the indemnity basis. The determination of the issue in this appeal resolved a question of construction for all subsequent cases of this kind and the case therefore served a public interest beyond the interests of the parties. The respondent, as an evidently impecunious litigant, should not be out of pocket for his costs of the appeal.
- [2]The order for costs made on 11 October 2022 should be varied to provide that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.
- [3]CROW J: The appellant was unsuccessful in its appeal against the respondent. On 11 October 2022 orders were made that the appeal was dismissed and the appellant was ordered to pay the respondent’s costs of the appeal[1]. As the order did not provide a basis for the assessment of costs, the costs were to be assessed on the standard basis[2].
- [4]Prior to the Court of Appeal hearing on 9 May 2022, the respondent filed written submissions seeking an order for indemnity costs contending, in summary, that the appeal involved a test case on a point of law under a statutory scheme, such that the appellant’s interests in the appeal went beyond the respondent’s interest.
- [5]At the conclusion of the hearing on 9 May 2022, the appellant handed up written submissions opposing any order of indemnity costs. The reasons published by the court did not address the dispute as to costs. The costs submissions were overlooked when the court reasons were published. These addendum reasons remedy that oversight.
- [6]The principles by which the application was to be decided have been set out by this court in AAI Limited v Caffrey [2020] QCA 116. There are similarities to Caffrey’s case; that is, the respondent is an impecunious litigant such that he will be “out of pocket” on the difference between indemnity and standard costs, and that amount will necessarily fall to be deducted from the statutory compensation to which he is entitled.
- [7]In Caffrey, the unsuccessful appellant did not make any submissions opposing the making of an order for indemnity costs. In the present appeal, the unsuccessful appellant does oppose an order for indemnity costs. The unsuccessful appellant argues that the appeal involved an ordinary question of statutory construction and not a “novel and policy-laden question”[3] nor a “scheme sensitive issue”[4].
- [8]In the appeal, the appellant unsuccessfully submitted it was entitled to rely on s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) to internally review and overturn a decision to accept compensation by an external regulator. Senior counsel for both the appellant and the respondent were unable to point to any authority upon the proper interpretation of s 168 of the WCRA. The issue was a policy-laden question, that is, whether the prima facie broad power of review contained in s 168 could be interpreted to circumvent a detailed internal and external review process. In short, the issue was whether s 168 provided WorkCover with retrospective power[5] to overturn a decision made on external review.
- [9]It is difficult to envisage why the issue ought not to be characterised as “novel”, as it had not been considered before, or “policy-laden” or “scheme-sensitive”, as acceptance of the appellant’s argument would have confirmed that WorkCover had a broad retrospective power to extinguish a workers existing entitlement under the WCRA. The respondent had received a favourable external review accepting that his injury was work related. The appellant could not challenge that decision as it did not have a statutory right to appeal to the Industrial Commission. The appellant then received a medical opinion (that the respondent’s injury was not work-related) and purported to extinguish the respondent’s entitlement to worker benefits. The primary judge and this Court, by majority, held that such a course of action is not open. The WCRA is complex and deals with matters of importance to all Queensland workers and employers. In my view, therefore, it is proper to characterise the appeal as an appeal involving issues of the type and of similar importance to that of AAI v Caffrey, Hall v WorkCover, and Suncorp-Metway Insurance v Brown. In those circumstances, it is appropriate that the order made by the court on 11 October 2022 be redacted in respect of costs and the order that ought to be made is that the appellant pay the respondent’s costs of the appeal on an indemnity basis.
Footnotes
[1]WorkCover Queensland v Yang [2022] QCA 196.
[2]Uniform Civil Procedure Rules 1999 (Qld) r 702(1).
[3]AAI Limited v Caffrey [2020] QCA 116.
[4]Hall v WorkCover Queensland [2014] QCA 202 at 6; Suncorp-Metway Insurance Ltd v Brown [2005] 1 Qd R 204 at [19].
[5]WorkCover Queensland v Yang at [40] per Morrison JA.