Pope v Workers' Compensation Regulator
[2016] QIRC 105
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- Unreported Judgment
- Pope v Workers' Compensation Regulator[2016] QIRC 105
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Pope v Workers' Compensation Regulator[2016] QIRC 105
Pope v Workers' Compensation Regulator[2016] QIRC 105
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pope v Workers' Compensation Regulator [2016] QIRC 105 |
PARTIES: | Pope, Peter Mark (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2015/171 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 12 October 2016 |
HEARING DATE: | 30 September 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Neate |
ORDER: | The Workers' Compensation Regulator is to pay the costs of Mr Pope of and incidental to the appeal in WC/2015/171 in the sum of $5,341.55. |
CATCHWORDS: | COSTS - WORKERS' COMPENSATION APPEALS - two appeals by same appellant heard together - first appeal settled during the hearing and consent orders made - appeal allowed in the second appeal - Workers' Compensation Regulator ordered to pay the Appellant's costs of and incidental to the second appeal - amount payable to be calculated in accordance with relevant statutory scale of costs - costs not agreed between the parties - dispute over whether some items in statutory scale of costs are payable - whether counsel and solicitor entitled to more than scale amounts for one fee for Day 1 of hearing when both appeals were being heard - scope of Commission's discretionary power to award costs - factors guiding exercise of discretionary power |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Workers' Compensation and Rehabilitation Regulation 2014 Uniform Civil Procedure Rules 1999 Schedule 3 Bechara v Legal Services Commissioner [2010] NSWCA 369 Blackwood v Egan [2014] ICQ 020 Latoudis v Casey (1990) 170 CLR 534 Meade v Queensland Ambulance Service [1996] QSC 62 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Hore; Ex parte Brisbane City Council [1969] Qd R 75 Wilson v Lambkin & Ors (No 2) [2010] QDC 302 |
APPEARANCES: | H. Dignan of Turner Freeman Lawyers, for the Appellant D. Callaghan of Counsel, for the Respondent |
Decision
- [1]This is an application by Peter Mark Pope for costs in relation to one of two appeals by him to the Queensland Industrial Relations Commission ("the Commission") against two decisions of the Workers' Compensation Regulator ("the Regulator"). The Commission as presently constituted heard the appeals on 24 and 25 August 2015.
Background
- [2]The first appeal (WC/2015/170) was against a decision by the Regulator dated 12 May 2015, and sent to Mr Pope on 12 June 2015, that confirmed the decision of WorkCover Queensland ("WorkCover") to terminate his entitlement to compensation (in relation to the injury sustained on 1 June 2014) from 11 December 2014 in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
- [3]Having heard the evidence of Dr Simon Gatehouse on 24 August 2015, the parties reached agreement in relation to the first appeal. By consent of the parties, the Commission made the following orders on 25 August 2015:
- The Appeal is allowed.
- The decision of Simon Blackwood (Workers' Compensation Regulator) (R41024) dated 12 June 2015 in respect of WorkCover claim number S13UV156233 is set aside and substituted with another decision that the Appellant has an ongoing entitlement to weekly benefits and medical expenses past 11 December 2014 in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003.
- Costs are to be agreed between the parties.
- Failing agreement, the parties are to be at liberty to bring an application in relation to costs to the Commission.
- [4]The second appeal (WC/2015/171) was against the Regulator's decision to confirm the decision of WorkCover to reject Mr Pope's application for compensation in accordance with s 32 of the Act. The relevant event in relation to the injury occurred on 21 November 2014.
- [5]On 23 September 2015, the Commission published reasons for decision and made the following orders:
- The appeal is allowed.
- The decision of the Regulator is set aside.
- The Regulator is to return the Appellant's application for compensation to WorkCover to determine the period for which the incident on 21 November 2014 continued or continues to aggravate the Appellant's personal injury.
- The Regulator is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
- [6]The parties negotiated about the costs payable in relation to the first appeal and the second appeal. The Regulator agreed to pay the costs of the first appeal as agreed between the parties. Costs are no longer in dispute in that matter.
- [7]In relation to the second appeal, the dispute centres on the appropriateness of counsel's fees and instructing solicitor's allowances for both days of the hearing. In particular, the issue between the parties is whether the Regulator should pay the following costs:
- (a)counsel's fees for the first day;
- (b)counsel's fees for the second day;
- (c)attendance of a solicitor with counsel on Day 1 or Day 2.
Legislative provisions
- [8]Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ("the Regulation") sets out the power to award costs. The parts conferring power on the Commission provide:
- (1)"A decision to award costs of a proceeding heard by … the industrial commission is at the discretion of the … commission.
- (2)If the … commission awards costs-
- (a)costs in relation to counsel's or solicitor's fees are as under the Uniform Civil Procedure Rules 1999, schedule 3, part 2, scale E; ...
- (3)The … 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 … commission is satisfied the amounts are inadequate having regard to-
- (a)the work involved; or
- (b)the importance, difficulty or complexity of the matter to which the proceeding relates."
- [9]The scale of costs in schedule 3, part 2, scale E includes provision for:
- (a)counsel's fees on trial or hearing (other than an application in a proceeding) - first day - $1,120.00 (6(f));
- (b)counsel's fees 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) - $750.00 (6(g));
- (c)counsel's fees on each subsequent day of hearing not included in 6(g)) - $383.00 (6(h));
- (d)on hearing with counsel - attendance of a solicitor with counsel (if attendance is certified for by the court) - each day - $450.00 (8(a)).
- [10]The scale of costs in schedule 3, part 1 includes statements that a court may direct that costs be allowed for counsel or as solicitor acting as advocate are to be less than the costs set out in part 2, and that a court may disallow the costs of a step taken by a party in a proceeding if the court considers the step was unnecessary for the proper conduct of the proceeding.
Mr Pope's submissions
- [11]Mr Pope submits that he should be able to recoup the costs of both counsel and solicitor during the trial of WC/2015/171 as these were necessary and proper costs because:
- (a)The ordinary rule should apply and costs should ordinarily follow the event.
- (b)As proof of the logic of the ordinary rule, had Mr Pope been unsuccessful in WC/2015/171, it is expected that the Regulator would have submitted that its costs should follow the event in full, such that the two matters cancelled each other out.
- (c)Even if some portion only is to be allowed, it is suggested that that ought not be less than 50%, having regard to those factors mentioned in s 132 of the Regulation. If it is appropriate to allow costs uplifted by 50% in one matter, by analogy, it seems apt that an add on allowance of 50% be made in a second matter run concurrently, where the Applicant had to run two matters, with the commensurate increased work involved.
- (d)Mr Pope made a favourable offer to settle both matters.
- [12]Mr Pope acknowledges that the Commission has a discretion in relation to the award of costs.[1]
- [13]In support of the exercise of that discretion in his favour he notes that on Day 1 the Regulator asked that both matters be stood down so negotiations could ensue. In those discussions, Mr Pope notes that he offered to settle both appeals on the basis that:
- (a)WC/2015/170 be conceded (in the terms which happened the following day), but costs were only sought at 50% of the scale;
- (b)WC/2015/171 was likewise to be conceded, with an order in terms of paragraphs 1 to 3 as eventually pronounced, but that there be no order as to costs.
- [14]Mr Pope contends that he was in a position to perform such a settlement of both appeals, and the offer to settle them was rejected. As to WC/2015/171, the offer was that there be no order as to costs. Both proceedings (WC/2015/170 and WC/2015/171) continued on the balance of Day 1 and overnight into Day 2. Matter WC/2015/171 was never conceded and judgement was necessary.
- [15]Mr Pope states that he did significantly better than his offer to settle both appeals. Ultimately orders were made that costs follow the event in both appeals. The offer made was effectively for one quarter of the overall costs should costs follow the event. In WC/2015/171, Mr Pope offered to resolve the matter on the basis that he recover no costs and that an order be made in terms of paragraphs 1, 2 and 3 only of what became the four orders pronounced. In his submission, he should be allowed his costs including both days.
- [16]Mr Pope also seeks costs for this application.
The Regulator's submissions
- [17]The Regulator disputes its obligation to pay the daily fees of counsel and instructing solicitor at the hearing on the basis that, because the appeals were heard together, those fees should not be duplicated. The Regulator's position is that only one set of daily fees for both counsel and instructing solicitor should be paid where the appeals were heard together.
- [18]Consequently, the Regulator is willing to pay the costs set out in the schedule attached to Mr Pope's submissions (ignoring the column "Respondent's contention") with the exception of items 6(f), 6(h) and 8(a), in the total amount of $4,949.05. In other words, the Regulator is willing to pay all the costs of filing and preparation but not a duplication of the daily fees of counsel and instructing solicitors.
- [19]The Regulator submits that fairness[2] would require that counsel and solicitor appearing in a joint appeal be paid for their appearances only once but not twice.
- [20]In support of that submission, the Regulator refers to the Queensland Legal Services Commission's Regulatory Guide 8 Billing Practices - Some Key Principles, quoting Principle 16: "lawyers should not charge one unit of time more than once." The examples given to illustrate that principle include lawyers who act for multiple clients whose proceedings are heard together. The Guide expresses the view that, in those circumstances, the costs of one day's work should be apportioned between the clients pro rata.
- [21]The present case is the converse of that situation, as the lawyers were acting for the same client in relation to two closely related appeals that were scheduled to be heard together. The Regulator submits that the present situation is "squarely analogous" with the situation described in the Guide. Although it might have been more elegant to divide counsel's and solicitor's daily fees between the two matters, for simplicity the Regulator accepted the offer in relation to one appeal and contests the costs application in relation to the other.
- [22]The Regulator notes that by order of Vice President Linnane the two appeals were to be heard together and the parties were directed to file a joint trial plan prior to the hearing. The joint trial plan was filed on 4 August 2015.
- [23]The Regulator acknowledges that the Commission has discretion in relation to the award of costs. It submits that if (contrary to its submission) the concession or timing of the concession has any bearing in relation to costs of appearances, the result of the Regulator conceding on the first day of hearing would have resulted in a costs agreement to pay half the costs of one appeal. The costs agreement proposed by the Regulator is considerably greater than that.
- [24]The Regulator seeks:
- (a)an order that it be required to pay Mr Pope's costs in the Commission in the amount of $4,949.05 calculated as by reference to a table provided to the Commission by the parties; and
- (b)an order that Mr Pope pay the Regulator's costs of this application in the amount of $383.00.
Consideration
- [25]The general principles about the award of costs were set out by the High Court in Latoudis v Casey[3] and usefully summarised by Martin J in Blackwood v Egan.[4] The relevant principle for this application is that costs are not awarded by way of punishment or disapproval of the unsuccessful party, but are to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings.
- [26]The Commission has a broad discretion about whether to award costs of a particular proceeding. If it decides to award costs, the Commission has some discretion in the amount of costs to be awarded in matters such as this, but that discretion is constrained by (or by reference to) the amounts specified in the scale of costs set out in schedule 3.
- [27]Some of the authorities cited by counsel on this application provide guidance as to how the discretion should be exercised in this case. The following quotes suffice.
- [28]In R v Hore; Ex parte Brisbane City Council,[5] Hoare J (with whom Hanger J and Stable J agreed) wrote:
"Where there are a number of appeals involving precisely the same points, if there has been an earlier agreement to have them heard together, it would be quite unrealistic to allow a full fee on brief on each appeal and comparable solicitor's costs. Depending on the particular circumstances, in such a case both in respect of the fee on brief and refreshers, I should think that a normal full fee should not be allowed on each separate appeal. On the other hand, I should think that usually it would be equally incorrect to allow only a total fee of an amount appropriate to one appeal only. Generally speaking (and again depending on circumstances) it would appear appropriate that some moderate increase be made in the proper fee for one appeal and an apportionment of the total among all appeals would, I think, be quite justified. It seems to me that a similar approach would be the correct one on relevant items of solicitor's costs." (emphasis added)
- [29]R v Hore; Ex parte Brisbane City Council was followed in Meade v Queensland Ambulance Service[6] where White J stated:
"It seems clear as a consequence of the approach in Hore that it is not necessary that the actions or applications be consolidated or that one is run as a test case before apportionment can occur. Hore reflects that in a practical rather than a formal sense there be no double charging."
- [30]Having reviewed and made rulings about numerous specific items of a taxation carried out by a taxing officer of the Supreme Court in respect of a bill of costs, White J noted:
"This is a review of the exercise of a discretion and whilst I might have a different view as to some items nonetheless it cannot be concluded that the taxing officer's discretion miscarried in a number of items as was urged by the applicant."
- [31]The passages from R v Hore and Meade were quoted with approval by the New South Wales Court of Appeal in Bechara v Legal Services Commissioner.[7] Having considered those and other judgements, McClellan CJ at CL (with whom McColl and Young JJA agreed) wrote:
"The correct principle can be stated as follows: where a solicitor is retained to act for multiple clients whose proceedings are heard together with evidence in one being evidence in the other (regardless of whether the proceedings are formally consolidated), and the clients are charged on a time-costed basis, there must be an apportionment of time spent on matters common to two or more of the proceedings. One unit of time cannot be charged more than once.
The precise mechanism of apportionment will depend on the circumstances of the case. It may be appropriate to make an equal apportionment where the time spent on each client's case is for all purposes, equal. In other cases, the practitioner may need to calculate how much time was spent exclusively on each client's case, and how much time was spent on common issues, and charge accordingly. In all cases, the apportionment must pay due regard to the principle that one unit of time may not be charged more than once."[8]
- [32]Young JA added:
"I also agree that the precise mechanism of apportionment will depend on the circumstances of the case. There will be some cases where there are some special features of a particular client's case that are absent from the others … [and] the apportionment would need to factor in some broad brush approach to the time devoted to each client with the balance shared equally. In other cases, an equal apportionment would be appropriate. However as his Honour notes, in all cases, the apportionment must pay due regard to the principle that one unit of time may not be charged more than once."[9]
- [33]As the submissions on behalf of Mr Pope correctly observe, the decision in Bechara v Legal Services Commissioner concerned time-based costing and in that sense the statements quoted above do not apply directly to the scale fees that are being considered here. Nonetheless, I consider that the general principle repeated by the Court can inform the decision on the present application. The statements of the Queensland courts, quoted above, apply more directly to this case and identify a general principle and the scope of discretion in applying it.
- [34]With those statements as a guide to the exercise of the Commission's discretionary power, it is appropriate to approach the matter of costs in the two appeals as a whole and work out what would be appropriate, rather than focus on items 6(f), 6(h) and 8(a) separately and in isolation from items that the Regulator has agreed to pay.
- [35]The two appeals concerned separate matters that did not involve precisely the same points. Each appeal had its own separate features. The Commission directed that they be heard together. The joint trial plan listed three witnesses for the Appellant (including Dr Gillett) and five witnesses to be called by the Regulator.
- [36]In his opening address at the hearing of the appeals, counsel for Mr Pope referred to three work events and two appeals. The first work event was on 17 February 2014. The second event (which was the subject of the first appeal) was on 1 June 2014. The third event (which was the subject of the second appeal) occurred on 21 November 2014.
- [37]On Day 1, evidence was given via telephone by Dr Gatehouse, a specialist orthopaedic surgeon dealing in spinal surgery. Immediately after he was excused as a witness, counsel for the Regulator sought an adjournment to seek instructions from her client, and indicated that she did not intend to call two named witnesses. When the hearing resumed some 56 minutes later, counsel for Mr Pope advised the Commission that the parties had not "progressed the matter, regrettably, although in part we might have." He noted that counsel for the Regulator had advised that she was not going to call the two lay witnesses scheduled for the following day. He also indicated that, as Dr Gillett would not say anything additional to the evidence from Dr Gatehouse, he would not call Dr Gillett to give evidence. Two other witnesses were called by the Regulator. That completed the evidence for the Regulator. Both counsel agreed to prepare submissions.
- [38]At the commencement of the hearing on 25 August 2015, counsel for the Regulator announced that the Regulator had conceded the termination appeal (WC/2015/170), which related to the second incident in June 2014. She handed up a signed consent order to that effect.
- [39]In the course of his submissions, made after counsel for the Regulator made her submissions in relation to WC/2015/171, counsel for Mr Pope outlined the orders he sought in relation to WC/2015/171. He submitted that costs should follow the event "as they have in the first one." He added that his client was happy if the costs order were to provide that if the parties could not agree they could come back to the Commission. Having made the consent order in relation to WC/2015/170 (see [3]), I stated that, if similar orders were made in relation to WC/2015/171, I assumed that the parties could work out how costs are divided up between the two actions. I was mistaken.
- [40]Having regard to the circumstances of the two appeals (which involved separate events and applications, but the same parties, and practical settlement of the first appeal at the end of Day 1), it is appropriate to proceed on the basis that Mr Pope is entitled to his costs for:
- (a)both appeals on Day 1; and
- (b)one appeal on Day 2.
- [41]I note that, as counsel for the Regulator observed, item 5(a) in the scale of fees provides expressly for preparing for trial including brief if counsel is engaged. That amount has been paid for the first appeal, and the Regulator has agreed to pay it for the second appeal.
- [42]Bearing that in mind, but given that some separate work was necessary in relation to each of the two appeals at the hearing, it is appropriate to allow overall for:
- (a)a total of 1.25 times the amounts provided in the scale of costs for counsel and solicitor for the first day of a hearing for Day 1 (items 6(f) and 8(a)); and
- (b)the usual rates for one hearing of less than two hours for Day 2 (items 6(h) and 8(a)).
- [43]In making that assessment, I have taken into account the fact that offers to settle were made, but have not given any weight to the precise terms of the offers, preferring to look more broadly at what happened in the course of the hearing of the appeals, and what action was taken in relation to each appeal. I have also had regard to the statement in s 132(3) of the Regulation that the Commission may allow costs up to 1.5 times the amounts provided for under s 132(2)(a) in relation to any item (albeit for one appeal), if the Commission is satisfied that the amounts are inadequate having regard to the work involved, or the importance, difficulty or complexity of the matter to which the proceeding relates. There is no suggestion that the first appeal or the second appeal were particularly complex matters, but I am satisfied that additional work was involved on Day 1 of the hearing because two different, but related, appeals were being heard together.
- [44]Given that the costs of the first appeal have been paid in relation to two days, it only remains to calculate how much extra the Regulator should pay in relation to the second appeal. By reference to [42] that would be:
- (a)for Day 1, 0.25 times the amount provided in the scale for counsel and solicitor for the first day of a hearing ($280.00 and $112.50);
- (b)nothing for Day 2.
- [45]On that basis, taking into account what the Regulator has agreed to pay in relation to other specified items in the scale of costs, the total amount to be paid by the Regulator is calculated as follows:
- (a)Item 1 ……………….. $825.00
- (b)Item 5(a) $2,505.00
- (c)Item 6(d) $362.00
- (d)Item 6(e) $201.00
- (e)Item 6(f) $280.00
- (f)Item 8(a) $112.50
- (g)Item 11(a)(i) ………….. $284.00
- (h)Item 11(a)(ii) ………….. $772.05
Total $5,341.55
- [46]Accordingly, I order that the Regulator pay the costs of Mr Pope of and incidental to the appeal in WC/2015/171 in the sum of $5,341.55.
- [47]Given that each party has been successful in part and unsuccessful in part in relation to this application, I make no order as to the costs of this application.
Footnotes
[1] He refers to the decision in Wilson v Lambkin & Ors (No 2) [2010] QDC 302 as a guide to such discretion.
[2] The principle that costs follow the event "is grounded in reasons of fairness and policy …" Oshlack v Richmond River Council (1998) 193 CLR 72 at 79 (Brennan CJ).
[3] Latoudis v Casey (1990) 170 CLR 534
[4] Blackwood v Egan [2014] ICQ 020.
[5] R v Hore; Ex parte Brisbane City Council [1969] Qd R 75.
[6] Meade v Queensland Ambulance Service [1996] QSC 62.
[7] Bechara v Legal Services Commissioner [2010] NSWCA 369.
[8] Bechara v Legal Services Commissioner [2010] NSWCA 369, [138], [139].
[9] Bechara v Legal Services Commissioner [2010] NSWCA 369, [5].