Read v Workers' Compensation Regulator No. 2
[2016] QIRC 117
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Read v Workers' Compensation Regulator No. 2[2016] QIRC 117
- Add to List
Read v Workers' Compensation Regulator No. 2[2016] QIRC 117
Read v Workers' Compensation Regulator No. 2[2016] QIRC 117
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Read v Workers' Compensation Regulator No. 2 [2016] QIRC 117 |
PARTIES: | Read, Michael (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2015/27 |
PROCEEDING: | Application for Costs |
DELIVERED ON: | 8 November 2016 |
HEARING DATES: | 17 August 2016 (Application for Costs) 12 September 2016 (Appellant Submissions) 26 September 2016 (Respondent Submissions) 30 September 2016 (Appellant Submissions in reply) |
HEARD AT: | Heard On the Papers |
MEMBER: ORDERS: | Deputy President Swan
|
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR COSTS – Appellant successful in initial proceedings – Debate concerning a claim for an uplift in costs for Appellant – Matter in initial proceedings not considered complex or difficult – Application for uplift for Costs is Dismissed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Workers' Compensation and Rehabilitation Regulation 2014 Uniform Civil Procedure Rules 1999 Simon Blackwood (Workers' Compensation Regulator) v Egan [2014] ICQ 020 Latoudis v Casey (1970) 170 CLR 534 Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) (No. 2) – Decision Read v Workers' Compensation Regulator [2016] QIRC 017 Pritchard v Q-COMP 181 QGIG 625 |
APPEARANCES: | Murphy Schmidt Solicitors, for the Appellant. Workers' Compensation Regulator, the Respondent. |
Decision
- [1]This is an Application for Costs pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) and s 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (the Regulations).
- [2]Section 558(3) of the Act provides that:
"Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation".
- [3]Section 132 of the Regulations provides:
"132 Costs - proceeding before industrial magistrate of industrial commission
(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.
(2) If the magistrate or commission award 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; and
(b) costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2009 part 4; and
(c) costs in relation to bailiff's fees are as under the Uniform Civil Procedure (Fees) Regulation 2009, schedule 2, part 2;
- (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 -
(a) The work involved; or
(b) The importance, difficulty or complexity of the matter to which the proceeding relates."
- [4]This Application was heard on the papers.
Relevant Case Law
- [5]
"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful, party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
…
Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution then the dismissal of the proceedings."
- [6]Mc Hugh J also stated at [567]:
"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."
- [7]
"Each of s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 and s 113 of the Regulation* emphasise that the award of costs involves the exercise of discretion. However, in the ordinary case, costs have traditionally followed the event. This is a very ordinary case." [*The applicable legislation to award costs at the time of decision cited above was s 113 of the Workers' Compensation and Rehabilitation Regulation 2003.]
Brief Background to the Application
- [8]On 8 February 2016, the Commission determined that the Appellant's Appeal was upheld and ordered that the Respondent pay the Appellant's costs. (See Read v Workers' Compensation Regulator[4].)
- [9]On 21 April 2016, the Appellant's solicitors forwarded its Schedule of Costs to the Respondent. The offer to settle costs was $24,387.74 (Exhibit SAO-01 to the Affidavit of Sebastian Alexander Olsen, sworn on 17 August 2016).
- [10]The Respondent agreed to pay the Appellant's costs, but rejected the Appellant's claim for the uplift under s 132 of the Regulations.
The Matter to be Determined
- [11]The only matter for determination is whether the uplift is in the circumstances warranted.
Appellant's Submissions concerning the Uplift
- [12]The Appellant submitted that:
- the matter before the Commission involved consideration of a psychological/psychiatric injury;
- the issues involved reasonable management action taken over many years together with stressors which also occurred over many years;
- the Appeal was heard over eight days and 11 witnesses were called to give evidence;
- a large volume of documentation was presented during the Appeal;
- Sixty-six [66] Exhibits were tendered. Many related to e-mails extracts from diaries and Queensland Police Service (QPS)policies; and
- these considerations show that the amount of $16,258.50 for the Appellant's costs was "grossly inadequate given the work involved in the Appeal".
Costs of the Application
- [13]The Appellant was seeking the amount of $383.00 as costs of the Application which had been calculated pursuant to Item 10 under Schedule 3, Scale E of the Uniform Civil Procedure Rules 1999 (URPR).
Orders Sought
- [14]The Appellant seeks the following orders:
- Pursuant to s 132 of the Regulations, the Respondent pay the costs of the Appellant in the sum of $24,387.75.
- The Respondent pay the Appellant's costs of the Application in the amount of $383.00; and
- The Respondent pay the Appellant's costs within 14 days of the date of this order.
Respondent's Reply
- [15]The Respondent calculated the costs payable to the Appellant as $16,258.50. Those were the costs made pursuant to the UCPR, Schedule 3, Scale E together with costs associated with witness attendances pursuant to the Uniform Civil Procedure (Fees) Regulation 2009, Part 4. That is not contested between the parties, but what is contested is the uplift to costs sought by the Appellant.
- [16]The Respondent agreed with the Appellant's identification of the time period taken for the Appeal to be heard as well as the number of witnesses. Its objection was that those issues alone do not of necessity make a matter more complex. Nor does the amount of documentation add to the complexity of a matter.
- [17]
"It was a simple case about whether a psychiatric injury was withdrawn from the statutory definition of 'injury' because it arose out of or in the course of reasonable management action reasonably taken. It differs not at all from other cases of the type which I have encountered in the past seven years. It is all about facts and credibility. I do not suggest that only errors of law may render matters complex or difficult. Factual matters, particularly factual matters dependent on expert evidence, may well justify resort to the multiplier of 1.5 and the briefing of two Counsel. But nothing has been drawn to the attention of the Court which would justify the adoption of that course here.
… It was a pedestrian matter."
- [18]The Respondent claimed that the documents pertaining to the Queensland Police Service were no more complex than that of any other large organisation. As well, the expert evidence given during the hearing was not medically complex.
- [19]It was submitted by the Respondent that a considerable amount of time was lost by the Appellant on account of:
- a late variation by the Appellant of his list of witnesses on 15 May 2015;
- the Appellant's failure to provide all of the surreptitiously recorded conversations and the time needed for the Commission to hear that evidence; and
- the supply by the Regulator of a further list of QPS documents during the course of the hearing.
- [20]The Appellant had submitted that a review of the Transcript (T1-22, line 5) demonstrated the complexity of the Appeal. The comments to which reference has been made hereunder occurred in the preliminary stages of the hearing before witnesses gave evidence.
- [21]The reference to the Transcript relates to comments made by Counsel for the Respondent referring to a number of issues including:
"… serious allegations involving people’s reputations";
"… a further opportunity to take instructions to fully investigate some matters";
"… these cases are very difficult to run"; and
"… having to confer with witnesses on the run, getting instructions from people who are not strictly my clients is well nigh impossible". [T1-22]
Consideration of the Documentary Material
- [22]The Respondent’s comments, at Transcript T1-22, when read in context, relate to a number of concerns experienced by it at the commencement of the hearing concerning the late notification by the Appellant of a changed witness list, amongst other things. That is not a matter for consideration in this Application.
- [23]There is no question that the hearing was lengthy; that there were a number of witnesses; that a consideration of QPS policies and Legislative requirements and other related documents was required; that the documentation was voluminous and that there were sixty-six [66] Exhibits. In the circumstances of this case, in my view, it was not dissimilar to many cases heard and determined by this Commission. The reference to Pritchard v Q-COMP[6] concerning the nature of many cases heard and determined in the Commission is apposite to this matter.
- [24]In the exercise of my discretion pursuant to s 132 of the Regulations, I have determined not to grant the Application.
- [25]The Respondent is to pay costs of $16,258.50 to the Appellant within 14 days of the release of this decision.
- [26]The Application is dismissed.
Footnotes
[1] Simon Blackwood (Workers' Compensation Regulator) v Egan [2014] ICQ 020
[2] Latoudis v Casey (1970) 170 CLR 534
[3] Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) (No. 2) - Decision
[4] Read v Workers' Compensation Regulator [2016] QIRC 017
[5] Pritchard v Q-COMP 181 QGIG 625
[6] Pritchard v Q-COMP 181 QGIG 625