Workers' Compensation Regulator v Schepis
[2017] QIRC 21
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- Unreported Judgment
- Workers' Compensation Regulator v Schepis[2017] QIRC 21
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Workers' Compensation Regulator v Schepis[2017] QIRC 21
Workers' Compensation Regulator v Schepis[2017] QIRC 21
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Workers' Compensation Regulator v Michelle Debra Schepis [2017] QIRC 021 | |
PARTIES: | Workers' Compensation Regulator (Applicant) v Michelle Debra Schepis (Respondent) | |
CASE NO: | WC/2015/163 | |
PROCEEDING: | Application for costs | |
DELIVERED ON: | 27 February 2017 | |
HEARING DATE: | 27 February 2017 | |
MEMBER: | Deputy President O'Connor | |
ORDERS: | 1. That the Respondent pay the Applicant's costs of and incidental to the appeal fixed in the sum of $7,360.00. | |
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR COSTS – An appeal against a decision of the Appeals Unit of the Workers' Compensation Regulator – Where the matter was adjourned and hearing dates vacated due to the unavailability of a witness – Where the appeal was dismissed – Where an order was made as to costs – Where the Applicant in that matter was ordered to pay the Workers' Compensation Regulator's costs of and incidental to the appeal. | |
CASES: | Uniform Civil Procedure Rules 1999, Schedule 3 Scale of Costs - Magistrates Court, Scale E Workers' Compensation and Rehabilitation Act 2003, s 558(3) Workers' Compensation and Rehabilitation Regulation 2003, s 113 Latoudis v Casey (1990) 170 CLR 534 | |
APPEARANCES: | Mr P.B. O'Neill, Counsel directly instructed by the Applicant. Ms M.D. Schepis, self-represented Respondent. | |
Decision from Bench
- [1]This is an application filed on 4 January 2017 by the Workers' Compensation Regulator ("the Applicant") for costs of and incidental to the appeal against a decision of the Appeals Unit of the Workers' Compensation Regulator by the Respondent, Ms Michelle Debra Schepis ("the Respondent") heard in the Queensland Industrial Relations Commission ("the Commission") on 7 March 2017.
- [2]On 27 July 2016, the Commission released a decision dismissing the appeal and affirming the decision of the the Applicant. The Respondent was ordered to pay the Applicant's costs of and incidental to the appeal, to be agreed or, failing agreement, to be the subject of a further application to the Commission.
- [3]The Applicant seeks the following:
- (1)An order, pursuant to s 558 of the Workers' Compensation and Rehabilitation Act 2003, that the Respondent in this Application, hereafter referred to as Ms Schepis, pay the Regulator's costs in the amount of $7,360.00, or, alternatively, the Commission order that costs be assessed.
- (2)The following decision:
- (a)That Ms Schepis pay the costs of the Applicant in this Application, hereafter referred to as the Workers' Compensation Regulator (the Regulator), in the sum of $6,791.00, or alternatively the Commission order that costs be assessed; and
- (b)That Ms Schepis pay the Regulator's costs of and incidental to this Application in the amount of $569.00
- (i)Item 6(j) – Counsel's fees on an application in proceeding - $186.00;
- (ii)Item 10 – Application to the court - $383.00.
- [4]This application was heard in the Commission on 27 February 2017.
- [5]By way of affidavit of Ms Joanne Webb (Senior Review and Appeals Officer of the Workers' Compensation Regulator) the Applicant details correspondence with the Respondent in which she does not dispute the Applicant is entitled to its costs of the appeal but she advised the Commission she does not have the financial means to meet any costs order.
- [6]
"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. 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."[2]
His Honour the Chief Justice further stated:
"Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. 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 than the dismissal of the proceedings."[3]
McHugh J said:
"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."[4]
- [7]Costs before the Commission are calculated in accordance with s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), Schedule 3 Scale of Costs - Magistrates Court, Scale E of the Uniform Civil Procedure Rules 1999 (UCPR) and s 113 of the Workers' Compensation and Rehabilitation Regulation 2003.
- [8]Section 558(3) provides:
"(3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation."
- [9]The Applicant has submitted that it is entitled to Magistrates Court scale E costs (adjusted to reflect the appropriate costs at the time the costs were incurred) in the sum of $6,791.00 as set out below:
Item 5(a) - Preparation for trial where counsel is engaged $2,505.00
Item 6(d) – Counsel's fees for inspections of works – $543.00
transcript of proceedings - 3 hours at $ 181.00/hr
Item 6(f) – Counsel's fee to appear at hearing (7/03/2016) $1,120.00
Item 6(g) – Refresher fees for adjourned hearing on $1,500.00
14 and 15 September 2015 – ($750 x 2 days)
Item 8(b) - Attendance of clerk $284.00
Item 11(a)(i) - Disclosure - requesting $284.00
Item 11(a)(i) – Disclosure - requesting $555.00
Total $6,791.00
- [10]The Applicant also contents it is entitled to be compensated by the Respondent for the costs of making this present application, in the sum of $569.00.
- [11]The following chronology is extracted from the information deposed by Ms Joanne Webb in her affidavit filed in the Commission on 4 January 2017:
Chronology
"(a)On 27 July 2016, the Commission delivered its decision in this matter, which was to dismiss appeal WC/2015/163 and order Ms Schepis pay the Regulator’s costs of and incidental to the appeal. Attached hereto and marked “JMW1” is a copy of the decision dated 27 July 2016.
- (b)On 1 August 2016, I wrote to Ms Schepis’ legal representative by email setting out a schedule of the Regulator’s properly recoverable costs and requesting payment of same. Attached hereto and marked “JMW2” is a copy of this correspondence to Ms Schepis’ legal representative dated 1 August 2016.
- (c)On 15 August 2016, I wrote to Ms Schepis’ legal representative by email as I had not received a response, attaching a further copy of a letter requesting payment of the Regulator’s costs. Attached hereto and marked “JMW3” is a copy of this email dated 15 August 2016.
- (d)On 25 August 2016, I received correspondence by email from Ms Schepis’ legal representative stating that his firm no longer represents Ms Schepis, that Ms Schepis’ instructions were that she did not have financial capacity to pay and that the Regulator will need to contact her directly. Attached hereto and marked “JMW4” is a copy of the Regulator’s correspondence dated 25 August 2016.
- (e)On 31 August 2016, I wrote to Ms Schepis by email requesting payment of the Regulator costs. Attached hereto and marked “JMW5” is a copy of the email dated 31 August 2016 and correspondence dated 30 August 2016, which was attached to the email.
- (f)On 9 September 2016, I spoke to Ms Schepis by telephone. During this discussion Ms Schepis informed me that she had received my email, that she does not have any money, that she had not read my correspondence to her and requested time to consider this correspondence. Attached and marked “JMW6” is a file note of this telephone discussion with Ms Schepis on 9 September 2016.
- (g)On 28 September 2016, I spoke with Ms Schepis by telephone. During this discussion Ms Schepis informed me that she is on a widow’s pension and is having trouble paying bills. Attached hereto and marked “JMW7” is a copy of a file note of this telephone discussion with Ms Schepis on 28 September 2016.
- (h)On 5 October 2016, I spoke with Ms Schepis by telephone. During this discussion Ms Schepis informed me that she does not dispute the items that the Regulator is claiming as costs. I then informed her that a Consent Order would be forwarded for her signature. Attached hereto and marked “JMW8” is a copy of a file note of this telephone discussion with Ms Schepis on 5 October 2016.
- (i)On 5 October 2016, I sent a Consent Order for the costs of the appeal to Ms Schepis by facsimile. Attached hereto and marked “JMW9” is a copy of the facsimile sent to Ms Schepis, the Consent Order and the transmission report, which shows that the facsimile was transmitted successfully.
- (j)On 27 October 2016, I attempted to contact Ms Schepis by telephone, without success, as I had not received a signed Consent Order.
- (k)On 9 November 2016, I attempted to contact Ms Schepis by telephone, without success, as I had not received a signed Consent Order.
- (l)On 22 November 2016, I spoke with Ms Schepis by telephone. During this discussion Ms Schepis informed me that, as soon as she saw the Consent Order, she was not prepared to sign it. Attached hereto and marked “JMW10” is a copy of a file note of this telephone discussion with Ms Schepies on 22 November 2016."
- [12]This matter was due to be heard 14 and 15 September 2015 but was adjourned after one witness was unexpectedly unavailable. The Applicant includes two refreshers for counsel in it claim. In my view, the Applicant is entitled to this item of the claim.
- [13]Mrs Schepis appeared on her own behalf at the hearing. She informed the Commission she was currently in difficult financial circumstances and was living on a widow's pension. In those circumstances, while she did not challenge the appropriateness of the costs order, she is not currently in a position to comply with any costs order.
- [14]Counsel for the Regualtor submitted he did not have the delegated authority to seek to waive payment in relation to a costs order. However, he advised there is a mechanism within the Regulator for Mrs Schepis to make an application to have the costs waived, or a payment plan put in place, for consideration based upon financial hardship.
- [15]Having heard the submissions of the Applicant and Respondent in this costs application and considering the material filed I am of the view that the Regulator is entitled to an order for costs in the amount sought in the application.
Orders
- [16]For the reasons set out above I make the following order:
- That the Respondent pay the Applicant's costs of and incidental to the appeal fixed in the sum of $7,360.00.