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Workers' Compensation Regulator v Guymer[2019] QIRC 34

Workers' Compensation Regulator v Guymer[2019] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Workers' Compensation Regulator v Guymer [2019] QIRC 034

PARTIES:

Workers' Compensation Regulator

(Applicant)

v

Guymer, Steven

(Respondent)

CASE NO:

WC/2017/173

PROCEEDING:

Application for costs

DELIVERED ON:

22 February 2019

HEARD AT:

On the Papers

MEMBER:

Swan DP

ORDERS:

  1. The application for costs is granted.
  1. That the Respondent pay the Applicant's costs of and incidental to the application to dismiss in matter WC/2016/109 and this application for costs in matter WC/2017/173.
  1. Costs are payable and calculated in accordance with the Uniform Civil Procedure Rules 1991, as in force as at 1 March 2017 to 23 November 2017 and in accordance with s 132 of the Workers' Compensation and Rehabilitation Regulation 2014, that was current to and including 30 August 2017 and assessed under Scale E of the Magistrates Court scale of costs.
  1. That the Respondent pay costs to the Applicant as per the Schedule outlined in the Applicant's submissions filed in the Industrial Registry on 12 December 2018.
  1. That the amount to be paid is $13,545.10; and
  1. That payment be made within one month of the date of this Decision viz., by 22 March 2019.

CATCHWORDS:

WORKERS' COMPENSATION- APPLICATION FOR COSTS - Application made under Workers' Compensation and Rehabilitation Act 2003, by Workers' Compensation Regulator for costs -

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 558(3)

Workers' Compensation and Rehabilitation Regulation 2014, s 132

CASES:

Workers' Compensation Regulator v Guymer [2017] QIRC 080.

Guymer v Workers' Compensation Regulator [2018] ICQ 009.

Gambaro v Workers’ Compensation Regulator [2017] ICQ 5, [14].

Robertson v Hollings [2009] QCA 303, [11].

APPEARANCES:

Mr P.B. O'Neill of Counsel, directly instructed by Ms K. Bednarek of the Workers' Compensation Regulator, the Applicant.

Mr M. Guymer (Snr), on behalf of the Respondent, Mr S. Guymer (Jnr).

[For the discrete purposes of this Application for Costs, the Worker's Compensation Regulator will be identified as the Applicant and Mr Steven Guymer will be identified as the Respondent.]

Reasons for Decision

  1. [1]
    The Workers' Compensation Regulator lodged an Application for Costs on 11 September 2017.

Legislation

  1. [2]
    Section 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides:

  558Powers of appeal body

  (1) In deciding an appeal, the appeal body may -

   (a) confirm the decision; or

   (b) vary the decision; or

   (c) set aside the decision and substitute another decision; or

   (d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.

  (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.

  (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.

  1. [3]
    Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (the Regulation) provides:

132Costs - 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 -

 (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

 (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.

  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 -

 (a) the work involved; or

 (b) the importance, difficulty or complexity of the matter to which the proceeding relates.

Material Facts relied upon by the Applicant to support the Application

  1. [4]
    The summarised background to this matter is as follows:
  • By way of a Notice to Appeal in matter WC/2016/109 (an application for workers' compensation) was filed by the Respondent with the QIRC (the Commission) on 19 June 2015.
  • At the conclusion of the Respondent's case, the Applicant filed an Application to dismiss the Appeal.
  • That Application was granted by the Commission for reasons outlined in its decision dated 30 August 2017.[1]
  • This Application relates to costs incurred by the Applicant in that matter.
  1. [5]
    The Applicant's detailed claim is as follows:
  • The Respondent's claim for workers compensation was the fifth claim of similar nature made by Mr Guymer (Jnr) since 2011.
  • On each occasion, Mr Guymer (Snr) represented his son.
  • The last claim (to which this application relates), was for an "aggravation of adjustment disorder due to reprisal action by management over a period of time to April 2015."
  • The Commission made a preliminary finding on the issue of injury that Mr Guymer (Jnr) had not sustained a new psychiatric injury or an aggravation of a pre-existing psychiatric injury.  Effectively, it had been determined from the medical evidence that over an extensive period of time (years) Mr Guymer (Jnr's) diagnosis had not changed.
  • The decision of the Commission was appealed by the Respondent and was subsequently dismissed on 4 October 2018.[2]
  • On 4 October 2018, the Commission directed that this Application was to be determined on the papers.
  1. [6]
    On 28 March 2017, the Applicant provided to the Respondent a "Calderbank Offer" which was rejected by the Respondent.
  1. [7]
    On 29 March 2017, during the hearing of the substantive matter to which this Application relates, the Applicant again provided the Respondent with the Offer which was again rejected.
  1. [8]
    In that correspondence the Applicant stated:

On Tuesday, 28 March 2017 the Regulator made an offer to settle this matter on the basis that Mr Guymer, the Appellant withdraw the appeal and each party bear their own costs.  That offer was rejected by Mr Mark Guymer.

The Commission heard evidence yesterday from Dr Helen Bothwell, General Practitioner and Dr Trevor Lotz, Psychiatrist, the two treading medical practitioners for Mr Steven Guymer.  On the basis of their evidence as presented yesterday, the Appellant cannot succeed in this appeal and it would be fair to say that the appeal is doomed to fail.

After hearing that evidence the Regulator re-opened its previous offer and that offer remains open until close of business today 29 March 2017 at 4.30 p.m.

If the Appellant fails to accept this offer, he should be on notice that the Regulator will make an application for costs at the end of the matter if the appeal is dismissed.  The Regulator reserves the right to produce this correspondence to the Commission in support of a costs application against Mr Steven Guymer.  The Regulator will, if successful in obtaining a costs order, pursue all means available to it to enforce that Order.

 Offer to Settle

As indicated, the Regulator has decided to make a commercial offer of settlement in full and final satisfaction of the appeal to the Queensland Industrial Relations Commission.

  1. The Respondent offers to settle the appeal on the basis that the appeal is withdrawn and each party bears their own costs of and incidental to the appeal.

As indicated above, the correspondence and offer will be brought to the Commission's attention on the question of costs.

  Please advise as to Mr Guymer's response to the offer.

  Senior Appeals Officer [signed]

  Workers' Compensation Regulator

 The respondent's submissions

  1. [9]
    The primary claim from the Respondent was that neither Mr Guymer (Snr) or Mr Guymer (Jnr) were legally qualified.
  1. [10]
    It was claimed that the Respondent did not understand the nature of a "Calderbank Offer".
  1. [11]
    The Respondent referenced and queried matters raised during the hearing which are now, of course, academic in that the matter has been finalised.
  1. [12]
    The Respondent also queried the quantification of the Applicant's costs as outlined in the Applicant's submissions.  Questioned, was an extra amount of $1,453.86 which is claimed should not have been included in the costs calculation.
  1. [13]
    Also claimed was that the Respondent had pursued his claim upon reliance of the Psychiatrist's report and that he had, over a period of time, obtained compensation medical certificates.
  1. [14]
    In response to these claims, the Commission finds as follows:
  • It is not accepted that the Respondent did not understand the nature of the "Calderbank Offer".  The offer was set out in unambiguous terms and identified clearly the consequences which may occur if a failure to accept the offer occurred.  Notwithstanding that, it was always open to the Respondent to seek further advice on that point if required.
  • Gambaro v Workers' Compensation Regulator[3] citing Keane J.A. in Robertson v Hollings[4] was referred to by the Industrial Court upon hearing the appeal of this matter.  Martin J stated "… that a lack of legal representation is a misfortune, and not a privilege, are apposite."
  1. [15]
    The issues raised by the Respondent which are said to have occurred during the initial hearing of the substantive matter (viz., the appeal against the decision of the Workers' Compensation Regulator) are irrelevant for the purposes of this costs application.  All matters pertaining to the substantive matter, have been heard and determined by this Commission[5] and were the subject of an unsuccessful appeal by the Respondent to the Industrial Court.[6]
  1. [16]
    As to the quantification of the Applicant's costs, the Applicant's position has been explained as follows:

Regarding the quantification of the Applicant's costs, at least part of that discrepancy has arisen because the Respondent has required the Applicant to formally pursue costs including the preparation of detailed submissions.  The Applicant is entitled to an award of those costs under the Scale.[7]

  1. [17]
    I have accepted those submissions as accurately reflecting the situation.

CONCLUSION

  1. [18]
    I have accepted the submissions of the Applicant and the Application for Costs should be granted.

Orders

1. The application for costs is granted.

2. That the Respondent pay the Applicant's costs of and incidental to the application to dismiss in matter WC/2016/109 and this application for costs in matter WC/2017/173.

3. Costs are payable and calculated in accordance with the Uniform Civil Procedure Rules 1991, as in force as at 1 March 2017 to 23 November 2017 and in accordance with s 132 of the Workers' Compensation and Rehabilitation Regulation 2014, that was current to and including 30 August 2017 and assessed under Scale E of the Magistrates Court scale of costs.

4. That the Respondent pay costs to the Applicant as per the Schedule outlined in the Applicant's submissions filed in the Industrial Registry on 12 December 2018.

5. That the amount to be paid is $13,545.10; and

6. That payment be made within one month of the date of this Decision viz., by 22 March 2019.

Footnotes

[1] Workers' Compensation Regulator v Guymer [2017] QIRC 080.

[2] Guymer v Workers' Compensation Regulator [2018] ICQ 009.

[3] Gambaro v Workers’ Compensation Regulator [2017] ICQ 5, [14].

[4] Robertson v Hollings [2009] QCA 303, [11].

[5] Workers' Compensation Regulator v Guymer [2017] QIRC 080.

[6] Guymer v Workers' Compensation Regulator [2018] ICQ 009.

[7] Applicant's submissions in reply, p 1, [5].

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Guymer

  • Shortened Case Name:

    Workers' Compensation Regulator v Guymer

  • MNC:

    [2019] QIRC 34

  • Court:

    QIRC

  • Judge(s):

    Swan DP

  • Date:

    22 Feb 2019

Appeal Status

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

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