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Workers' Compensation Regulator v Sing QIRC 78
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation Regulator v Sing  QIRC 078
Workers' Compensation Regulator
Sing, Surila Devi
Application for costs
29 May 2019
On the papers
Order for costs made
WORKERS' COMPENSATION - APPLICATION FOR COSTS - Application made under Workers' Compensation and Rehabilitation Act 2003, by the Workers' Compensation Regulator
Workers' Compensation and Rehabilitation Act 2003, s 558(3)
Workers' Compensation and Rehabilitation Regulation 2014, s 132
Blackwood v Egan  ICQ 020
Latoudis v Casey (1990) 170 CLR 534
Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) (No. 2)
- Mrs Surila Sing has unsuccessfully appealed a decision of the Workers' Compensation Regulator made on 24 April 2017 in which her application for compensation arising from a psychological injury sustained during the course of her employment with the West Moreton Hospital and Health Service was rejected.
- The appellant's appeal was dismissed by the Commission in a decision dated 4 January 2019. Subsequently, the Workers' Compensation Regulator has made an application for costs.
- In directions dated 10 January 2019, the parties were informed that the matter of costs would be decided on the papers following the preparation of written submissions by both parties. In this regard, Mrs Sing's submissions were received on 28 February 2019 while the Regulator's submissions were received on 11 March 2019.
- Section 558(3) of the Workers' Compensation and Rehabilitation Act 2003 provides:
558 Powers 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.
- Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 provides:
132 Costs - proceeding before industrial magistrate or 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 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.
- (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.
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.
- In his judgment in Latoudis v Casey, McHugh J stated at :
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.
- In Q-COMP v Australian Language Schools Pty Ltd, Hall P stated:
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.]
- Relevant to these proceedings, the following principles are distilled from the authorities and applied:
- (i)Costs are not awarded by way of punishment of the unsuccessful party. 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;
- (ii)In appeals brought under the Workers' Compensation and Rehabilitation Act 2003, the practice is that costs follow the event. That is, it is the established practice of the Commission that the successful party be awarded costs.
- The Regulator submitted that no adequate reason had been advanced by Mrs Sing to justify an exception being made to the normal rule that costs follow the event. It was pointed out that Mrs Sing was put on notice during the s 552A conference before Commissioner Fisher on 17 November 2017 that if she were to lose her appeal "she would have to pay the Regulator's costs".
- The Regulator noted Mrs Sing's claim of impecuniosity but stated that an inability to satisfy a costs order is not a legitimate basis for the Commission to refuse an award of costs in favour of the Regulator. It was also pointed out that Mrs Sing had the ability to negotiate with the Regulator "to put in place a program to pay off any award of costs by instalment".
- The Regulator seeks costs in the order of $7,850.60. The Regulator advised that the costs order sought was consistent with the Uniform Civil Procedure Rules 1999 and s 132 of the Workers' Compensation and Rehabilitation Regulation 2014. Costs have been assessed under Scale "E" of the Magistrates Court scale of costs.
Mrs Sing's submissions
- Much of the respondent's submissions were not relevant to the determination to be made about whether to award costs. The only part of the submissions that was relevant involved statements made by Mrs Sing to the effect that she has no capacity to meet any order of costs made against her. She said in her submission that neither she nor her husband were working, and that they faced substantial costs of subsistence.
- It was also submitted, in effect, that the Regulator's estimate of costs was excessive and that the Regulator should not be permitted to profit from the process.
- I accept the Regulator's submission that an incapacity to pay does not constitute a legitimate basis upon which to decline to award costs to the Regulator. Mrs Sing knew well in advance of the commencement of the appeal proceedings, that if she were not successful in the appeal, costs would be awarded against her.
- I can find no reason to modify the scale of costs put forward by the Regulator. The application for costs is granted.
- The application for costs is granted.
- That the Respondent pay the Applicant's costs of and incidental to the appeal in matter WC/2017/88.
- Costs are payable and calculated in accordance with the Uniform Civil Procedure Rules 1991, as in force as at 4 June 2018 to 6 June 2018 and the reprint current from 24 November 2017 to 23 August 2018, and in accordance with s 132 of the Workers' Compensation and Rehabilitation Regulation 2014, (the reprint current from 31 August 2017 to 30 June 2018), and assessed under Scale E of the Magistrates Court scale of costs.
- That the Respondent pay costs to the Applicant as per the Schedule outlined in the Applicant's submissions filed in the Industrial Registry on 11 March 2019.
- That the amount to be paid is $7,850.60; and
- That the respondent make the payment required to be made no later than 31 July 2019, save and except for the implementation of a payment plan agreed with the Workers' Compensation Regulator no later than 28 June 2019.
- Published Case Name:
Workers' Compensation Regulator v Surila Devi Sing
- Shortened Case Name:
Workers' Compensation Regulator v Sing
 QIRC 78
29 May 2019