Kujawa v Workers' Compensation Regulator
[2020] QIRC 179
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- Unreported Judgment
- Kujawa v Workers' Compensation Regulator[2020] QIRC 179
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Kujawa v Workers' Compensation Regulator[2020] QIRC 179
Kujawa v Workers' Compensation Regulator[2020] QIRC 179
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kujawa v Workers' Compensation Regulator [2020] QIRC 179 |
PARTIES: | Kujawa, Katarzyna Kasia (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2019/129 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 21 October 2020 |
MEMBER: HEARD AT: | Knight IC On the Papers |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where appeal conceded by Regulator prior to hearing – where parties unable to agree on costs – whether costs order should be made. |
LEGISLATION: CASES: | Industrial Relations Act 2016 Industrial Relations (Tribunals) Rules 2011 Workers' Compensation and Rehabilitation Act 2003 Workers' Compensation and Rehabilitation Regulation 2014 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 104. Cope v Workers' Compensation Regulator [2019] QIRC 166 Davidson v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 008 Deceased Estate of Barry James Willis v Workers' Compensation Regulator (No. 2) [2020] QIRC 094 Harris v Caladine (1991) 172 CLR 84 Hooyer v Workers' Compensation Regulator [2020] QIRC 163 Jason Canton v Workers' Compensation Regulator [2019] QIRC 145 Kim v Workers' Compensation Regulator [2019] ICQ 14 Latoudis v Casey (1990) 170 CLR 534 Mimica v Q-Comp (2007) 184 QGIG 31 Northern Territory v Sangare (2019) 265 CLR 164 Panas v Q-COMP [2011] QIRC 84 Q-COMP v Australian Language Schools Pty Ltd (No. 2) [2010] ICQ 42 Queensland Bulk Water Supply Authority v Workers' Compensation Regulator [2019] QIRC 054 Simon Blackwood (Workers' Compensation Regulator) v Egan [2014] ICQ 020 Trimble v Q-COMP AND State of Queensland (Queensland Audit Office) [2013] QIRC 135 Truffet v Workers' Compensation Regulator [2020] ICQ 013 |
Verhagen v Q-COMP (2008) 189 QGIG 542 Workers' Compensation Regulator v Michelle Debra Schepis [2017] QIRC 021 |
Reasons for Decision
- [1]By consent order, I allowed an appeal between Ms Katarzyna Kujawa ("the Appellant") and the Workers' Compensation Regulator ("the Regulator"). Costs were to be agreed by the parties and, failing agreement, there was liberty to apply.
- [2]The parties were unable to reach agreement.
- [3]Thus the question for decision is whether costs should be ordered in favour of the Appellant where the Regulator conceded her appeal prior to the actual hearing of the matter.
Legislation and Principles
- [4]While s 545 of the Industrial Relations Act 2016 ("the IR Act") sets out a general power to award costs,[1] s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 ("the WCR Act") provides that costs of the hearing are at the discretion of the appeal body (here, the Commission),[2] except to the extent provided under a regulation.
- [5]The Workers' Compensation and Rehabilitation Regulation 2014 ("the Regulation") relevantly provides:
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.[3]
- [6]The general power to award costs under s 545 of the IR Act must give way to the particular provisions of the WCR Act and the Regulation.[4]
- [7]
- [8]There is an abundance of cases which support the view that the Commission, in workers' compensation matters, enjoys an unfettered discretion to award costs.[7]
- [9]But a grant of discretion to make an order for costs must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[8]
- [10]
Background and Chronology
- [11]What led to the Appellant's appeal was a review decision of the Regulator on 18 June 2019 which affirmed an earlier decision of WorkCover to reject her application for compensation for a secondary psychiatric injury.
- [12]The review decision evinces that the Regulator was not satisfied the Appellant's employment was the major significant contributing factor in the onset of her psychological injury. This arose in circumstances where there was some apparent uncertainty within the medical evidence as to whether the Appellant's psychological injury could be attributed to a work-related aggravation or a pre-existing personal back injury.[11]
- [13]The Appellant lodged her appeal on 16 July 2019.
- [14]It is helpful to set out a chronology of the relevant events after this time:[12]
Date | Event |
16/07/2019 | Appeal filed |
16/07/2019 | Directions Order issued |
23/09/2019 | Appellant's Statement of Facts and Contentions filed |
11/11/2019 | Regulator's Statement of Facts and Contentions filed |
27/11/2019 | Appellant provides outline of evidence and list of witnesses, being:
|
16/12/2019 | The Regulator provides a copy of Ms Little's medical notes in so far as they related to Ms Kujawa. Regulator provides outline of evidence and list of witnesses, being:
|
09/03/2020 | Conference is held pursuant to s 552A of the Act |
03/06/2020 | Appellant provides Regulator with disclosure of report of Dr Mark Whittington of 2 June 2020 and report Dr Timothy McDonald of 3 June 2020 |
04/06/2020 | Appellant's solicitors disclose record of conference (dated 7 April 2020) with Ms Christina Little, psychologist |
12/06/2020 | Mention of appeal set for 15 June 2020 – adjourned at request of the parties until 14 July 2020 |
26/06/2020 | Regulator makes a decision not to defend the appeal and offers to compromise by way of consent orders on the basis that each party bears their own costs |
16/07/2020 | Consent Order made substituting a decision that the Appellant's psychiatric injury is an injury pursuant to the Act and an order that costs be agreed between the parties |
- [15]The Directions Order dated 16 July 2019 required the Appellant to serve any further expert reports to be relied on in respect of the proceedings by 26 November 2019.
Consideration
- [16]The review decision considered inter alia Dr Whittington's report dated 20 November 2018 and Ms Little's work capacity certificate dated 12 November 2018. As best I can tell, there was no evidence provided by Dr MacDonald on file.[13]
- [17]Had the matter progressed to an actual hearing, determination of the appeal would have potentially turned on the evidence of three expert witnesses:
- Ms Christiana Little, psychologist;
- Dr Mark Whittington, psychiatrist; and
- Dr Tim MacDonald, psychiatrist.
- [18]Before the Commission, when the parties filed their statements of facts and contentions and attended the conference, they did so furnished with the same, or largely the same, medical evidence as was before the review officer.
- [19]The Appellant makes the somewhat contradictory assertion that the Regulator 'has conceded the appeal after receiving further evidence from Dr McDonald [sic] and Ms Little', before then making the contention that their evidence 'was not new'.
- [20]At the conference on 9 March 2020, Counsel for the Regulator made a submission that the report of Dr Whittington dated 20 November 2018 was insufficient in that it was not based on the Appellant's complete psychiatric history as set out in her medical records.[14]
- [21]At the request of the Appellant's representatives, Dr Whittington provided an 'updated assessment and report' dated 2 June 2020 and Dr MacDonald provided a psychiatric report dated 3 June 2020. The reports were disclosed to the Regulator on 3 June 2020, six months after the final dates the Appellant was expected to serve expert reports on the Regulator.
- [22]The Regulator maintains Dr MacDonald's report dated 2 June 2020 was 'the first opinion from a psychiatrist based on an accurate history' in which it was concluded the work-related physical injury was 'the causative factor' and one 'significantly contributing to her psychiatric injury'.[15]
- [23]It was not until 4 June 2020 that the Appellant further disclosed a 'diary note of teleconference' by Ms Little (which bears the date 7 April 2020, signed 13 May 2020) despite having received it weeks earlier on 14 May 2020.
- [24]Altogether, I accept the updated reports and conference notes constituted 'new and critical evidence', as the Regulator puts it, which catalysed the concession of the appeal. The new material satisfied the Regulator that the Appellant's psychiatric injury met the definition under the WCR Act in circumstances where the previous medical reports had not.
- [25]It would be a different story if the Regulator possessed the reports and conference notes at the commencement of the appeal or in the lead up to the conference, yet blithely or obstinately maintained its defence thereafter.
- [26]The Appellant asserts that the Regulator, when making the review decision, should have set the decision aside and returned it to WorkCover with a direction that the evidence of Ms Little and Dr MacDonald be clarified.[16]
- [27]What the Appellant thinks the review unit of the Regulator should have done, with respect, is entirely beside the point. The appeal is a hearing de novo. The issue is the same but the parties in a sense 'commence the application again'; that is, the Commission starts afresh.[17] The 'reasoning, determinations, evidence and/or allegations' of the review decision are irrelevant to the appeal.[18]
- [28]The Appellant complains the Regulator 'has enjoyed the fruits of [her] further investigations, at her considerable cost'. Yet, in my view, it is Appellant who has enjoyed the fruits of her own further investigations: she has essentially won her appeal.
- [29]The Appellant bore the onus of proving, on the balance of probabilities, that her injury fell within the definition in s 32 of the WCR Act.[19] She discharged this onus by persuading the Regulator through the production of further evidence that her claim should be one for acceptance.
- [30]Until the Appellant did this, having filed an appeal notice at the Commission, the Regulator was obliged to 'manage'[20] – in other words, defend – the appeal (i.e. by complying with the Directions Order, filing a statement of facts and contentions[21] and attending the conference)[22] relying on the evidence before it.
- [31]In Panas v Q-COMP[23] an appeal settled after further evidence was supplied by the Appellant during the first conference and, later, sourced from the employer. The Appellant had already incurred the significant cost of preparatory work. She urged the Commission not to depart from the general rule that 'costs follow the event'.
- [32]For its part, Q-COMP said it was under a statutory obligation to defend the appeal it had conceded well before the hearing and that the cost of the investigations which resulted in the concession had, in fact, been incurred by Q-COMP. That is, Q-COMP had itself brought about an outcome significantly beneficial to the Appellant at its own expense.
- [33]DP Bloomfield refused the application for costs reasoning inter alia that Q-COMP conceded the appeal at a very early stage in the proceedings and did not cause unnecessary costs to be incurred by the Appellant.[24] His Honour made an important point worth reproducing:
s. 552A Conferences are conducted for the primary purpose of trying to resolve appeals... without the need to take them to a full hearing, with the time and expense that that involves (the secondary purpose is to try to narrow the issues to be aired during any trial by facilitating a greater understanding between the respective parties of the nature of each other's cases and identifying, and hopefully narrowing, the number of witnesses called as well as the matters they need to be taken to...[25]
- [34]In my opinion, and also having regard to the Appellant's delay in the serving of expert reports on the Regulator, it would be inappropriate to order the Regulator to compensate an Appellant (or vice versa) for the cost of participating in the preliminary stages of an appeal, the intended purpose of which is to encourage conciliation (if at all possible) or, at the very least, advance a greater understanding between the parties and the Commission as to the issues in contention, and to manage the logistics of a future hearing.
- [35]It is clear the appeal that forms the basis of this costs' decision was resolved in large part by means of the conference, disclosure, the filing of statements of facts and contentions and, eventually, the serving of more detailed expert medical reports.
- [36]Both parties referred the Commission to the High Court case of Latoudis v Casey which enunciates the rationale of an award for costs. Mason CJ held that, as a 'fundamental principle', courts exercising discretion to award or refuse costs should look at the matter primarily from the perspective of the defendant, reiterating that:
... 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.[26]
- [37]His Honour continued:
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.[27]
- [38]The function of an order for costs is compensatory, not punitive:
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... Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party.[28]
- [39]The thrust of the Appellant's argument is as follows. Since the Regulator, in defending the appeal, forced her to incur the cost of litigating what was ultimately (and, it seems in her estimation, always) a successful claim, then, consonant with the compensatory principles which underpin an order for costs, it is just and reasonable that she be indemnified as the successful party.
- [40]Although I consider there to be some force to this submission more generally, the difficulty I have is the Appellant's success in this matter was not guaranteed. One's appeal is only as meritorious as the evidence which supports it, and, until she provided further evidence, the Regulator was entitled to defend the review decision.
- [41]What is more, on my reading, much of the case law contemplates costs orders made in favour of defendants who become, through no fault of their own, embroiled in litigation from which they ultimately emerge successful. Here, on the contrary, it is the Appellant who, in appealing the review decision, instigated against the Regulator litigation it was then obliged to defend. And as mentioned before, being a hearing de novo, it was thenceforth for the Appellant to pursue the appeal.
- [42]The Regulator is not expected to embark upon some roving expedition (at its own expense) in search of further evidence to advance a claimant's workers' compensation appeal against it. The Appellant bears that onus.
- [43]For what it is worth, I might add that the litigation here was in its infancy. This is not a case where the Appellant was put to the cost of all or part of a hearing only for the Regulator to concede the appeal following, say, the implosion of its witnesses' credibility under cross-examination. Nor did the Regulator concede, as it were, on the steps of the courthouse.
- [44]This case, rather, is an example of the prudent avoidance of unnecessary litigation by reason of an Appellant who, over time, proactively strengthened her case with supplementary evidence and a Regulator which fairly conceded the moment it was reasonable to do so.
Order
- [45]For the foregoing reasons, I decline to exercise my discretion to order the Regulator to pay the costs of the Appellant.
- [46]Each party bears its own costs.
Footnotes
[1] See also Kim v Workers' Compensation Regulator [2019] ICQ 14, 16 [53] ('Kim').
[2] Workers' Compensation and Rehabilitation Act 2003 s 548A.
[3] r 132.
[4] Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1, 11 [21] (Heydon J), 19 [46] (Crennan, Kiefel and Bell JJ).
[5] Kim (n 2) 17 [56]; Q-COMP v Australian Language Schools Pty Ltd (No. 2) [2010] ICQ 42, [4] ('Australian Language Schools').
[6] Simon Blackwood (Workers' Compensation Regulator) v Egan [2014] ICQ 020, 4.
[7] Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 104; Cope v Workers' Compensation Regulator [2019] QIRC 166; Jason Canton v Workers' Compensation Regulator [2019] QIRC 145, 9-10 [29]-[33]; Queensland Bulk Water Supply Authority v Workers' Compensation Regulator [2019] QIRC 054; Workers' Compensation Regulator v Michelle Debra Schepis [2017] QIRC 021.
[8] Northern Territory v Sangare (2019) 265 CLR 164, 172 [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ), cited in Deceased Estate of Barry James Willis v Workers' Compensation Regulator (No. 2) [2020] QIRC 094, 4 [14].
[9] Australian Language Schools (n 6) [4]; Davidson v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 008, 7 [24]; Verhagen v Q-COMP (2008) 189 QGIG 542, 546.
[10] Truffet v Workers' Compensation Regulator [2020] ICQ 013, 8 [25].
[11] Review decision of the Workers' Compensation Regulator dated 18 June 2019, 7.
[12] my emphasis.
[13] Review decision of the Workers' Compensation Regulator dated 18 June 2019, 4.
[14] Transcript of Proceedings, Kujawa v Workers' Compensation Regulator (Queensland Industrial Relations Commission, WC/2019/129, McLennan IC, 9 March 2020) 6.
[15] Written Submissions of the Regulator filed 30 September 2020, 2 [12].
[16] Workers' Compensation and Rehabilitation Act 2003 s 545(1)(d).
[17] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, 7-11 [24]-[39].
[18] Jason Canton v Workers' Compensation Regulator [2019] QIRC 145, 8 [24], citing Trimble v Q-COMP AND State of Queensland (Queensland Audit Office) [2013] QIRC 135, 5 [39].
[19] Mimica v Q-Comp (2007) 184 QGIG 31, 2.
[20] Workers' Compensation and Rehabilitation Act 2003 s 327(1)(f).
[21] Industrial Relations (Tribunals) Rules 2011 rr 41, 45.
[22] Workers' Compensation and Rehabilitation Act 2003 s 552A.
[23] [2011] QIRC 84.
[24] Ibid 3-4.
[25] Ibid 3.
[26] Latoudis v Casey (1990) 170 CLR 534, 542-543.
[27] Ibid 543.
[28] Ibid 567 (McHugh J).