Nathwani v Workers' Compensation Regulator (No. 2)
[2021] QIRC 351
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- Unreported Judgment
- Nathwani v Workers' Compensation Regulator (No. 2)[2021] QIRC 351
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Nathwani v Workers' Compensation Regulator (No. 2)[2021] QIRC 351
Nathwani v Workers' Compensation Regulator (No. 2)[2021] QIRC 351
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nathwani v Workers' Compensation Regulator (No. 2) [2021] QIRC 351 |
PARTIES: | Nathwani, Saher (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | WC/2019/175 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 18 October 2021 |
DATE OF WRITTEN SUBMISSION: | Respondent's written submissions filed on 11 October 2021 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDER: | The Respondent pays the Appellant's costs fixed in the sum of $3,820.60. |
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO AND LIABILITY FOR COMPENSATION – APPEAL AGAINST REVIEW DECISION – COSTS – appeal decision in favour of Appellant – whether costs of the hearing should follow the event – costs order in favour of Appellant |
LEGISLATION: | Uniform Civil Procedure Rules 1999, sch 2, pt 2 Workers' Compensation and Rehabilitation Act 2003, s 32 and s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132 |
CASES: | Nathwani v Workers' Compensation Regulator [2021] QIRC 325 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 |
APPEARANCE: | Mr B. McMillan of Counsel directly instructed by Ms O. Steele of the Respondent. |
Reasons for Decision
Introduction
- [1]By decision dated 21 September 2021, I made an order setting aside the Respondent's decision and substituting another decision, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act'). The order was made pursuant to s 558(1)(c) of the Act.[1] I also ordered that the parties make submissions on the costs of the hearing and that unless otherwise ordered, I would make the decision about costs on the papers.
- [2]This is my decision about the costs of the hearing.
The Regulator's submissions
- [3]The Regulator submits, having regard to the decision of Davis J, President, in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) ('QNMU'),[2] that:
- the power to award the costs of the hearing comes from the Act;
- section 558(3) of the Act is limited to the costs of the hearing; and
- the Commission must give reasons for the exercise of the discretion to award costs.
- [4]There can be no dispute about the correctness of those submissions.
- [5]Section 558 of the Act 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.
- [6]In addition, QNMU is authority for the proposition that, having regard to the power to award costs under s 558 of the Act, costs ought ordinarily follow the event.[3]
- [7]The Regulator seeks an order that it pays the Appellant's costs to the extent permitted pursuant to s 132(2) of the Workers' Compensation and Rehabilitation Regulation 2014 ('the Regulation').
- [8]Section 132 of the Regulation 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 2019, part 3; and
- (c) costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, 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.
- [9]The Regulator further submits that the Appellant was successful in the appeal, has incurred costs of the hearing including for counsel who appeared at the hearing and that there is no compelling reason why costs of the hearing should not be ordered in the Appellant's favour.
- [10]Having regard to scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, the Regulator refers to the following itemised costs:
- (a)Item 8 (f) Counsel's fees first day of hearing - $1,545.00
- (b)Item 8 (g) Counsel's for [sic] subsequent day of hearing = $1,032.00
- (c)Item 10(a) Solicitor attendance with Counsel - 2 days @ $621.80 = $1,243.60
- (d)Total = $3,820.60
- [11]The Regulator seeks an order that it pays the Appellant's costs of the hearing, fixed in the amount of $3,820.60.
- [12]The Appellant made no submissions about costs.
A costs order should be made in favour of the Appellant
- [13]In my view, to do justice between the parties, an order should be made that the Regulator pays the Appellant's costs of the hearing. The Appellant was successful in prosecuting her appeal. There are no reasons as to why costs should not follow the event and therefore the Appellant should be awarded her allowable costs for hearing on 1 and 2 July 2020.
- [14]Having regard to the history of the Appellant's appeal, the itemised costs identified by the Regulator are reasonable.
Order
- [15]I make the following order:
The Respondent pays the Appellant's costs fixed in the sum of $3,820.60.