The University of Queensland v Workers' Compensation Regulator (No 2)
[2022] QIRC 245
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- Unreported Judgment
- The University of Queensland v Workers' Compensation Regulator (No 2)[2022] QIRC 245
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The University of Queensland v Workers' Compensation Regulator (No 2)[2022] QIRC 245
The University of Queensland v Workers' Compensation Regulator (No 2)[2022] QIRC 245
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | The University of Queensland v Workers' Compensation Regulator (No 2) [2022] QIRC 245 |
PARTIES: | The University of Queensland (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2021/97 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 23 June 2022 |
HEARING DATE: | On the papers |
MEMBER: | O'Connor VP |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPEAL – COSTS – where application brought to determine whether out of time application should proceed to hearing – where order made that matter should be allowed to proceed – where submissions on costs ordered – whether cancellation fee of psychiatrists can be paid through costs application – whether order can be made – whether just and reasonable in the circumstances to exercise discretion |
LEGISLATION: | Health Practitioner Regulation National Law (Queensland) 2009 (Qld) s 52, s 53 Uniform Civil Procedure (Fees) Regulation 2019 (Qld) r 25, r 27 Uniform Civil Procedure Rules 1999 (Qld) sch 3 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 558 Workers' Compensation and Rehabilitation Regulation 2003 (Qld) s 113 Workers' Compensation and Rehabilitation Regulation 2014 (Qld) r 132 |
CASES: | Latoudis v Casey (1990) 170 CLR 534 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 The University of Queensland v Workers' Compensation Regulator [2022] QIRC 131 |
APPEARANCES: | Costs application dealt with on the papers |
Reasons for Decision
- [1]On 6 April 2022 I published my reasons for decision in The University of Queensland v Workers' Compensation Regulator,[1] ('the original decision').
- [2]In the original decision I dismissed the Application made by The University of Queensland. The Regulator successfully defended the appeal and in so doing has incurred costs, including for counsel who appeared in the appeal.
- [3]The Regulator seeks an order pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') for the following:
(a)Item 8(f) Counsel's fees of first day of hearing - $1,545.00
(b)Item 10(b) Clerk attendance with Counsel – 1 day$ 281.80
(c)Lay witness fee – Chantel Nicholson$ 84.45
(d)Cancellation fee – expert witness Dr J Valappil$1,810.60
TOTAL$3,721.85
- [4]The Appellant does not take issue with an order that the Appellant pay the Respondent's costs of the hearing; nor does the Appellant take issue with the Respondent's costs being fixed; nor in respect of the costs set out in paragraph 10(a)-(c) of the Respondent's submissions. However, the Appellant does take issue with the amount referred to in paragraph 10(d) of the Respondent's submissions, namely, the professional fee of Dr Valappil, a consultant psychiatrist.
- [5]It is not in dispute that Dr Valappil was scheduled to give evidence at the hearing by telephone. At the hearing, the Regulator informed the Commission that Dr Valappil was being called solely because agreement could not be reached that the doctor's report be tendered by consent.[2] However, in the course of the hearing, the Appellant subsequently consented to the report being tendered. Consequently Dr Valappil's attendance was not required.
- [6]Costs before the Commission are calculated in accordance with s 558(3) of the WCR Act, Schedule 3 Scale of Costs - Magistrates Court, Scale E of the Uniform Civil Procedure Rules 1999 (Qld) ('the UCPR') and s 113 of the Workers' Compensation and Rehabilitation Regulation 2003 (Qld).
- [7]Section 558(3) provides:
558 Powers of appeal body
…
- (3)Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.
- [8]Regulation 132 of the WC 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]Section 558 of the WCR Act and r 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('the WC Regulation') grants the Commission the statutory power to award costs.
- [10]The 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.[3]
- [11]
By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs.
- [12]The Appellant relies on r 25(1) of the Uniform Civil Procedure (Fees) Regulation 2019. That regulation relevantly provides:
The amount of the attendance allowance that is to be paid to a professional witness or an expert for each day of necessary absence from the person's place of employment, practice or residence to attend court is $259.30.[5]
- [13]Pursuant to r 25(2)(a) of the UCPR Regulations, the allowance is reduced to $97.35 for an absence of 3 hours or less.
- [14]The Appellant argues that Dr Valappil was scheduled to give evidence at the hearing by telephone and, as a consequence, it would not have been necessary for him to absent himself, '…from the person's place of employment, practice or residence to attend court'.[6]
- [15]The Appellant submits that it is not appropriate for any allowance to be made for Dr Valappil because it was not necessary for him to absent himself from his place of practice.
- [16]I do not accept that submission. Attendance before the Court does not require physical attendance. Consistent with PD 8 of 2021,[7] an expert witness may attend to give evidence by telephone or by video link. An expert witness when attending the Court must necessarily absent themselves from their practice in order to give evidence. That absence from their practice need not necessarily involve a physical absence from their premises.
- [17]The Regulator argues that it is entitled to costs for the professional witness fee pursuant to r 132(2)(b) of the WCR Regulation and r 27(1)-(2) of the UCPR (Fees) Regulation due to the cancellation of the attendance of Dr Valappil.
- [18]Regulation 27 provides as follows:
27 When additional amount may be paid
(1) If a registrar considers it is reasonable for an additional amount to be paid to a relevant person under section 24, 25 or 26 because of special circumstances, the registrar may approve the payment of an additional reasonable amount.
(2) Without limiting subsection (1), it is a special circumstance that a relevant person who is a doctor is a specialist health practitioner under the Health Practitioner Regulation National Law.
- [19]Regulation 27 permits that an additional amount may be paid to a relevant person under r 25 because of special circumstances. It is a special circumstance that a relevant person is a specialist health practitioner. It is not in dispute that Dr Valappil as a Consultant Psychiatrist is a specialist health practitioner under the Health Practitioner Regulation National Law.[8]
- [20]The sole purpose for requiring the attendance of Dr Valappil was as a consequence of the Appellant's refusal to grant consent for his report to be tendered in the proceedings before the Commission.
- [21]The purpose of an award of costs was expressed by the High Court in Latoudis v Casey,[9] where Mason CJ wrote:
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.[10]
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.[11]
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 mad0 to punish the unsuccessful party. Its function is compensatory.[12]
- [22]The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission. The late concession by the Appellant caused the fee to be incurred. In those circumstances, and having regard to the compensatory nature of costs, I consider that it is just and reasonable for the Appellant to be required to pay the cancellation fee in addition to the other claimed costs.
Order
1. The Appellant pay the Respondent's costs of the hearing fixed in the sum of $3,721.85.
Footnotes
[1] [2022] QIRC 131.
[2] TR 1-5, L5.
[3] Northern Territory v Sangare (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ).
[4] (1998) 193 CLR 72.
[5] Uniform Civil Procedure (Fees) Regulation 2019 (Qld) r 25.
[6] Appellant's Submissions on costs filed 22 April 2022, [9].
[7] Queensland Industrial Relations Commission, Practice Direction 8 of 2021, 24 March 2021.
[8] Health Practitioner Regulation National Law (Queensland) 2009 (Qld) ss 52-3.
[9] Latoudis v Casey (1990) 170 CLR 534, 543.
[10] Ibid.
[11] Ibid.
[12] Ibid 567.