RW & G Johnston Pty Ltd v Workers Compensation Regulator
[2023] QIRC 156
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- Unreported Judgment
- RW & G Johnston Pty Ltd v Workers Compensation Regulator[2023] QIRC 156
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RW & G Johnston Pty Ltd v Workers Compensation Regulator[2023] QIRC 156
RW & G Johnston Pty Ltd v Workers Compensation Regulator[2023] QIRC 156
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | RW & G Johnston Pty Ltd v Workers Compensation Regulator [2023] QIRC 156 |
PARTIES: | RW & G Johnston Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | WC/2021/146 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 30 May 2023 |
HEARING DATES: | On the papers |
DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 12 April 2023 and Appellant's written submissions filed on 14 April 2023 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDERS: | The Appellant's application for costs, arising out of the Commission's order to vacate the hearing dates of 28, 29, 30 and 31 March 2023, is dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Appellant employed worker who successfully made an application for workers' compensation – appeal by employer, pursuant to the Workers' Compensation and Rehabilitation Act 2003, against decision of the Workers' Compensation Regulator which confirmed an earlier decision of WorkCover Queensland to accept the worker's application for workers' compensation – trial dates set for 28, 29, 30 and 31 March 2023 – application by Respondent on 23 March 2023 to vacate trial dates following late disclosure of expert reports, outlines of evidence and a further amended list of witnesses by the Appellant to the Respondent on 21 March 2023 – application granted – Appellant made application for costs thrown away in respect of the vacated hearing dates – Appellant's application for costs reserved pending receipt of written submissions from the parties – whether Commission has power to award costs pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 or s 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 – if the Commission does have power to award costs, whether the Commission's discretion to award costs should be exercised in favour of the Appellant – the Commission has power to award costs, in the present circumstances, pursuant to s 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 – the Commission's discretion to award costs in favour of the Appellant should not be exercised because it was the Appellant's late disclosure of material that caused the Respondent to make its meritorious application to vacate the trial dates – Appellant's application for costs thrown away dismissed |
LEGISLATION: | Industrial Relations Act 2016, s 545 Workers' Compensation and Rehabilitation Act 2003, s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132 |
CASES: | Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 |
APPEARANCES: | Mr J.E. Murdoch KC and Mr D. Nguyen of Counsel, instructed by Mr P. Everingham of Everingham Lawyers, for the Appellant. Ms L.M. Willson of Counsel directly instructed by Ms C-L. Godfrey of the Respondent. |
Reasons for Decision
Introduction
- [1]RW & G Johnston Pty Ltd ('the Appellant') has appealed against a decision of the Workers' Compensation Regulator ('the Respondent') which confirmed an earlier decision of WorkCover Queensland to accept an application for workers' compensation, made pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), made by a former employee of the Appellant in respect of a psychiatric injury. The Appellant contends that its former employee did not suffer an injury within the meaning of the Act.
- [2]The Appellant's appeal was scheduled to be heard before me on 28, 29, 30 and 31 March 2023. However, on the afternoon of 21 March 2023, the Appellant disclosed three reports to the Respondent, two of which were reports of investigators and the other being a report from a Chartered Accountant. Outlines of evidence of the authors of those reports were also disclosed to the Respondent at that time, together with a further amended list of witnesses.
- [3]By email sent from the Respondent to the Industrial Registrar on 23 March 2023, the Respondent requested that the hearing dates be vacated because of the late disclosure of material from the Appellant. The Respondent's request was, for all practical purposes, an application in existing proceedings to vacate the hearing dates because of the late disclosure of material from the Appellant.
- [4]After hearing from the parties on 24 March 2023, I ordered that the hearing dates be vacated. The reasons I gave for vacating the hearing dates were:
- the material provided by the Appellant was provided five business days before the scheduled commencement of the Appellant's appeal; and
- my acceptance of the Respondent's submissions that, in light of that material, it needed to confer with certain witnesses it had identified, including medical practitioners and that, in a practical sense, it would not have time to confer with those witnesses prior to the commencement of the appeal.[1]
- [5]The Appellant, in light of the order I made, made an application for its costs thrown away.
- [6]I subsequently directed that the parties file and serve written submissions in respect of the Appellant's application for costs. In making that direction, I identified two issues to be addressed, namely:
- whether, having regard to when I ordered the vacation of the hearing dates, the Commission has power to exercise discretion to award costs to the Appellant; and, if so
- whether, having regard to the circumstances of the case, I should exercise that discretion in favour of the Appellant, to make an order that the Respondent pays the Appellant's costs thrown away.[2]
- [7]For the reasons that follow, I am of the view that the Commission does have power to award the costs thrown away by the Appellant, having regard to when I ordered the vacation of the hearing dates, but that the circumstances are not such that the costs order should be made in favour of the Appellant.
The parties' submissions
- [8]The Respondent submits that:
- by virtue of s 558(3) of the Act and in reliance on the decision of Davis J, President of the Industrial Court of Queensland in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2)[3] ('QNMU') about s 558(3) of the Act, the power of the Commission to award costs is limited to the costs of the hearing after the hearing of an appeal made pursuant to ch 13, pt 3, div 1 of the Act; and because no hearing has taken place, the Commission has no power, pursuant to s 558(3) of the Act, to make an order for costs as sought by the Appellant;
- section 545 of the Industrial Relations Act 2016 is not a source of power for the Commission to award costs in respect of appeals made pursuant to ch 13, pt 3, div 1 of the Act, or if it is, that power can only be enlivened in the limited circumstances prescribed in that provision and the circumstances of the present case do not trigger that power; and
- if the Commission does have discretion to award the Appellant's costs in respect of the vacated hearing dates, then the discretion should not be exercised in favour of the Appellant because the delay in obtaining and disclosing the material that led to the vacation of the hearing dates was caused by the Appellant.
- [9]The Appellant submits that the costs to vacate the assigned hearing dates are quintessentially part of the costs of the hearing because costs are necessarily incurred on the legitimate expectation that the hearing will proceed on the dates fixed.
- [10]In the alternative, the Appellant submits that, by virtue of my decision in Wicks v Workers' Compensation Regulator (No. 2)[4] ('Wicks'), s 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 confers discretion on the Commission to make an order that the Respondent pays its costs thrown away.
- [11]The Appellant relevantly submits that if the Commission does have discretion to award costs in its favour, in respect of the vacation of the hearing dates, it should do so because:
- the Appellant has consistently challenged the genuineness and authenticity of its former employee's claims, the reports it has disclosed go to the further substantiation of the Appellant's contentions, and the Respondent had a week to put that material to the former employee the subject of the Appellant's appeal; and
- no prejudice arose to the Respondent from the late disclosure of the reports to the Respondent given that the reports go to a narrow aspect of the case, namely, whether the former employee involved has been back in the workforce while continuing to claim workers' compensation benefits.
Does the Commission have power to award the Appellant its costs arising out of the vacation of the hearing dates?
- [12]It is now beyond contention that s 558(3) of the Act only confers discretion on the Commission to award the costs of the hearing of an appeal brought under ch 13, pt 3, div 1 of the Act, namely, the costs incurred in respect of the hearing of the appeal itself.[5] In my view, on the proper construction of s 558(3) of the Act, that provision precludes the Commission having discretion to award costs in respect of the hearing of the proceeding, albeit relevant to the appeal, that takes place some days before the commencement of the actual hearing of the appeal. For these reasons, I reject the Appellant's submission that the costs to vacate the assigned hearing dates are quintessentially part of the costs of the hearing because they are costs that are necessarily incurred on the legitimate expectation that the hearing will proceed on the dates fixed.
- [13]Furthermore, it is also my view that it is clearly established that s 545 of the Industrial Relations Act 2016 is not a source of power to award costs in respect of any aspect of an appeal under ch 13, pt 3, div 1 of the Act.[6]
- [14]However, I continue to adhere to the view I expressed in Wicks,[7] being that s 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 confers discretion on the Commission to make an order for costs in respect of an application in existing proceedings brought in respect of an appeal made pursuant to ch 13, pt 3, div 1 of the Act. As the Appellant submitted, the decision in QNMU was concerned with the construction of s 558(3) of the Act and, for that reason, the decision in QNMU did not expressly, or by necessary implication, overrule the decision in Wicks.
- [15]For the reasons given earlier, the request made by the Respondent, in its email to the Industrial Registrar sent on 23 March 2023 to adjourn the Appellant's appeal to be heard on 28, 29, 30 and 31 March 2023, was, for all practical purposes, an application in existing proceedings to adjourn the hearing dates.
- [16]For these reasons, my view is that the Commission does have power to make an order for the costs thrown away by the Appellant arising out of the vacation of the hearing dates.
Should the Appellant be awarded its costs thrown away?
- [17]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]
- [18]It is not disputed by the Appellant that the three reports disclosed to the Respondent, which prompted the Respondent to apply for the vacation of the hearing dates of the Appellant's appeal, were not disclosed by the Appellant to the Respondent until 4.27 pm on 21 March 2023. As I stated in my reasons for decision given on 24 March 2023, when I accepted the Respondent's application to vacate the hearing dates:
The material provided by the appellant was provided late. In practical terms that was five business days before the commencement of the hearing. I accept the need for the Workers’ Compensation Regulator to confer with the witnesses it has identified. I also accept as a matter of practical experience and common sense it may be difficult to confer with those witnesses in the time available - in the time that was available between Tuesday of this week - sorry, between Tuesday or Wednesday of this week and Tuesday of next week: a difficulty particularly accentuated in relation to conferring with medical practitioners.
The regulator does not represent the injured in this matter. Its position in the appeal is to resist the appeal against the review - against its review decision - in the hearing de novo. As the regulator states in its correspondence to the appellant, its position in relation to the appeal may change in light of the late disclosed material from the appellant, and arising out of the conferences the regulator will conduct with the witnesses it has identified.[9]
- [19]As I also stated in those reasons, I did not suggest or draw the inference that the Appellant had been dilatory in its preparation for the appeal but that its recent disclosure of material prompted the request (application) by the Respondent for the adjournment.[10]
- [20]Despite this last view, it is undeniable that the real reason for the vacation of the hearing dates was the late disclosure of material to the Respondent by the Appellant. The Respondent's application to vacate the hearing dates was made on meritorious grounds.
- [21]For these reasons, the interests of justice do not compel the Commission exercising its discretion such that the Appellant should be awarded the costs that it did throw away arising out of the vacation of the hearing dates brought about by the order I made on 24 March 2023.
Conclusion
- [22]For the reasons I have given, I dismiss the Appellant's application for an order that the Respondent pay its costs thrown away in respect of the order I made on 24 March 2023 to vacate the hearing dates of the Appellant's appeal.
Order
- [23]I make the following order:
The Appellant's application for costs, arising out of the Commission's order to vacate the hearing dates of 28, 29, 30 and 31 March 2023, is dismissed.
Footnotes
[1] T 1-6, ll 17-31.
[2] T 1-7, ll 6-11.
[3] [2021] ICQ 13 ('QNMU').
[4] [2021] QIRC 112 ('Wicks').
[5] QNMU (n 3), [19]-[26] and [29]-[30] (Davis J, President) and Wicks (n 4) [36]-[58] (Deputy President Merrell).
[6] QNMU (n 3), [27]-[28] and Wicks (n 4) [20]-[34] (Deputy President Merrell).
[7] Wicks (n 4) [59]-[75] (Deputy President Merrell).
[8] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
[9] T 1-6, ll 17-31.
[10] T 1-6, ll 33-35.