Habibi Arehjan v Workers' Compensation Regulator (No 3)
[2023] QIRC 255
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- Unreported Judgment
- Habibi Arehjan v Workers' Compensation Regulator (No 3)[2023] QIRC 255
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Habibi Arehjan v Workers' Compensation Regulator (No 3)[2023] QIRC 255
Habibi Arehjan v Workers' Compensation Regulator (No 3)[2023] QIRC 255
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Habibi Arehjan v Workers' Compensation Regulator (No 3) [2023] QIRC 255 |
PARTIES: | Habibi Arehjan, Nadia (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NOS: | WC/2019/157 WC/2020/36 WC/2020/37 |
PROCEEDINGS: | Appeals against decisions of the Workers' Compensation Regulator |
DELIVERED ON: | 5 September 2023 |
HEARING DATE: | On the papers |
MEMBER: | O'Connor VP |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEAL – WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeals against review decisions of the respondent – where commission determined appeals dismissed – where review decisions of the Respondent confirmed – where parties ordered pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 to file submissions on costs – whether costs should follow event – whether commission should exercise its discretion to award costs |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003, s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132 Industrial Relations (Tribunal) Rules 2011, r 98 Uniform Civil Procedure Rules 1999, sch 2, pt 2 |
CASES: | Arehjan v Workers' Compensation Regulator [2020] QIRC 098. Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees [2021] ICQ13 |
APPEARANCES: | Ms N. Habibi Arehjan representing herself, the Appellant. Ms H. Blattman of Counsel directly instructed by Ms A. Schultz for the Respondent. |
Reasons for Decision
- [1]Ms Nadia Habibi Arehjan ('the Appellant') filed three appeals in the Queensland Industrial Relations Commission ('the Commission'), (WC/2019/157, WC/2020/36 and WC/2020/37) against separate decisions of the Workers' Compensation Regulator ('the Regulator'). By decision of 3 July 2020 the Commission determined pursuant to r 98 of the Industrial Relations (Tribunal) Rules 2011 ('the IR Rules') that the appeals be joined and heard together.[1]
- [2]By decision of 8 August 2023 I dismissed all three appeals and confirmed the review decisions of the Respondent. The parties were ordered to file submissions on the costs of the hearing by 4.00 pm on 29 August 2023. Further, in the absence of any application to make oral submissions in respect of costs, the question of costs would be decided on any written submissions filed without further oral hearing.[2]
- [3]On 29 August 2023 the Appellant emailed the Registry attaching an excel spreadsheet of "cost breakdown of medical and hearing expenses".
- [4]The Respondent filed written submissions on costs on 29 August 2023 seeking the following:
Counsel's fees | $4,641.00 |
Attendance of Clerk | $1,124.40 |
Expert witness attendance allowance | $ 584.10 |
Total | $6,349.50 |
Power to award costs
- [5]The power of the Commission to order a party participating in litigation to pay the costs of another party is derived from statute and not the common law.
- [6]The Industrial Court of Queensland confirmed the position in respect of costs under the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act') in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2)[3] as follows:
- the power of the Commission to award costs derives from the Act and is not restricted by s 545 of the IR Act;
- the power to award costs in s 558(3) of the IR Act is limited to costs of 'the hearing' and does not include costs of the appeal'; and
- the Commission must give reasons for the exercise of discretion to award costs.
- [7]Section 558 of the WCR Act provides:
558 Powers of appeal body
- In deciding an appeal, the appeal body may-
- confirm the decision; or
- vary the decision; or
- set aside the decision and substitute another decision; or
- set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
- 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.
- Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.
- [8]The Regulator seeks an order that the Appellant pay its costs to the extent permitted pursuant to s 132(2) of the Workers’ Compensation and Rehabilitation Regulation 2014 ('the WCR Regulation').
- [9]Section 132 of the WCR Regulation provides:
132 Costs-proceeding before industrial magistrate or industrial commission
- 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.
- If the magistrate or commission awards costs-
- 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
- costs in relation to witnesses’ fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and
- costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.
- 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-
- the work involved; or
- the importance, difficulty or complexity of the matter to which the proceeding relates.
- [10]The Respondent submits that as the Appellant was unsuccessful in the substantive appeals, as a general rule, costs follow the event.[4]
- [11]In reliance on the decision in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[5] the Respondent submits that the Commission should exercise its discretion to order that the Appellant pay the Respondent's costs of the hearing.
- [12]The Respondent further submits that as became evident during the hearing, the Appellant was in receipt of consistent income and maintained employment in the engineering field since her injuries.[6]
Consideration
- [13]The Respondent is seeking costs in reliance on s 558 of the WCR Act.
- [14]The question which I am now called on to consider is whether a discretion to award costs has been enlivened and if satisfied that it has, whether the discretion ought to be exercised.
- [15]The award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.[7]
- [16]The Regulator was successful in defending its position on appeal before the Commission. The discretion to award costs has been enlivened. No grounds have been advanced by the Appellant to persuade me not to exercise my discretion. There is no reason why the Appellant should not pay the Regulator's costs in respect of WC/2019/157, WC/2020/36 and WC/2020/37.
- [17]Accepting the correctness of the Respondent's calculations, the costs of the hearing have been quantified in accordance with the Magistrates Court Scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2 and fixed in the sum of $6,349.50. Having regard to the nature of the appeals before the Commission, the itemised costs sought by the Regulator are in my view reasonable.
- [18]Accordingly, I make the following order:
- That the Appellant pay the Respondent's cost fixed in the sum of $6,349.50 within 28 days of the date of this order.
Footnotes
[1] Arehjan v Workers' Compensation Regulator [2020] QIRC 098.
[2] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230.
[3] [2021] ICQ 13.
[4] Oshlack v Richmond River Council (1998) 193 CLR 72, [97].
[5] [2021] ICQ13.
[6] Respondent's submissions on costs filed 29 August 2023, [9].
[7] Latoudis v Casey (1990) 170 CLR 534 at 543.