Grace v Workers' Compensation Regulator (No. 2)
[2023] QIRC 287
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- Unreported Judgment
- Grace v Workers' Compensation Regulator (No. 2)[2023] QIRC 287
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Grace v Workers' Compensation Regulator (No. 2)[2023] QIRC 287
Grace v Workers' Compensation Regulator (No. 2)[2023] QIRC 287
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Grace v Workers' Compensation Regulator (No. 2) [2023] QIRC 287 |
PARTIES: | Grace, Julie Elizabeth (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | WC/2018/229 |
PROCEEDING: | Appeal against decision of Workers' Compensation Regulator |
DELIVERED ON: | 4 October 2023 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | The Respondent pay the Appellant's costs of the hearing 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: | Industrial Relations Act 2016 (Qld), s 545 Uniform Civil Procedure (Fees) Regulation 2019 (Qld) Uniform Civil Procedure Rules 1999 (Qld), sch 2 pt 2 scale C Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11, 32 and 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld), r 132 |
CASES: | Nathwani v Workers' Compensation Regulator (No 2) [2021] QIRC 351 Pritchard v Q-Comp [2006] ICQ 017 The University of Queensland v Workers' Compensation Regulator (No 2) [2022] QIRC 245 Truffet v Workers' Compensation Regulator [2020] ICQ 013 Workers' Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 013 |
Reasons for Decision
- [1]In a decision dated 20 August 2021, an order was made setting aside the Respondent's decision and substituting another decision ('the substantive decision') that the Appellant suffered an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act').
- [2]In the substantive decision a further order was made that the parties would be heard on costs.
Legislative framework
- [3]Section 558 of the WCR Act provides:
- 558Powers 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.
- [4]Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('the Regulation') provides:
- 132Costs—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.
- [5]Section 558(3) of the WCR Act and s 132 of the Regulation confers the Commission with the power to award costs.
Appellant's submissions
- [6]The Appellant submits that the general rule in these matters is that costs ought 'follow the event'.[1]
- [7]The Appellant refers to the issues traversed in the substantive decision and notes that as the Appellant was wholly successful in the appeal, there are no factual nuance or consideration particular to the present case that would warrant departing from the ordinary course that costs should follow the event.
- [8]The Appellant had her counsel's and solicitor's costs assessed on the standard basis by reference to Schedule 2, Part 2, Scale C of the Uniform Civil Procedure Rules 1999 (Qld) as prescribed by s 132(2)(a) of the Regulation in the sum of $17,829.40. The Appellant annexed to her submissions a copy of the costs assessment, performed by Alan Adrian, Senior Costs Consultant from Queensland Independent Costing Services Pty Ltd.
- [9]The Appellant contends that the discretion conferred on the Commission by s 132(2)(a) of the Regulation allows for the Commission to award costs of up to 1.5 times the scale amount if the Commission is satisfied the quantum of scale costs is inadequate having regard to the work involved or the importance, difficulty or complexity of the matter to which the proceeding relates.
- [10]The Appellant submits that the trial occurred across two days and involved preparation on the basis that all elements of the statutory test would be placed in dispute. The complex factual dispute between the parties, and in particular in respect of the extent to which the events alleged by the Appellant to have occurred in her workplace had in fact transpired, and with the complexation that she attributed to them, the appearance of both solicitor and counsel for reach party was warranted.
- [11]The Appellant submits that she was required to establish a number of elements pursuant to s 32 of the WCR Act as none of the elements were admitted in the Respondent's Statement of Facts and Contentions. The Appellant contends that the Respondent conceded on the second day of the hearing that the Appellant was a worker and had suffered an injury that arose out of or in the course of her employment.
- [12]In the circumstances outlined, the Appellant submits that a cost order of $17,829.40 would fail to adequately compensate the Appellant for her actual costs incurred in respect of the proceeding.
- [13]The Appellant submits that this is an appropriate case for the Commission to exercise its discretion to apply an increase on the scale costs amount, submitting that a factor of 1.25 would be appropriate resulting in a total costs figure of $22,286.75.
Respondent's submissions
- [14]The Respondent submits that the power to award costs is pursuant to s 588 of the WCR Act and is not limited to those matters set out in s 545 of the Industrial Relations Act 2016 (Qld) (IR Act).
- [15]The Respondent submits that the wording of s 558(3) imputes that the awarding of costs is an exercise of discretion however concedes that the usual process has been that costs ordinarily follow the event.
- [16]The Respondent does not quarrel with an order that the Appellant be entitled to their costs, however, submits that the Appellant is only entitled to their 'costs of the hearing' as specified at s 558(3) of the WCR Act.
- [17]The Respondent refers to Workers' Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2)[2] ('QNMU') in which Davis J provides an explanation as to what 'costs of the hearing' means and distinguishes 'costs of the hearing' from 'costs of the appeal'. Consistent with the decision in QNMU, the Respondent submits that the Commission should exercise its discretion in the present case to order that the Respondent pay the Appellant's costs of the hearing.
- [18]The Respondent submitted that they never contended that the Appellant was not a 'worker' for the purpose of s 11 of the WCR Act however did not admit those matters found within s 32 of the WCR Act.
- [19]In response to the Appellant's submission that the appeal was a complex factual dispute between the parties requiring an uplift on the scale of a factor of 1.25, the Respondent submits that there was nothing complex in the matter which would require the exercise of discretion to order an uplift beyond the scale.
- [20]The Respondent refers to Pritchard v Q-COMP[3], in which the Commission was required to make findings of fact and assess credibility not dissimilar to this matter. President Hall considered matters such as these to be no more than 'pedestrian' and 'nothing occurred to enlarge the work involved in preparing for the hearing or in conducting the case, nor did anything occur to magnify the complexity of that work'.
- [21]The Respondent submits that the Commission in this matter was only required to decide whether the Appellant had sustained a psychological/psychiatric disorder within the meaning of s 32 such that it was no more complex than the pedestrian matter of Pritchard, therefore should not attract costs of the hearing at a factor more than scale.
- [22]The Respondent submits that the Appellant is only entitled to the 'costs of the hearing' which are Counsel's fee on trial and attendance of solicitor totalling $3,820.60.
- [23]The Respondent submits that the Appellant's other claims cannot be considered the costs of the hearing in applying his Honour's explanation of what constitutes costs of the hearing in QNMU and are therefore not properly recoverable.
- [24]The Respondent submits that item 8(f), 8 (g) and 10(a) are the properly recoverable 'costs of the hearing' which have been ordered in two recent decision – The University of Queensland v Workers' Compensation Regulator (No 2) [2022] QIRC 245 and Nathwani v Workers' Compensation Regulator (No 2) [2021] QIRC 351.
Consideration
- [25]Prior to the decision in QNMU it was common in similar matters for the 'costs of the appeal' rather than the 'costs of the hearing' to be awarded to the successful party.
- [26]In QNMU, President Davis outlined the following:
- [28]However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act. In determining the proper construction of s 558(3), and in particular in the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
- [29]In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing".
- [27]The decision in QNMU confirmed that costs ordinarily follow the event, whilst noting that discretion exists for the Commission to make some other costs order.[4]
- [28]In QNMU, President Davis determined that the Commission does not have the power to order costs of the appeal, stating:
- [26]The power to award costs is not a common law power. It is one granted by statute. Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.
- [29]The general practice of the Commission prior to the decision in QNMU had been to make orders for the 'costs of the appeal' in favour of the successful party in appeals pursuant to the WCR Act. However, the decision in QNMU is authority that the discretion to award costs pursuant to s 558(3) of the WCR Act is limited to the costs of the hearing.
- [30]The Appellant was successful in her appeal before the Commission and, accordingly, the discretion to award costs has been enlivened pursuant to s 558(3) of the WCR Act. The Respondent does not object to costs being ordered to the Appellant in this matter, and to do justice between the parties in my view a costs order in favour of the Appellant is appropriate.
- [31]Pursuant to r 132(2) of the WCR Regulation the appropriate scale for counsel's or solicitor's fees is schedule 2, part 2 scale C of the Uniform Civil Procedure Rules 1999 (Qld).
- [32]The Appellant's costs outlined in the attachment to their submissions include costs under the Magistrates Court Scale of Costs Scale C for Item 1, 13(a), 5(a), 6(a) 10(a), 8(d), 8(f), 8(g) and disbursements. These items may reasonably be considered costs of the appeal and not costs of the hearing. Accordingly, they are not recoverable costs.
- [33]The only costs submitted by the Appellant that may be considered 'costs of the hearing' are the following:
Item 8(f) – Counsel's fee on trial – first day - $1,545.00
Item 8(g) – Counsel's fee on trial – subsequent day - $1,032.00
Item 10(a) Attendance of Solicitor – 2 days - $621.80/day - $1,243.60
- [34]In circumstances where the substantive matter did not involve complex issues and could reasonably be described as pedestrian in nature, per Pritchard v Q-COMP[5], an uplift of costs is not warranted.
- [35]There is no entitlement to costs associated with Items 1, 13(a), 5(a), 6(a), 8(d) from Schedule 2, Part 2, Scale C of the Uniform Civil Procedure Rules 1999 (Qld) or the costs of the disbursements and independent costing services as these items are costs of the appeal rather than costs of hearing.
Order
- [36]After considering s 558(3) of the WCR Act and regulation 132 of the WCR Regulation 2014, I make the following order:
The Respondent pay the Appellant's costs of the hearing fixed in the sum of $3,820.60.