Smith v Workers' Compensation Regulator (No 2)
[2024] QIRC 257
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- Unreported Judgment
- Smith v Workers' Compensation Regulator (No 2)[2024] QIRC 257
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Smith v Workers' Compensation Regulator (No 2)[2024] QIRC 257
Smith v Workers' Compensation Regulator (No 2)[2024] QIRC 257
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v Workers' Compensation Regulator (No 2) [2024] QIRC 257 |
PARTIES: | Smith, Bradley Scott (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2022/191 |
PROCEEDING: | Costs |
DELIVERED ON: | 5 November 2024 |
HEARING DATES: | Decided without oral hearing |
MEMBER: | O'Connor VP |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL AGAINST REVIEW DECISION – where appellant was successful in the hearing of his appeal to the Queensland Industrial Relations Commission in that he suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 – where appellant sought costs – where parties ordered to file submissions on the costs of the hearing pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 – whether costs for conferencing should be payable – whether payment of an additional amount in excess of amount allowed under the scale in relation to witnesses called by the appellant |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 558 Uniform Civil Procedure Rules 1999, Schedule 2 Workers' Compensation and Rehabilitation Regulation 2014, r 132, r 133 |
CASES: | Baigorri v Workers' Compensation Regulator (No 2) [2024] ICQ 7 Latoudis v Casey (1990) 170 CLR 534 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 Smith v Workers' Compensation Regulator [2024] QIRC 223 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 |
Reasons for Decision
- [1]This is the determination of costs consequent upon the Appellant's successful appeal to the Queensland Industrial Relations Commission ('the Commission').[1]
- [2]The Appellant, Mr Bradley Smith, made a claim for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'). On 19 October 2022 the Workers' Compensation Regulator ('the Respondent') upheld the original decision of XtraCare to reject the claim under s 32 of the WCR Act. Subsequently the Appellant was successful in his appeal to the Commission.
- [3]In my decision of 10 September 2024[2] an order was made that costs be determined on the exchange of written submissions in the absence of any application for leave to make oral submissions on costs.
- [4]Pursuant to the order, written submissions were filed on 4 October 2024. No application for leave to make oral submissions on costs was received.
- [5]The Appellant claims costs in the sum of $9,329.50 pursuant to Schedule 2 - Scale of costs - Magistrates Courts, Part 2, scale C of the Uniform Civil Procedure Rules 1999 (Qld) as follows:
Conference[3] | $1,672.50 | |
Trial hearing - first day[4] | $1,770.00 | |
Trial hearing - second day[5] | $1,182.00 | |
Attendance of solicitor with counsel each day[6] | $1,424.80 | |
Appellant instructions for disclosure[7] | $ 384.15 | |
Appellant making disclosure[8] | $ 693.85 | |
Witness fee ($103.20 x 4 doctors) | $ 412.80 | |
Lay witness fee ($89.50 x 2 physiotherapists) | $ 179.00 | |
Sub Total | $7,719.10 | |
Additional amount for costs[9] | $1,610.40 | |
Total | $9,329.50 |
- [6]The Respondent concedes that it should pay the Appellant's costs however submits that the costs should be limited to the sum total of $5,957.10.[10] This sum total excludes the amounts listed above in Item 1 (Conference) and Item 9 (Additional amount for costs).
- [7]The Appellant submits Regulation 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ('the WCR Regulation') provides that a decision to award costs is at the discretion of the commission.[11] Regulation 133 of the WCR Regulation provides for an additional amount for costs.[12] Regulations 132 and 133 state as follows:
- 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.
- 133Payment of additional amount for costs
- This section applies if -
- the Regulator or an insurer is required to pay costs in a proceeding in relation to a witness who -
- is a medical practitioner; or
- gives evidence of a professional nature; and
- the amount of fees and expenses payable in relation to the witness by the party that called the witness is more than the amount of costs allowed by the industrial magistrate or the industrial commission.
- The Regulator or the insurer may, on the application of the party that called the witness, pay an additional amount for costs that the Regulator or the insurer is satisfied are reasonable, having regard to the subject matter of the proceeding.
- [8]
- [9]In referring to conferencing, the Respondent submits that parties were directed to file a list of witnesses and serve outlines of evidence, however there was no direction in relation to witness conferencing. Conferencing was discretionary and undertaken by each party during the course of the action with a view to preparing their matter.[15]
Consideration
- [10]Costs before the Commission are calculated in accordance with s 558(3) of the WCR Act, Schedule 2, Scale of Costs - Magistrates Court, Part 2, Scale 2 of the Uniform Civil Procedure Rules 1999 (Qld) and r 132 of the WCR Regulation.
- [11]Section 558(3) of the WCR Act provides:
- 558Powers of appeal body
…
- Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.
- [12]Section 558 of the WCR Act and r 132 of the WCR Regulation provide the Commission the statutory power to award costs.
- [13]In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[16] Davis J was called upon to consider the proper construction of s 558(3) of the WCR Act. His Honour wrote:
- [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.12 In determining the proper construction of s 558(3), and in particular 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".
- [30]The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:
- "1.19An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."
- [31]I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.
- [32]Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.[17]
- [14]The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission. However, the discretion under s 558(3) is not unfettered.
- [15]Section 558(3) of the WCR Act ought to be read to limit the exercise of the discretion to the awarding of 'costs of the hearing'; and secondly, to the extent provided for in r 132 of the WCR Regulation.
- [16]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.[18]
- [17]The Respondent accepts that the Commission should exercise its discretion to order that the Respondent pay the Appellant's costs of the hearing but says that witness conferencing is a cost of the appeal and not costs of the hearing.
- [18]The question which arises before me therefore is whether the costs under item 8(d) of the Appellant's schedule of costs being conferences associated with witness preparation is an allowable cost.
- [19]The Appellant relies on the decision of Davis J in Baigorri v Workers' Compensation Regulator (No 2)[19] to support its contention that the conferencing of witnesses is a cost of the hearing.
- [20]In Baigorri, a claim was sought for the costs of disclosure in the proceedings made pursuant to an order of the Commission. Davis J allowed a claim for costs of disclosure based upon the directions given by the Commission for the conduct of the proceedings.[20]
- [21]In my view, the Appellant's argument should be rejected. The directions issued by the Commission on 18 November 2022 required only that the parties serve on each other the names of all witnesses to be called at the hearing. The directions did not extend to witness conferencing, in this case, performed by Counsel for the Appellant. The costs under item 8(d) are, in my view, properly 'costs of the appeal' and not 'costs of the hearing'.
- [22]Within the costs claimed by the Appellant there is a Witness fee for the following four doctors who provided evidence, Drs Shooter, Wilkinson, Brosnan and Cameron.
- [23]The Appellant makes a claim for payment of an additional amount of $1,610.40 for invoices from medical and professional witnesses for their preparation and appearance at the hearing in excess of the amount allowed under the scale.[21] The Appellant relies on s 133 of the WCR Regulation to support the claim.
- [24]Regulation 133 does not invest in the Commission the power to grant an amount over and above the fee allowed for a professional witness under the scale. Rather, r 133 gives to the Regulator or the insurer, on the application of the party that called the witness, the discretion to pay an additional amount for costs that the Regulator or the insurer is satisfied are reasonable, having regard to the subject matter of the proceeding.[22] The claim made pursuant to r 133 of $1,610.40 is not allowed.
- [25]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.[23]
- [26]The discretion to award costs has been enlivened. No grounds have been advanced by the Respondent to persuade me not to exercise my discretion. There is no reason why the Respondent should not pay the Appellant's costs.
- [27]Accordingly, the Respondent should pay the Appellant costs fixed in the amount of $6046.60.
- [28]It is ordered:
- The Respondent pay the Appellant's costs of the hearing fixed at $6046.60 within 21 days of the date of this decision.
Footnotes
[1]Smith v Workers' Compensation Regulator [2024] QIRC 223.
[2]Smith v Workers' Compensation Regulator [2024] QIRC 223.
[3]Uniform Civil Procedure Rules 1999 (Qld), Schedule 2, Part 2, Scale C, 8(d).
[4]Ibid, 8(f).
[5]Ibid, 8(g).
[6]Ibid, 8(10(a)).
[7]Ibid, 8(13(a)(i)).
[8]Ibid, 8(13(a)(ii)).
[9]Workers' Compensation and Rehabilitation Regulation 2014, s 133.
[10]Respondent's submissions on costs filed 4 October 2024, [10].
[11]Appellant's submissions on costs filed 4 October 2024, [6].
[12]Ibid, [8].
[13]Directions Order issued by the Industrial Registrar 18 November 2022.
[14]Appellant's submissions on costs filed 4 October 2024, [8].
[15]Respondent's submissions on costs filed 4 October 2024, [9].
[16][2021] ICQ 13.
[17]Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13; Citations omitted. Emphasis added.
[18]Northern Territory v Sangare (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ).
[19][2024] ICQ 7, (Baigorri).
[20]Ibid, [8].
[21]Appellant's submissions on costs filed 4 October 2024, attaching Invoices dated 31 October 2023, 10 November 2023 (with pre-trial and trial evidence on 6 November 2023) and 9 November 2023, [8].
[22]Workers' Compensation and Rehabilitation Regulation 2014, r 133(2).
[23]Latoudis v Casey (1990) 170 CLR 534, 543.