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RW & G Johnston Pty Ltd v Workers' Compensation Regulator[2024] QIRC 265

RW & G Johnston Pty Ltd v Workers' Compensation Regulator[2024] QIRC 265

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

RW & G Johnston Pty Ltd v Workers' Compensation Regulator and Anor [2024] QIRC 265

PARTIES: 

RW & G Johnston Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(First Respondent)

AND

Durston, Peta

(Second Respondent)

CASE NO.:

WC/2021/146

PROCEEDING:

Applications for costs

DELIVERED ON:

15 November 2024

HEARING DATES:

22 March 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [155] of these reasons for decision

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – the Appellant employed the Second Respondent who successfully made an application to WorkCover Queensland for workers' compensation – the Appellant, pursuant to the Workers' Compensation and Rehabilitation Act 2003, applied for a review of the WorkCover Queensland decision with the First Respondent – the First Respondent confirmed the earlier decision of WorkCover Queensland – the Appellant appealed against the First Respondent's decision to the Queensland Industrial Relations Commission – the First Respondent subsequently advised the Commission that it would not take an active role in the Appellant's appeal and the Second Respondent elected to be a party to the Appellant's appeal – directions made for the hearing and determination of the Appellant's appeal including trial dates –  consent order then made that the Appellant's appeal be allowed, that the Second Respondent's application for workers' compensation was not one for acceptance, that the parties were at liberty to  apply for costs and that the Second Respondent's application to vacate the trial dates be granted – Appellant applied for a costs order against the First Respondent, under s 132(3) of the Workers' Compensation Regulation 2014, with a fifty percent uplift – Appellant also applied for a costs order against the Second Respondent, on the indemnity basis or on the standard basis under s 545 of the Industrial Relations Act 2016 or, in the alternative,  under s 132(3) of the Workers' Compensation Regulation 2014 with a fifty percent uplift – whether s 545 of the  Industrial Relations Act 2016 is a source of power to award costs against the Second Respondent – whether a costs order can be made against the First Respondent and the Second Respondent under s 132 of the Workers' Compensation Regulation 2014 in the circumstances of the case – s  545 of the Industrial Relations Act 2016 is not a source of power to award costs against the Second Respondent – s 132 of the Workers' Compensation Regulation 2014, in the circumstances of the case, is not a source of power to award costs against the First Respondent and the Second Respondent – the Appellant's applications for costs against the First Respondent and the Second Respondent dismissed

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 1999, s 274 and s 677

Industrial Relations Act 2016, s 487, s 541, s 545 and s 553

Industrial Relations (Tribunals) Rules 2011, r 5, r 8, r 70 and r 226

Statutory Instruments Act 1992, s 7, s 14, sch 1

Uniform Civil Procedure (Fees) Regulation 2019, pt 3

Uniform Civil Procedure Rules 1999, sch 1 and sch 2

Workers' Compensation and Rehabilitation Act 2003, s 131, s 549, s 553, s 558 and s 561

Workers' Compensation and Rehabilitation Regulation 2014, s 132 and s 133

CASES:

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Batak v R [2024] NSWCCA 66

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333

Blundstone v Johnson & Anor [2010] QCA 148

Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007; (2016) 255 IR 268.

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Cliffs Robe River Iron Associates v Dravo Pty Ltd [1987] WASC 376; [1998] WAR 322

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Commissioner of Police for New South Wales v Cottle [2022] HCA 7; (2022) 276 CLR 62

Commissioner of Police for New South Wales v Eaton [2013] HCA 2; (2013) 252 CLR 1

CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1

Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130

Four Oaks Enterprises Pty Ltd v Clark [2003] TASSC 70; (2003) 12 Tas R 125

  Gambaro v the Workers' Compensation   Regulator [2017] QIRC 033

Gambaro v Workers' Compensation  Regulator [2017] ICQ 005

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Kim, Insung v Workers' Compensation Regulator [2018] QIRC 048

Kim v Workers' Compensation  Regulator [2019] ICQ 14

Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101

McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Crossman [2011] QCA 126; [2011] 2 Qd R 435

Re JJT; ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184

RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2023] QIRC 156

Saraswati v R [1991] HCA 21; (1991) 172 CLR 1

Wicks v Workers' Compensation Regulator [2021] QIRC 001

Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

Workers' Compensation Regulator v Glass [2020] QCA 133; [2020] 4 QR 693

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13

APPEARANCES:

Mr B. O'Donnell KC and Mr S. Lumb of Counsel, instructed by Everingham Lawyers, for the Appellant.

Mr S.A. McLeod KC directly instructed by the First Respondent.

Mr S.D. Malcolmson of Counsel instructed by Travis Schultz & Partners.

Reasons for Decision

Introduction

  1. [1]
    Ms Peta Durston was employed by RW & G Johnston Pty Ltd ('Johnston') in the position of Office Manager. Johnston operates a trucking business. On about 15 March 2021, Ms Durston made an application to WorkCover Queensland, pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'), for workers' compensation in respect of a psychiatric injury claimed to be sustained on or about 9 March 2021. WorkCover Queensland accepted Ms Durston's application. In September 2021, the Workers' Compensation Regulator made a decision rejecting Johnston's application to review the WorkCover decision ('the review decision'). By notice of appeal filed on 22 September 2021, Johnston, pursuant to the WCR Act, appealed to this Commission against the review decision ('Johnston's appeal'). At that point, the parties were Johnston and the Regulator.
  1. [2]
    As detailed later in these reasons:
  • on 24 March 2023, I adjourned the hearing of Johnston's appeal, originally set for hearing on 28 to 31 March 2023, because of further documents disclosed by Johnston to the Regulator on 21 March 2023;
  • subsequently, the Regulator informed the Commission that it would no longer take an active role in Johnston's appeal and, following that, Ms Durston exercised her right to be a party to Johnston's appeal;
  • in April 2023, Directions Orders directed to Johnston and Ms Durston were subsequently made for the hearing and determination of Johnston's appeal on 9 to 12 October 2023; and
  • on 5 October 2023, by consent, I made orders including that Johnston's appeal be allowed and that the parties had liberty to apply for costs.
  1. [3]
    Johnston then applied for costs against both Ms Durston and the Regulator.
  2. [4]
    Johnston:
  • as against Ms Durston:
  1. –seeks an order for costs pursuant to s 545 of the Industrial Relations  Act 2016 ('the IR Act') on the indemnity basis or, in the alternative, the standard basis; or further in the alternative,
  1. –seeks an order for costs pursuant to s 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ('the Regulation') and, pursuant to s 132(3) of the Regulation, a fifty percent uplift in the amounts provided for in s 132(2)(a) of the Regulation;[1] and
  • as against the Regulator, seeks an order for costs pursuant to s 132 of the Regulation and, pursuant to s 132(3) of the Regulation, a fifty percent uplift in the amounts provided for in s 132(2)(a) of the Regulation.[2]
  1. [5]
    The questions for my determination are:
  • does s 545 of the IR Act apply to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act?
  • in the circumstances of the present case, does s 132 of the Regulation confer discretion on the Commission to make a costs order in favour of Johnston against Ms Durston and against the Regulator? and
  • if the Commission does have discretion to make a costs order in favour of Johnston against Ms Durston and, or in the alternative, the Regulator, should that discretion be exercised and to what extent?
  1. [6]
    For the reasons that follow:
  • s 545 of the IR Act does not apply to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act; and
  • in the circumstances of the present case, my discretion to make a decision to award costs, pursuant to s 132(1) of the Regulation, is not enlivened.
  1. [7]
    As a consequence:
  • Johnston's application for costs against Ms Durston will be dismissed; and
  • Johnston's application for costs against the Regulator will be dismissed.

Background

  1. [8]
    Pursuant to earlier Directions Orders made by the Commission in September 2021 and April 2022, Johnston and the Regulator had, in respect of Johnston's appeal, filed and served statements of facts and contentions and lists of witnesses, and had also exchanged outlines of evidence and expert reports.
  1. [9]
    The hearing of Johnston's appeal was, in the first instance, set down for four days to commence on 28 March 2023 ('the March hearing'). However, by email from the Regulator to the Industrial Registry sent on 23 March 2023, the Regulator stated that:
  • on 21 March 2023, Johnston's solicitors made further disclosure to the Regulator which included three reports of a non-medical nature;
  • its position was that:
  1. –it needed to confer with:
  • the authors of one of the report; and
  • one of the persons mentioned in one of the other reports;
  1. –it needed to re-conference with Ms Durston and her medical practitioners;
  1. –because of the availability of its appeals officer and counsel, it could not conduct the conferences it needed to conduct in time for the scheduled commencement of the March hearing;
  1. –if its position in relation to Johnston's appeal changed, it was required to advise Ms Durston of that and give her the opportunity to be a party to the appeal; and
  1. –upon explaining those circumstances to Johnston's solicitors, it sought Johnston's consent to adjourn the March hearing;
  • Johnston's solicitors subsequently advised the Regulator that it would only consent to an adjournment of the March hearing if the Regulator paid Johnston's costs thrown away, an offer which was rejected by the Regulator for reasons that included it was only seeking the adjournment due to the late disclosure of documents and that, pursuant to s 558(3) of the WCR Act, the Commission can only order the costs of the hearing; and
  • as a consequence, it made a request to the Commission to adjourn the March hearing in order for it to conduct the conferences to which it referred. [3]
  1. [10]
    I heard the Regulator's 'request' to adjourn the March hearing on 24 March 2023. After receiving submissions from counsel for both the Regulator and Johnston, I adjourned the March hearing. In granting the adjournment, I stated:

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.[4]

  1. [11]
    On 20 April 2023, Ms Durston's solicitors were informed by the Regulator that it (the Regulator) would not be taking an active role in the appeal and that Ms Durston's solicitors were to let the Regulator know by 3.00 pm on 24 April 2023 if Ms Durston intended to join as a party to the appeal.[5]
  1. [12]
    On 24 April 2023, Ms Durston's solicitors wrote to the Commission '… seeking leave for the Second Respondent to be joined as a party to the appeal.'[6]
  1. [13]
    At a mention of Johnston's appeal on 26 April 2023:
  • the Regulator informed the Commission that while it would remain as the First Respondent, it would no longer take an active role in Johnston's appeal; and
  • Ms Durston's solicitors informed the Commission that, pursuant to s 549(3)(a) of the WCR Act, she exercised her right to be a party to Johnston's appeal.[7]
  1. [14]
    On 27 April 2023:
  • I made orders directed to Johnston and Ms Durston for the hearing and determination Johnston's appeal; and
  • I set hearing dates of 9, 10, 11 and 12 October 2023.
  1. [15]
    Johnston applied for costs thrown away because of the adjournment of the March hearing.  I made directions for Johnston and the Regulator to file and serve submissions on that question. Both parties filed submissions and I determined the question of costs on the papers.
  1. [16]
    In RW & G Johnston Pty Ltd v Workers' Compensation Regulator[8] ('Johnston costs No. 1'), I dismissed Johnston's application for costs. In doing so:
  • I found that, for all practical purposes, the Regulator's request to adjourn the March hearing was an application to adjourn that hearing, such that, based on my earlier decision in Wicks v Workers' Compensation Regulator (No. 2) ('Wicks No. 2')[9] there was power to make an order for costs pursuant to s 132 of the Regulation;[10] and
  • I determined that I would not make an order that the Regulator pays Johnston's costs thrown away for the following reasons:[11]
  1. [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.
  1. [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.
  1. [17]
    By application to appeal filed on 14 June 2023, Johnston appealed the decision in Johnston costs No. 1 to the Industrial Court of Queensland ('the Court'). However, Johnston later requested that its appeal to the Court be withdrawn.
  1. [18]
    On 28 September 2023, Ms Durston's former solicitors sent correspondence to  Johnston's solicitors stating that '… out client will not be proceeding to defend the appeal' and enclosed proposed consent orders.[12]
  1. [19]
    There was further correspondence between the solicitors for Johnston and for Ms Durston between 28 September 2023 and 3 October 2023, which included a consent order being sent to Johnston's solicitors from Ms Durston's solicitors, which had been signed on behalf of the Regulator and Ms Durston, but not by the solicitors for Johnston.[13] On 3 October 2023, the Regulator emailed the Industrial Registry, copying in the solicitors for Johnston and Ms Durston, requesting '… an urgent review mention by telephone.'[14] There was a telephone mention of the matter before me on 4 October  2023 during which there was a discussion about the terms of the consent order that was proposed, and during which agreement was reached between the parties about the terms of a draft consent order.[15] At the conclusion of that mention I relevantly stated:

HIS HONOUR: All right, then. If the parties can provide a draft order giving effect to what now has been agreed between the parties by close of business tomorrow, I’ll make that order first thing on Friday.[16]

  1. [20]
    On 5 October 2023, after receiving a draft consent order provided by Johnston's solicitors, to which the Regulator and Ms Durston agreed, I ordered by consent:
  • that Johnston's appeal be allowed;
  • that the review decision be set aside and substituted with another decision, namely, that Ms Durston's application for compensation was not one for acceptance;
  • that the parties have liberty to apply for costs; and
  • that Ms Durston's application to vacate the hearing dates be granted.
  1. [21]
    Other than in respect of Johnston's application for costs thrown away for the March hearing, and in respect of Johnston's present application for costs as against the Regulator and Ms Durston, there were no other proceedings heard by the Commission, either with the parties present, or on the papers, in respect of Johnston's appeal.

Does s 545 of the IR Act apply to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act ?

  1. [22]
    Section 545 of the IR Act provides:

545  General power to award costs

  1. A person must bear the person’s own costs in relation to a proceeding before the court or commission.
  1. However, the court or commission may, on application by a party to the proceeding, order–
  1. a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied–
  1. the party made the application or responded to the application vexatiously or without reasonable cause; or
  1. it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or
  1. a representative of a party (the represented party) to pay costs incurred by another party to the proceeding if the court or commission is satisfied the representative caused the costs to be incurred–
  1. because the representative encouraged the represented party to start, continue or respond to the proceeding and it should have been reasonably apparent to the representative that the person had no reasonable prospect of success in the proceeding; or
  1. because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the proceeding.
  1. The court or commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.
  1. [23]
    In Johnston costs No. 1, I stated:
  1. [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.[17]

Johnston's submissions

  1. [24]
    In written submissions, Johnston submitted that:
  • my decision in Johnston costs No. 1 (set out in the paragraph immediately above) was an incorrect statement of the law and should not be followed in the present case;
  • the necessary corollary of my decision in Johnston costs No. 1 is that a party to an appeal, under ch 13, pt 3, div 1 of the WCR Act, can prosecute or defend an appeal vexatiously, or without reasonable cause, with impunity insofar as any adverse costs order is concerned '… (at least up to the first day of the hearing)' and such a result is at odds with the policy underlying s 545 of the IR Act, including the protection it affords to parties who are forced into responding to an unmeritorious case; and
  • s 545 of the IR Act does provide a source of power for the Commission to make an order for costs in its favour (against Ms Durston), in the specific circumstances identified in the provision, which apply in the present case.[18]
  1. [25]
    Johnston also:
  • referred to the Explanatory Note to the Industrial Relations Bill 2016 which provided:

Clause 545 preserves section 535 of the IR Act[19] and provides that a person must bear their own costs in relation to a proceeding unless the court or commission has ordered costs to another party.[20]; and

  • submitted, by citing the decision of Martin J, President in Kim v Workers' Compensation  Regulator ('Kim'),[21] that s 545(2) of the IR Act confers a power on the Commission, in a proceeding before it, to order costs against a party in the circumstances specified in the subsection which, in substance, can be equated with conduct verging on an abuse of process.[22]
  1. [26]
    Johnston's general submission about the resolution of the conflict between the costs provisions in the IR Act and WCR Act was that the question to be asked was whether the presumption, that statutes do not contradict one another, is displaced. Johnston submitted that in the present case, this can only mean whether or not the relevant provisions of the WCR Act displace that presumption such that s 545 of the IR Act has relevant application to appeals under ch 13, pt 3, div 1 of the WCR Act.[23]
  1. [27]
    In my decision in Johnston costs No. 1 (set out in paragraph [23] of these reasons), I cited as authority for my conclusion my earlier decision in Wicks No. 2[24] and the decision of Davis J, President in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) ('QNMU').[25]
  1. [28]
    For reasons I detail later, Johnston submits that:
  • QNMU provides no support for the proposition that s 545 of the IR Act is not a source of power to award costs in respect of an appeal under ch 13, pt 3, div 1 of the WCR Act and that QNMU supports its contention that s 545 of the IR Act is such a source of power to award costs;[26] and
  • my reasoning in Wicks No. 2 went too far.[27]
  1. [29]
    Furthermore, Johnston:
  • in oral submissions, submitted that Martin J[28] in Kim, at paragraph [53], accepted that s 545 of the IR Act is an available source of power (to the Commission) to award costs in an appeal under the WCR Act[29] which is part of the ratio in Kim '…and is therefore binding upon the Commission.';[30] and
  • in its written submissions, submitted that two previous decisions of the Court have held that s 545 of the IR Act is applicable to an appeal under s 549 of the WCR Act,[31] namely Kim[32] and Gambaro v Workers' Compensation Regulator ('Gambaro'),[33] and that those decisions '… are binding on the Commission.'[34]

The Regulator's submissions

  1. [30]
    In written submissions, the Regulator submitted that:
  • the decision in Kim preceded the decision of Davis J in QNMU;
  • up until the decision in QNMU, there appears to have been an acceptance that s 545 of the IR Act was applicable to the question of costs in respect to workers' compensation appeals;
  • the reference by Davis J to s 545 of the IR Act in QNMU '…was no more than a general observation as to the scope of the section and that the power to make an order for costs under the section itself is only enlivened when certain circumstances are said to arise'; and
  • the position (in Kim[35]) has been displaced by QNMU where Davis J, at paragraph [28], observed that the Commission's only power to award costs comes from the WCR Act, not restricted by s 545 of the IR Act.[36]
  1. [31]
    In oral submissions, the Regulator submitted that:
  • the starting point is s 558(3) of the WCR Act which provides that the costs of the hearing are in the appeal body's discretion, except to the extent provided under s 132 of the Regulation;
  • Davis J in QNMU:
  1. –at paragraph [28], held that the Commission's only power to award costs '..in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act';
  1. –at paragraph [29], held that costs are limited to the costs of the hearing; and
  1. –at paragraph [32], held that the costs of the (physical) hearing are not the costs of the appeal; and, therefore
  • there was a regime for awarding of costs when an appeal goes from start to finish and the ultimate determination is made by the Commission in relation to the outcome of that appeal.[37]
  1. [32]
    The Regulator then went on to submit that:
  • in the present case, the appeal did not get to the final hearing and there was consent that the appeal be determined in favour of Johnston in respect of which it now applies for its costs thrown away of the hearing that was set down;
  • the combined effect of s 558(3) of the WCR Act and s 132 of the Regulation is that the exercise of discretion to award costs pursuant to s 558(3) of the WCR Act, in respect of the costs of the hearing, cannot be awarded on the indemnity basis because the effect of s 132 of the Regulation excludes awarding costs on such a basis and, in that regard, the Legislature has been quite deliberate in dealing with the power of the Commission to make an order against a party to an appeal before it under the WCR Act;
  • Johnston's argument is that if s 545 of the IR Act applied in the present case, and the circumstances contemplated in s  545(2) of the IR Act were made out, then the Commission could award costs on the indemnity basis when there was no hearing of Johnston's appeal; and
  • Wicks No. 2, by having regard to the words used in the relevant schemes in the WCR Act and the IR Act, was correctly decided in so far as s 545 of the IR Act not applying to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act.[38]

Ms Durston's submissions

  1. [33]
    In written submissions, Ms Durston submitted that the consent orders I made on 5 October 2023 constitute a decision of the Commission under section 558(1) of the WCR Act so that the Commission's power to make an order for costs is that found in section 558(3) of the WCR Act and, for that reason, the principles for awarding costs under s 545 of the IR Act are not applicable.[39]
  1. [34]
    In oral submissions, Ms Durston adopted the Regulator's submissions on the law.[40]
  1. [35]
    Having regard to the parties' submissions, to determine whether s 545 of the IR Act is a source of power for the Commission to make an order for costs against Ms Durston, there are three discrete questions to answer, namely:
  • first, is the Commission bound by the decisions of the Court in Kim and Gambaro in respect of the application of s 545 of the IR Act to appeals to it under ch 13, pt 3, div 1 of the WCR Act?
  • secondly, is QNMU binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act?
  • thirdly, if QNMU is not binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act, as a matter of construction, does s 545 of the IR Act apply to appeals under ch 13, pt 3, div 1 of the WCR Act?

Is the Commission bound by the decisions of the Court in Kim and Gambaro in respect of the application of s 545 of the IR Act to appeals to it under ch 13, pt 3, div 1 of the WCR Act?

  1. [36]
    As referred to earlier, Johnston submits that two decisions of the Court,  Kim and Gambaro, have held that s 545 of the IR Act is applicable to an appeal under s 549 of the WCR Act and that those decisions are binding on the Commission.
  1. [37]
    Under the common law system of adjudication, the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case.[41] The holding of a case, the rule of the case and the ratio decidendi of the case are different. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[42] McHugh J stated:
  1. 59
    The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue –  for the plaintiff or the defendant. The rule of the case is the principle for which the case stands –  although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision.
  1. [38]
    In Kim, at first instance before the Commission, the appellant filed an appeal against a review decision of the Regulator under ch 13, pt 3, div 1 of the WCR Act. The Commission, after receipt of written submissions, granted an oral application made by the Regulator, on the first day of the appeal after the appellant's opening submissions, to dismiss the appeal pursuant to s 541 of the IR Act.[43]  That is, the appeal to the Commission was not disposed of by way of the review decision being confirmed pursuant to s 558(1)(a) of the WCR Act.  In doing so, the Commission ordered that the appellant pay the Regulator's costs of, and incidental, '… to this Application and the substantive Appeal.'[44] No section of any Act was cited, in the Commission's decision, as the Commission's source of power to make the order for costs that was made. 
  1. [39]
    Upon the appellant's appeal to the Court, the third ground of appeal was:
    1. The Commission erred in ordering the appellant to pay the Regulator’s costs of, and incidental to the Application for Dismissal made by the respondent and the substantive appeal contrary to s 545(2) of the IR Act in circumstances where no notice was given prior to the application being made on the first day set down for hearing of the appeal, with time permitted for submissions to be made, and when no evidence was in fact heard.[45]
  1. [40]
    In determining the third ground of appeal, Martin J:
  • stated that the treatment of costs by the Member of the Commission was brief;[46]
  • at paragraph [53], stated that the '… general power to award costs is governed by s 545 of the IR Act' and then set out subsections (1) and (2) of that section;
  • set out the Regulator's submission to the Court, namely, that an appeal without merit was an abuse of process and should not be allowed to remain on foot and then his Honour held that whilst that submission was in respect of an application to strike out generally, it was '… equally pertinent to the question of costs.';[47]
  • referred to an earlier decision of Deputy President O'Connor (as his Honour then was) as to the applicable principles governing the discretion to award costs in respect of the circumstance referred to in s 545(2)(a) of the IR Act, namely, where an application was made without reasonable cause;[48] and
  • disposed of this ground of appeal by stating:
  1. [56]
    The appeal to the Commission could not succeed. The decision to award costs is a matter of discretion and no error has been demonstrated that vitiate the exercise of that discretion.
  1. [41]
    Johnston submits that at paragraph [53] in Kim, Martin J accepted that s 545 of the IR Act is an available source of power to the Commission to award costs in an appeal under the WCR Act, that it was part of the ratio of the case, and therefore is binding on the Commission.
  1. [42]
    I cannot accept this submission.
  1. [43]
    The ratio decidendi of the case, in respect of the third ground of appeal, was that an appeal without merit is an abuse of process and, therefore, is one without reasonable cause within the meaning of s 545(2)(a) of the IR Act.  I accept that s 545 of the IR Act, as a source of power for the Commission to award costs in that case, was part of the ratio decidendi.  However, having regard to the reasons for the decision of the Commission at first instance, and to the reasons for the decision of the Court, it was assumed by the Court that s 545(2)(a) of the IR Act was the source of power, enlivened by the Commission, to make the order that the appellant pay the Regulator's costs of, and incidental, '… to this Application and the substantive Appeal.' 
  1. [44]
    The argument before the Court concerning the third ground of appeal was about whether the Commission's discretion to make a costs order was enlivened and exercised without error.  There was no argument before the Court about whether or not s 545(2) of the IR Act was in fact a source of power for the Commission to order that the appellant pay the Regulator's costs of, and incidental, '… to this Application and the substantive Appeal.'  Thus, the availability of s 545(2) of the IR Act, as being a source of power for the Commission to make the costs order it made, was assumed by the Court without argument.
  1. [45]
    In Coleman v Power,[49] McHugh J stated:

Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.

  1. [46]
    In CSR Ltd v Eddy,[50] Gleeson CJ, and Gummow and Heydon JJ, relevantly stated (footnotes omitted):

It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions. But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. “[T]he presidents, … sub silentio without argument, are of no moment.”[51]

  1. [47]
    For these reasons, I reject Johnston's argument that Kim is a decision that binds me as to the applicability of s 545 of the IR Act to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act.
  1. [48]
    For the same reasons, I also reject Johnston's argument that I am similarly bound by the decision of the Court in Gambaro.  In Gambaro, at first instance, the appellant appealed against a review decision of the Regulator to the Commission and that  appeal was made under ch 13, pt 3, div 1 of the WCR Act.[52] The Commission confirmed the review decision and ordered Mr Gambaro to pay the Regulator's costs of and incidental to the appeal as agreed or assessed.[53]
  1. [49]
    Mr Gambaro then made an application to appeal the Commission's decision to the Court. That application to appeal to the Court did not comply with the Industrial Relations (Tribunals) Rules 2011 ('the Rules') in that it did not state any concise grounds of appeal. An application was then made by the Regulator to set aside the appeal, under r 226(2)(a) of the Rules, for those reasons. In allowing the Regulator's application, and dismissing the appeal under r 226, Martin J found that the notice of appeal did not disclose an arguable case. His Honour also found that setting aside the notice of appeal to allow Mr Gambaro to amend his notice of appeal would not change that result, there were no other grounds upon which Mr Gambaro might rely and, because it was an application without merit, it was an abuse of process and should not be allowed to remain on foot.[54]
  1. [50]
    The Regulator sought its costs of its application and the appeal '… pursuant to s 541(c) of the Act.'[55] This could only be a reference to s 541(c) of the IR Act and not to s 541 of the WCR Act. The Court then held (footnotes omitted):
  1. [52]
    The general power to award costs is governed by s 545 of the IR Act. That section provides:

“545 General power to award costs

  1. A person must bear the person’s own costs in relation to a proceeding before the court or commission.
  1. However, the court or commission may, on application by a party to the proceeding, order–
  1. a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied–
  1. the party made the application or responded to the application vexatiously or without reasonable cause; or
  1. it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; …”
  1. [53]
    Although the respondent did not make specific submissions as to how the court’s discretion had been enlivened, this would have been unnecessary.
  2. [54]
    In MIM Holdings Ltd v AMWU, Hall P explained that the phrase “without reasonable cause” means “objectively recognisable as one which could not succeed at the time when the application was made”.
  3. [55]
    As has been explained above, it is abundantly clear that this appeal cannot succeed. The appellant has no prospect of success on any of the grounds of appeal. An order for costs is therefore appropriate.
  1. [51]
    The Regulator sought its costs under s 541(c) of the IR Act, not s 545 of the IR Act. Mr Gambaro was self-represented. There was no argument before the Court about whether or not s 545 of the IR Act was a source of power to make an order for costs in respect of an appeal to the Court from a decision of the Commission in the circumstances of that case; namely, an appeal to the Court from a decision made by the Commission under the WCR Act. Such power was assumed without argument. Indeed, the facts of that case did not even address whether or not s 545 of the IR Act was a source of power for the Commission to make an order for costs in respect of an appeal to the Commission under ch 13, pt 3, div 1 of the WCR Act. For these reasons, Gambaro is not authority, which is binding on me, that s 545 of the IR Act is a source of power for the Commission to award costs in respect of appeals to it under ch 13, pt 3, div 1 of the WCR Act.

Is QNMU binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act?

  1. [52]
    Johnston made a number of submissions about the decision in QNMU.
  1. [53]
    First, Johnston submitted that s 545 of the IR Act was not in issue in QNMU.[56]  Johnston referred to paragraphs [25] to [29] of QNMU where Davis J, President stated:[57]
  1. [1]
    By s 558(3), what is “in the appeal body’s discretion” (here the QIRC ) are the “costs of the hearing”.  The “costs of the hearing” may be quite a different thing to the “costs of the appeal”.
  2. [2]
    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.
  3. [3]
    There is an additional power to award costs under s 545 of the IR  Act.  That provides as follows:

…

  1. [4]
    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 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.
  2. [5]
    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”.
  1. [54]
    Secondly, Johnston submitted that unlike in the present case, QNMU did not involve a surrender by the other parties to the appeal in advance of the hearing.[58]
  1. [55]
    Thirdly, Johnston submitted:

[T]here is no ambiguity in the statement of Davis J, at [27], that "There is an additional power to award costs under s 545 of the IR Act". The statement immediately follows a reference, at [26], to s 558(3) of the WRCA and the need for the Commission to have a power vested by statute to award costs of the appeal beyond the costs of the hearing. The statement makes it clear that s 545 provides an additional power to award costs in the context of a Pt 3 Div 1 appeal.[59]

  1. [56]
    Fourthly, Johnston submitted that the observations of Davis J in QNMU, at paragraph [28], do not undermine the clear statement at paragraph [27] because the words '…in this case' in paragraph [28] are important in that:
  • QNMU involved no possible application of s 545 of the IR Act and that is the context in which his Honour's statement was made, reinforced by his Honour's reference to the power not being 'restricted' by s 545 of the IR Act, which suggests that an additional power under that provision does exist, but that the conditions imposed by it had no application to the case at hand; and
  • similar observations can be made in respect of Davis J's statement at paragraph [29].[60]
  1. [57]
    However, contrary to its earlier written submissions set out above, in its written submissions in reply, Johnston submitted that the reasoning in QNMU regarding s 545 of the IR Act '… is ambiguous.'[61] Johnston further submitted:[62]

There is no clear reasoning towards a conclusion that s. 545 is simply inapplicable to an appeal under s. 549 of the WCR Act. There is no analysis justifying departure from the contrary view previously accepted in decisions such as Kim and Gambaro. The first sentence of para. 28 is unclear. If the Court is trying to say that s. 545 is not a source of power to award costs in an appeal under s. 549 of the WCR Act, then the reasoning appears to be erroneous. The authority cited, Workers' Compensation Regulator v Glass (2020) 4 QR 693, appears to have been erroneously applied. The decision in Glass concerned an appeal from the Commission to the Industrial Court, and made observations concerning the application of the IR Act to such an appeal. But Glass did not concern an appeal to the IRC. Nor did it make comment on the application of the IR Act to an appeal to the IRC.

  1. [58]
    Still further, in oral submissions, Johnston submitted:
  • when the decision in QNMU is closely considered:
  1. –the question of whether s 545 of the IR Act was or was not an available source of power to award costs was not in issue, and was not part of the ratio decidendi of the case, because both parties to that appeal accepted that the cost of the appeal should be limited to the '…costs of the hearing';[63]
  1. –Davis J went on to explain what '…costs of the  hearing', within the meaning of s 558(3) of the WCR Act, meant;[64] and
  1. –neither side relied on s 545 of the IR Act as a source of power under which to award costs for the whole appeal;[65]
  • what Davis J says in paragraphs [27] and [28] of QNMU is not particularly clear in that, in paragraph [27], his Honour seems to be saying that s 545 of the IR Act is an additional power '…towards costs, yet 28, first sentence, seems to be widely regarded as saying it's not an available source of power towards costs';[66]
  • if Davis J, in [28] of QNMU, held that s 545 of the IR Act was not an available source of power to award costs (in an appeal under ch 13, pt 3, div 1 of the WCR Act):
  1. –then his Honour would not have used the statement in the first sentence of paragraph [27], namely '…there is an additional power to award costs under s 545 of the IR Act;'[67] and
  1. –in paragraph [16] of QNMU, where Davis J stated that the '… power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act', his Honour, in the footnote, referred to Kim,[68] but without providing any analysis of why Kim was wrong and seemed to refer to it with approval;[69] and
  • while in the first sentence in paragraph [28] of QNMU, Davis J stated '…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':
  1. –Davis J does not provide any reasoning for that statement;
  1. –while Davis J does refer, in a footnote, to Workers' Compensation Regulator v Glass ('Glass'),[70] the decision in Glass does not provide any support for the proposition that s 545 of the IR Act does not apply to an appeal to the Commission under ch 13, pt 3, div 1 of the WCR Act;[71]
  1. –if Davis J thought the decision in Glass was authority for the proposition that s 545 of the IR Act does not apply to an appeal under ch 13, pt 3, div 1 of the WCR Act, then his Honour '…was wrong in that view and should not be followed';[72]
  1. –in any event, the statement in paragraph [28] of  QNMU was obiter because s 545 was not raised by any party because his Honour was concerned with the meaning of the phrase 'Costs of the hearing' within the meaning of s 558(3) of the WCR Act;[73] and
  1. –unlike the decision in QNMU, the decision in Kim '… relies upon 545 as an available source of power' and was '… part of the ratio but in the Nurses Union it was not.'[74]
  1. [59]
    Fifthly, it was submitted[75] that Davis J, in QNMU,[76] cited, with apparent approval, the decision in Kim.[77]
  1. [60]
    These submissions by Johnston:
  • to a significant degree, misconstrue what Davis J decided in QNMU;
  • do not accurately reflect the ratio decidendi of the decision of Sofronoff P in Glass; and
  • in respect of the contention that I am bound by the decisions of the Court in Kim and Gambaro –  that s 545 of the IR Act is a source of power for the Commission to make an order for costs in respect of an appeal to it under ch 13, pt 3, div 1 of the WCR Act – are wrong.

The application of s 545 of the IR Act to appeals under ch 13, pt 3, div 1 of the WCR Act, while not in issue in QNMU, was an issue to which reference was made in QNMU

  1. [61]
    I accept Johnston's submissions that, from the reasons given in QNMU, neither the Regulator or the Queensland Nurses and Midwives' Union of Employees ('the Union') relied on s 545 of the IR Act as the source of power for the Commission to make the order for costs. This is because both parties accepted that the costs should be limited to the '… costs of the hearing', this being a phrase which only appears in s 558(3) of the WCR Act.[78]
  1. [62]
    Nevertheless, the applicability of s 545 of the IR Act as a source of power for the Commission to award costs in an appeal to it under ch 13, pt 3, div 1 of the WCR Act was an issue dealt with by Davis J. This is because his Honour:
  • allowed the Regulator's appeal against the decision of the Commission under appeal, namely, the Commission's decision that the Regulator '…meet the appellant's costs of the appeal';[79] and
  • then exercised the discretion to award costs afresh.[80]
  1. [63]
    In doing so Davis J:
  • stated (citing Kim), that the power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act;[81] and
  • in explaining what the '…costs of the hearing' within s 558(3) of the WCR Act meant, referred to '… the additional power to award costs under s 545 of the IR Act.'[82]
  1. [64]
    In the first sentence of paragraph [28] of QNMU, Davis J stated that '…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'[83] and, in doing so, cited the decision of Sofronoff P in Glass.[84]
  1. [65]
    In Glass, a worker appealed against a decision of the President of the Court to the Court of Appeal. The decision of the Court was to dismiss an appeal against a decision of the Commission, made under the WCR Act, which confirmed an earlier review decision of the Regulator. The Regulator applied to the Court of Appeal to strike out the worker's notice of appeal on the ground that no such appeal lay from a decision of the Court.[85] The issue was the effect of the privative clause in s 561(4) of the WCR Act. Section 561 of the WCR Act provides:

561  Appeal to industrial court

  1. A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. The Industrial Relations Act 2016 applies to the appeal.
  1. The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. The court’s decision is final.
  1. [66]
    The President of the Court of Appeal summarised the parties' competing contentions this way:
  1. [7]
    The Regulator contends that the effect of s 561(4) is that there can be no appeal in this case from a decision of the Industrial Court to the Court of Appeal. The appellant submits that, because s 561(2) Workers’ Compensation and Rehabilitation Act 2003 engages the provisions of the Industrial Relations Act 2016, s 554(1) of the latter Act applies to confer such a right. Section 554(1) provides:

“A person aggrieved by a decision of the court, or the full bench constituted by the president and 2 or more other members, may appeal to the Court of Appeal on the ground of–

  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.”
  1. [8]
    The appellant submits that despite s 561(4) Workers’ Compensation and Rehabilitation Act 2003, the effect of s 561(2) confers a right of appeal.
  1. [67]
    The resolution of the issue came down to the purpose of s 561(2) of the WCR Act. In deciding in favour of the Regulator, Sofronoff P stated:
  1. [9]
    Before 2016, when the current Industrial Relations Act 2016 was passed, s 561(2) Workers’ Compensation and Rehabilitation Act 2003 referred to the Industrial Relations Act 1999 which provided in s 340 for a right of appeal to the Court of Appeal only from decisions of the Industrial Court made under ss 248(1)(c) and 251 Industrial Relations Act 1999. Otherwise, ss 349(1) and 349(2) of the 1999 Act provided that decisions of the Industrial Court were “final and conclusive”. It follows that until 2016, although s 561(2) Workers’ Compensation and Rehabilitation Act 2003 engaged the Industrial Relations Act 1999, none of the provisions of that Act conferred any right of appeal from a workers’ compensation decision made by the Industrial Court and s 561(4) Workers’ Compensation and Rehabilitation Act 2003 rendered decisions in such cases final.
  1. [10]
    When the 2016 Act was passed, the scope for an appeal to the Court of Appeal under the new Act was widened by s 554. Henceforth, any decision could be made the subject of appeal to the Court of Appeal, albeit on limited grounds.
  1. [11]
    The appellant submits that that widening had the effect of removing the privative effect of s 561(4) Workers’ Compensation and Rehabilitation Act 2003. That submission cannot be accepted.
  1. [12]
    Prior to 2016 it was plain that any limitation on appeals from decisions of the Industrial Court in matters arising under the Industrial Relations Act 1999 were to be found in that Act. Likewise, any limitation upon appeals to the Court of Appeal in relation to decisions of the Industrial Court in matters arising under the Workers’ Compensation and Rehabilitation Act 2003 were to be found in that Act and not in the Industrial Relations Act 1999.
  1. [13]
    The only reason for having s 561(2) Workers’ Compensation and Rehabilitation Act 2003 engage the provisions of the Industrial Relations Act 1999 was that the legislature wished to confer jurisdiction upon an existing tribunal to determine disputes arising under the workers’ compensation legislation. The workers’ compensation legislation invoked the provisions of the industrial relations legislation because it was that legislation that created a court, constituted it and made provision for procedure within it. However, each Act made provision for whether, how and to what extent there could be any appeal from decisions made under the two Acts. When the new Industrial Relations Act 2016 was passed, in this respect, nothing changed.
  1. [68]
    Having regard to what Davis J stated in the first sentence of paragraph [28] in QNMU, it is obvious that it was paragraphs [12] and [13] of the judgment of Sofronoff  P in Glass upon which Davis J found support for his conclusion that the QIRC's only power to award costs in that case '…probably comes from the WCR Act, not restricted by s 545 of the IR Act.' This is because each Act – the IR Act and the WCR Act – make provision for the power of the Commission to make costs orders in respect of specific proceedings under those two Acts.
  1. [69]
    In my view it is clear that what Davis J stated in QNMU was that the power of the Commission, to make an order for costs in respect of an appeal before it under ch 13, pt 3, div 1 of the WCR Act, came from the WCR Act and not the IR Act.
  1. [70]
    However, as Kirby J stated in Garcia v National Australia Bank Ltd[86](footnote omitted):
  1. 56
    It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order.
  1. [71]
    Having regard to these principles, my opinion is that the decision of Davis J in QNMU about s 545 of the IR Act was obiter dictum. Remarks will not be part of a binding rule unless they relate to an issue in contention that had to be decided by the court to reach its order.[87] Because, in QNMU, the Regulator and the Union accepted that the costs that could be ordered by the Commission were the costs of the hearing (as provided for in s 558(3) of the WCR Act), then Davis J's statement in the first sentence in paragraph [28] of QNMU, while persuasive, is not binding on the Commission.

The effect of Kim and Gambaro

  1. [72]
    Johnston's submissions – that the decisions in Kim and Gambaro are binding authority for the proposition that s 545 of the IR Act is a source of power for the Commission to award costs in respect of an appeal to it under ch 13, pt 3, div, 1 of the WCR Act – are wrong for the reasons I have given earlier in paragraphs [36] to [51].
  1. [73]
    Further, Johnston's submission, that in QNMU, Davis J cited with apparent approval the decision in Kim, misrepresents the reference by his Honour to Kim. In QNMU at paragraph [16],  Davis J cited paragraphs [52]-[56] of Kim solely for the purpose of those passages being authority for the proposition that the power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act. That is, under the WCR Act, costs ordinarily follow the event but, by contrast, the limitation of the power to award costs under s 545 of the IR Act is, relevantly:
  • that a person must bear the person's own costs in relation to a proceeding before the Court or Commission (s 545(1) of the IR Act); and
  • that the Court or Commission may order a party to a proceeding to pay costs incurred by another party if the Court or Commission is satisfied of the circumstances referred to in either s 545(2)(a)(i) or s 545(2)(a)(ii) of the IR Act.
  1. [74]
    The citation of Kim by Davis J was clearly not for the purpose of supporting the proposition that s 545 of the IR Act was a source of power for the Commission to award costs in respect of an appeal to it under ch 13, pt 3, div 1 of the WCR Act.
  1. [75]
    Further, contrary to Johnston's submissions, there was no need for Davis J to give reasons that Kim was wrongly decided. This was because his Honour's citation of paragraphs [52]-[56] of Kim was not about the application of s 545 of the IR Act to appeals to the Commission under the WCR Act.

If QNMU is not binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act, as a matter of construction, does s 545 of the IR Act apply to appeals under ch 13, pt 3, div 1 of the WCR Act?

  1. [76]
    Given the parties' submissions, this question requires a consideration of my decision in Wicks No. 2.
  1. [77]
    In Wicks v Workers' Compensation Regulator,[88] Ms Wicks appealed to the Commission, under ch 13, pt 3, div 1 of the WCR Act, against a review decision of the Regulator which had confirmed the rejection of her application for workers' compensation.  The Regulator made an application in existing proceedings seeking the dismissal of Ms Wick's appeal on the basis that her application for workers' compensation was not valid and enforceable within the meaning of s 131(1) of the WCR Act.[89] After hearing the parties by way of written submissions, I dismissed that interlocutory application.[90] I then heard the parties about costs. The Regulator argued, inter alia, that s 545 of the IR  Act was a source of power for the Commission to award costs in that matter, namely the interlocutory application it made.
  1. [78]
    In Wicks No. 2, I decided that s 545 of the IR Act was not a source of power for the Commission to award costs in that matter.  In coming to that decision I relevantly stated (footnotes omitted):
  1. [20]
    The next question, therefore, is whether there is a power to make an order for costs in relation to the Regulator's application in the IR Act.
  1. [21]
    Section 545 of the IR Act relevantly provides:

545 General power to award costs

  1. A person must bear the person’s own costs in relation to a proceeding before the court or commission.
  1. However, the court or commission may, on application by a party to the proceeding, order-
  1. a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied-
  1. the party made the application or responded to the application vexatiously or without reasonable cause; or
  1. it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success;
  1. [22]
    I am not persuaded that s 545 of the IR Act is a source of power to make an order for costs in relation to the Regulator's application. There are a number of reasons for this.
  1. [23]
    First, where there is a conflict or inconsistency between general and specific provisions in two separate Acts, the presumed but rebuttable intention of Parliament is that the specific provisions prevail in relation to the subject matter.
  1. [24]
    Section 558(3) of the WCR Act is found within ch 13, pt 3, div 1 of the WCR Act and is a provision dealing specifically with, relevantly to appeals made to this Commission under that division, the power of the Commission to award costs. Section 132 of the WC Regulations applies to a proceeding heard by an Industrial Magistrate or the Commission under the WCR Act.
  1. [25]
    On the other hand, s 545 of the IR Act concerns the general power of the Court and the Commission to award costs and that section makes no express reference to proceedings under the WCR Act.
  1. [26]
    There are other indications in the IR Act that s 545 of the IR Act has no application where a specific provision is made elsewhere concerning the power to award costs. Section 548 of the IR Act provides that the provisions for costs contained in sch 2 to the IR Act apply to a proceeding heard by the Commission under the Anti‑Discrimination Act 1991 ('the AD Act') and to an appeal to the Court under pt 6 of the IR Act against a decision of the Commission in relation to a proceeding heard by the Commission under the AD Act.
  1. [27]
    Secondly, s 558(3) of the WCR Act provides that costs '… of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.' Section 132 of the WC Regulation does affect the discretion to be exercised under s 558(3) of the WCR Act:
  • by limiting the extent to which costs for counsel's or solicitor's fees can be awarded to those contained in sch 2, pt 2, scale C of the Uniform Civil Procedure Rules 1999 (Qld) ('the UCPR');
  • by providing that costs in relation to witness fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, pt 3;
  • by providing that costs in relation to bailiff's fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, sch 2, pt 2; and
  • in relation to counsel's or solicitor's fees, by conferring specific discretion to allow a greater amount of costs, up to 1.5 times, to be awarded where the 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.
  1. [28]
    By contrast, pursuant to s 545(1) of the IR Act, a person must bear the person's own costs in relation to a proceeding before the Court or the Commission. Section 545(2) of the IR Act provides that the Court or the Commission may, on application by a party to the proceeding, order:
  • that a party to the proceeding pay costs incurred by another party if the Court or the Commission is satisfied of certain matters; or
  • that a representative of a party pay costs incurred by another party to the proceeding if the Court or the Commission is satisfied of certain matters.
  1. [29]
    Furthermore, pursuant to s 545(3) of the IR Act, the Court or the Commission may order a party to pay another party an amount reasonably payable to a person who is not a lawyer, for representing the other party.
  1. [30]
    By further contrast in terms of making an order for costs under s 545 of the IR Act, r 70(2) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') sets out the particular scale of costs under the UCPR to which the Court, a Full Bench of the Commission or the Commission constituted by a single-member, may have regard. In addition, the Court, pursuant to r 70(3) of the Rules, has discretion to order that costs be assessed by the Registrar.
  1. [31]
    Thirdly, the WCR Act expressly deals with, relevantly, appeals to the Court from decisions of the Commission. Under the WCR Act, a party aggrieved by a decision of the Commission under ch 13, pt 3, div 1 can appeal to the Court and the IR Act applies to the appeal. However, the WCR Act expressly deals with the issue of costs on such an appeal. The Court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.
  1. [32]
    Finally, reference should be made to s 553 of the IR Act which provides:

553  General application of provisions

The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this Act or another Act, unless the contrary intention appears.

  1. [33]
    In respect of the conduct of an appeal under ch 13, pt 3, div 1 of the WCR Act, the provisions in that division, plus the applicable provisions in the UCPR and the Rules, effectively provide a complete statement of the matters necessary for the conduct of such an appeal, such that a contrary intention appears and the IR Act does not apply. The reasoning I have referred to in paragraphs [24]-[30] above demonstrates the contrary intention appearing in the WCR Act and the WC Regulation as to the power of the Commission to make a costs order for an appeal under ch 13, pt 3, div 1 of the WCR Act.
  1. [34]
    For all these reasons, my opinion is that the more general provisions in s 545 of the IR Act must give way to the contrary specific powers in s 558(3) of the WCR Act and in s 132 of the WC Regulation. Section 545 of the IR Act does not apply to the conduct and determination of an appeal under ch 13, pt 3, div 1 of the WCR Act.
  1. [79]
    Having regard to my decision in Wicks No. 2, Johnston advances a number of reasons why s 545 of the IR Act does apply to appeals under ch 13, pt 3, div 1 of the WCR Act. In general, these are:
  • the decision in Wicks No. 2 went too far because while there is a conflict between s 545 of the IR Act and s 558(3) of the WCR Act, the IR Act has application outside the area of inconsistency; and
  • the construction it advances is supported by:
  1. –the decision of Martin J in McEnearney v Simon Blackwood (Workers' Compensation Regulator) ('McEnearney');[91]
  1. –s 553 of the WCR Act and r 70 of the Rules; and
  1. –s 487 of the IR Act.
  1. [80]
    In written submissions, Johnston submitted that my reasoning in Wicks No. 2 at paragraphs [22]-[34] went too far because:
  • the only area of overlap between s 545 of the IR Act and s 558 of the WCR Act concerns awarding costs of the hearing of an appeal to the Commission under the WCR Act;
  • there is no overlap between the sections regarding awarding costs of such an appeal that are not costs of the hearing of the appeal;
  • consequently, if there is inconsistency between the sections, it only results in the non-application of s 545 of the IR Act in the area of overlap, namely, in the awarding of costs of the hearing of an appeal;[92] and
  • the present case does not concern the costs of the hearing of an appeal under s 549 of the WCR Act, such that '…there is no good reason why s. 545 should not apply to the present costs application.'[93]
  1. [81]
    In respect of my reasons given in paragraph [23] in Wicks No. 2, in oral submissions, Johnston further submitted that:
  • Davis J, in QNMU, did not deal with any of those reasons;[94]
  • section 558(3) of the WCR Act only deals with the costs of the hearing, whereas s 545 of the IR Act '… can govern all the costs of the appeal' therefore there is '… no overlap and no inconsistency', and because the '…present appeal didn't have a hearing', and that it was arguing for the '…costs of the appeal other than the hearing', there was no inconsistency between s 558(3) of the WCR Act and s 545 of the IR Act so that '…there's no reason that 545 could not apply to the appeal.';[95]
  • at the time I made the decision in Wicks No. 2, Davis J had not made the decision in QNMU that costs under s 558(3) of the WCR Act were limited to the costs of the hearing;[96] and
  • to the extent there is inconsistency between the provisions, s 558(3) of the WCR  Act governs the costs of the hearing but '… outside the costs of the hearing of the appeal', s 545 of the IR Act '… alone applies' which '… has the practical advantage of giving the Commission power to deal with all the costs of the appeal, not just costs of the hearing of the appeal, which we say is desirable in the public interest'.[97]
  1. [82]
    As to my reasons given in paragraph [33] in Wicks No. 2,[98] Johnston submitted that in respect of my citation of the decision of Martin J in Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) ('Gillow'):[99]
  • that case only concerned the limited question of whether a non-party given a right to be heard in an appeal to the Commission, under ch 13, pt 3, div 1 of the WCR Act, had a right to appeal to the Court because only a party aggrieved by a decision (of the Commission) can appeal to the Court;[100] and
  • the reasoning of Martin J '…really turned upon there being a specific provision in the WCR Act regulating that.'[101]
  1. [83]
    Johnston also referred to s 553 of the WCR Act (located in ch 13, pt 3, div 1 of the WCR Act) which provides:
  1. 553
    Application of Uniform Civil Procedure Rules 1999 and Industrial Relations (Tribunals) Rules 2011
  1. The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2011 apply to an appeal under this division with necessary changes.
  1. However, if there is an inconsistency between a provision of the rules mentioned in subsection (1) and a provision of this division, the provision of this division prevails to the extent of the inconsistency.
  1. [84]
    Johnston submitted that r 70 of the Rules provides that it applies if the Court or the Commission makes an order for costs under s 545 of the IR Act, such that the '… Parliament has contemplated that the Commission may make an order for costs under s 545 of the IRA in a Pt 3 Div 1 appeal. No question of inconsistency arises.'[102]
  1. [85]
    Johnston also made the following oral submissions in support of its contention that '…the IR Act can apply to an appeal under the WCR Act':[103]
  • first, it referred to the decision of Martin J in McEnearney[104] and submitted that, in paragraphs [10] and [11] of that decision, his Honour:
  1. –distinguished Gillow with that case being confined to any situation dealing with the power to give an employer leave to appeal on an appeal;[105] and
  1. –held that there was power to grant someone leave to intervene, pursuant to the IR Act, in an appeal to the Commission under the WCR Act;[106]
  • secondly, it referred to paragraphs [53] and [56] of the decision of Martin J in Kim, and submitted that his Honour '…upheld that the power to award costs in an appeal under the WCR Act was conferred by section 545.';[107] and
  • thirdly, it referred to:
  1. –s 553 of the WCR Act, which provides that the Rules apply to an appeal under the WCR Act, and submitted that because r 70(1) of the Rules provides that r 70 applies if the '… court or commission makes an order for costs' under s 545 of the IR Act, that '… seems to contemplate the legislation under 553 contemplating that 545 could apply to an appeal under the WCR Act';[108] and
  1. –s 487 of the IR Act, which confers discretion on the Commission to refer a question of law to the Court, and submitted that provision is:

[A]n example that would make sense if the provisions of the Industrial Relations Act can apply to an appeal under the WCR Act. We would submit that it's perfectly appropriate that the Commission should have that power in an appeal under the WCR Act.'[109]

  1. [86]
    I do not accept Johnston's submissions. This is for five reasons.

On the construction of the IR Act and the WCR Act, the Parliamentary intention is clear in that there is no intention that s 545 of the IR Act confers power on the Commission to make a costs order in respect of appeals to it under ch 13, pt 3, div 1 of the WCR Act

  1. [87]
    Section 545 of the IR Act is set out earlier in these reasons.
  1. [88]
    In Commissioner of Police for New South Wales v Eaton ('Eaton'),[110] Crennan, Kiefel and Bell JJ dealt with the approach to the construction of two statutes that share a field of operation. In this regard, their Honours stated (footnotes omitted):
  1. 45
    Argument on the appeal proceeded upon the basis that the two statutes should be read together, in order to determine whether there is any relevant inconsistency in their respective operation. The question of the relationship between the two statutes is one of legislative intention. In Associated Minerals Consolidated Ltd v Wyong Shire Council, Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier:

“The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?”

In the Court of Appeal, Handley A-JA concluded, by reference to the above passage, that Pt 6 of the IR Act added another layer of legislation to the Police Act.

  1. 46
    Lord Wilberforce went on to observe that discussion of these matters commonly involves consideration of the rule of construction which presumes that a later, general enactment is not intended to interfere with an earlier, special provision unless it manifests that intention very clearly. Even so, the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted “from all available indications”.
  1. [89]
    I referred to these paragraphs in Eaton as authority for the statement I made in paragraph [23] of Wicks No. 2.[111]
  1. [90]
    Johnston submits my reliance on these passages in Eaton ignores a further statement made by Crennan, Kiefel and Bell JJ at paragraph [48] of Eaton. That was that the law presumes that statutes do not contradict one another and the question is not whether one law prevails but whether the presumption is displaced. Reference was made to this statement in support of Johnston's submission, that while s 545 of the IR Act may conflict with s 558(3) of the WCR Act, s 545 of the IR Act still has application (to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act) outside the areas of conflict because it was seeking the costs of the appeal and not the costs of the hearing.
  1. [91]
    However, in Eaton, what Crennan, Kiefel and Bell JJ did state at paragraph [48] was (footnotes omitted):
  1. 48
    In Ferdinands, Gummow and Hayne JJ pointed out that inconsistency was at the root of the principle of implied repeal. This is true also where the question is one of possible amendment where a later statute is said to operate upon an earlier statute. However, as their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced. Their Honours considered that the two statutes in question in that case could be accommodated by reading into the Industrial and Employee Relations Act 1994 the matters that the Police Commissioner of the South Australian Police would take into account in exercising the power of dismissal; but there were other features of the statutes which were also important. Their Honours said that deciding whether the two statutes could not “stand or live together” in the relevant respect “requires the construction of, and close attention to, the particular provisions in question”.[112]
  1. [92]
    Thus, whether the matter of construction is approached on the basis of considering whether a later general Act manifests an intention not to interfere with an earlier specific Act, or whether it is approached on the basis of whether the presumption, that two statutes do not contradict each other, is displaced, both approaches require close attention to the provisions in question.
  1. [93]
    This same issue was further addressed by the High Court in Commissioner of Police for New South Wales v Cottle ('Cottle').[113] In that case, Kiefel CJ, Keane, Gordon and Steward JJ, after referring to the decision of Crennan, Kiefel and Bell JJ at paragraph [45] of Eaton, relevantly stated (footnotes omitted):
  1. 23
    After consideration of this Court’s decision in Ferdinands v Commissioner for Public Employment, the plurality in Eaton referred to the presumption that statutes do not contradict one another. In that respect, the principle that an Act of Parliament should be construed in a way that best achieves a harmonious result also informs the construction of two statutes which may share a field of operation. Nonetheless, if, properly construed, it is concluded that the two statutes or provisions cannot “stand or live together”, the presumption is displaced. That “requires the construction of, and close attention to, the particular provisions in question”. Ultimately:

“the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted ‘from all available indications’.”

  1. [94]
    At no point did Johnston, in its written or oral submissions, expressly deal with the issue identified by the High Court in Eaton and Cottle; namely, having regard to the particular provisions of the IR Act and the WCR Act in question, the determination of the legislative intention about the shared field of operation of the power of the Commission to make an order for costs, extracted from all available indications.
  1. [95]
    In Wicks No. 2,  in paragraphs  [23]  to [34],  I gave detailed consideration to the relevant provisions in the IR Act, and in the WCR Act, in answering the question of the legislative intention in respect of the shared field of operation of the power of the Commission to make an order for costs. I do not consider that analysis to be incorrect. Johnston has not challenged that specific analysis and has not advanced any contrary analysis about those provisions. 
  1. [96]
    I adopt that same analysis, in Wicks No. 2, in these proceedings to conclude that:
  • a contrary intention appears in the WCR Act about the power of the Commission to make an order for costs in respect of an appeal made to it under ch 13, pt 3, div 1 of the WCR Act; and
  • as a consequence, s 545 of the IR Act gives way to the contrary, specific powers in s 558(3) of the WCR Act and s 132 of the Regulation about the Commission's power to award costs in respect of an appeal made to it under ch 13, pt 3, div 1 of the WCR Act.
  1. [97]
    Furthermore, for the reasons I have given earlier in paragraphs [36] to [47], the question about whether or not s 545 of the IR Act has application to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act, was not a matter in issue in Kim. That decision is not binding on the Commission as to the applicability of s 545(2)(a) of the IR Act in respect of appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act. Further, the analysis I undertook in Wicks No. 2 at paragraphs [23] to [34], having regard to the principles set out in Eaton, was not undertaken in Kim.

Johnston's submissions, in part, go to an assumption about the desired or desirable reach or operation of the relevant provisions, rather than from what the relevant provisions say

  1. [98]
    As set out in the last dot point in paragraph [81] above, Johnston submits that to the extent that there is inconsistency between the provisions, s 558(3) of the WCR Act governs the costs of the hearing but '… outside the costs of the hearing of the appeal', s 545 of the IR Act '… alone applies':
  • which '… has the practical advantage of giving the Commission power to deal with all the costs of the appeal, not just costs of the hearing of the appeal'; and
  • which '… is desirable in the public interest.'
  1. [99]
    In Certain Lloyd's Underwriters v Cross,[114] French CJ and Hayne J relevantly stated (footnotes omitted):
  1. 26
    A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.” (Emphasis added.)

And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.” (Footnote omitted.)

  1. [100]
    The submissions of Johnston, referred to in the last dot point in paragraph [81] of these reasons, invite the contravention of this principle.  The purposes of the costs provisions in the IR Act and in the WCR Act are derived from the statutory text and not from any desirable reach influenced by the consideration of unreferenced notions of practicality or of the public interest. 

Johnston's submissions, if accepted, would produce results that are inconsistent with a construction that best achieves the purpose of the legislation

  1. [101]
    Section 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The language that has actually been employed in the text of the legislation is the surest guide to legislative intention.[115]
  1. [102]
    Chapter 13 of the WCR Act deals with reviews and appeals and pt 3, div 1 of that chapter relevantly deals with appeals to the Commission against certain review decisions of the Regulator.  Chapter 13, pt 3, div 1 contains s 558 which provides:

558  Powers of appeal body

  1. In deciding an appeal, the appeal body may–
  1. confirm the decision; or
  1. vary the decision; or
  1. set aside the decision and substitute another decision; or
  1. set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. If the appeal body WCR Acts under subsection (1)(b) or (c), the decision is taken for this WCR Act, other than this part, to be the decision of the insurer.
  1. Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.[116]
  1. [103]
    Part 8 of the Regulation relevantly provides:

Part 8 Costs

Division 1  Proceeding before industrial magistrate or industrial commission

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.
  1. If the magistrate or commission awards costs–
  1. 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
  1. costs in relation to witnesses’ fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and
  1. costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.
  1. 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–
  1. the work involved; or
  1. the importance, difficulty or complexity of the matter to which the proceeding relates.

133  Payment of additional amount for costs

  1. This section applies if–
  1. the Regulator or an insurer is required to pay costs in a proceeding in relation to a witness who–
  1. is a medical practitioner; or
  1. gives evidence of a professional nature; and
  1. 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.
  1. 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.
  1. [104]
    In the course of argument, in answer to a question from me, Johnston accepted that its contentions meant that:
  • if there was no hearing of an appeal commenced under ch 13, pt 3, div 1 of the WCR Act to the Commission, but a respondent capitulates prior to the hearing of the appeal, and the Commission is satisfied one of the circumstances in s 545(2)(a) of the IR Act applies, the Commission has a discretion to award an appellant costs on a scale, such as the scale of costs for the Supreme Court and District Court under sch 1 to the Uniform Civil Procedure Rules 1999 ('UCPR'), (including awarding costs on the indemnity basis);[117] yet
  • if there was a hearing of an appeal where the appellant was successful, the Commission is limited to awarding the appellant the costs of the hearing allowable under the combined effect of s 558(3) of the WCR Act and s 132(2) of the Regulation, namely, costs in relation to counsel's or solicitor's fees under the UCPR, sch 2, pt 2, scale C, with a potential uplift on those costs of 50% pursuant to s 132(3) of the Regulation. [118]
  1. [105]
    There is no statutory text in the WCR Act that points to such a legislative intention. A construction of the relevant provisions, that gives rise to the scenario set out above, is not one that best achieves the purpose of the combined effect of s 558(3) of the WCR Act and s 132 of the Regulation.  This is because, for the reasons I have given earlier, s 545 of the IR Act gives way to the contrary, specific powers in s 558(3) of the WCR Act and s 132 of the Regulation about the Commission's power to award costs in respect of an appeal made to it under ch 13, pt 3, div 1 of the WCR Act. The Parliament has been deliberate in restricting the power of the Commission to make costs orders in respect of appeals made to it under ch 13, pt 3, div 1 of the WCR Act.
  1. [106]
    Johnston also submitted that the phrase '…to the extent provided under a regulation' contained in s 558(3) of the WCR Act only constrains the Commission's power to award costs to those referenced in s 132(2) of the Regulation, such that in respect of items of costs outside of the prescribed counsel's fees and solicitor's fees, witnesses' fees and expenses, and bailiff's fees, the Commission could order those items of costs on the indemnity basis.[119]
  1. [107]
    I cannot accept Johnston's submission. Again, the language that has actually been employed in the text of the legislation is the surest guide to legislative intention. On the plain words used, and reading s 558(3) of the WCR Act as a whole, the appeal body's unfettered discretion to make an order about the costs of the hearing is constrained by the applicable regulation. This is clear by the use of the phrase '… except to the extent provided under a regulation.' There is no statutory text that indicates that outside of what is provided under the Regulation, the appeal body can include, in a costs order, any items it wants from another scale of costs.
  1. [108]
    Further, it is the whole of the applicable part of the Regulation that limits the appeal body's discretion about the costs of the hearing, not certain sections of the applicable part of the Regulation. There is no statutory text that indicates only certain sections of the Regulation limit the appeal body's discretion. Johnston's submissions ignore the clear words of s 558(3) and the fact that the Regulation also includes s 132(3) and s 133 (as set out above) which also control the discretion of an appeal body about the costs of the hearing.

While QNMU is not binding authority that s 545 of the IR Act is not a source of power for the Commission to make an order as to costs in appeals to it under ch 13, pt 3, div 1 of the WCR Act, it is persuasive authority

  1. [109]
    For the reasons I have given earlier, QNMU is not binding authority that s 545 of the IR Act is not a source of power for the Commission to make an order as to costs in appeals to it under ch 13, pt 3, div 1 of the WCR Act. However, it is a decision of the President of the Court in respect of which the application of s 545 of the IR Act, to such appeals before the Commission, was addressed.
  1. [110]
    Further, in support of the statement by the President, that '…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'[120] his Honour cited the decision of Sofronoff P in Glass.[121]
  1. [111]
    Again, for the reasons I have given earlier, paragraphs [12] and [13] of the decision in Glass provide support for the contention that the costs provisions in the IR Act have no application to appeals under ch 13, pt 3, div 1 of the WCR Act. The decision of the President in QNMU is persuasive authority for the proposition that s 545 of the IR Act has no application to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act.

Johnston's other arguments about Gillow, the effect of s 553 of the WCR Act and r 70 of the Rules, McEnearney, and s 487 of the IR Act, are without merit

  1. [112]
    In Wicks No 2, I held (footnotes omitted):
  1. [33]
    In respect of the conduct of an appeal under ch 13, pt 3, div 1 of the WCR Act, the provisions in that division, plus the applicable provisions in the UCPR and the Rules, effectively provide a complete statement of the matters necessary for the conduct of such an appeal, such that a contrary intention appears and the IR Act does not apply. The reasoning I have referred to in paragraphs [24]-[30] above demonstrates the contrary intention appearing in the WCR Act and the WC Regulation as to the power of the Commission to make a costs order for an appeal under ch 13, pt 3, div 1 of the WCR Act.
  1. [113]
    I cited Gillow as authority for the proposition contained in the first sentence of paragraph [33] of Wicks No. 2. In Gillow, Martin J held:
  1. [52]
    An examination of the provisions of Chapter 13 Part 2 of the WCR Act discloses a series of provisions which, together with the parts of the UCPR and the IRTR which are made to apply, effectively provides a complete statement of the matters necessary for the conduct of an appeal. The completeness of these provisions leads to the conclusion that “the contrary intention appears” and s 677 of the IR Act does not apply. 
  1. [114]
    Martin J was referring to s 677 of the Industrial Relations Act 1999, the equivalent of which is s 553 of the IR Act, which provides:

553  General application of provisions

The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this Act or another Act, unless the contrary intention appears.

  1. [115]
    The statement of Martin J in Gillow at [52] went further than the mere issue of the right of a non-party, to an appeal under ch 13, pt 3, div 1 of the WCR Act, to appeal to the Court.
  1. [116]
    Section 553(1) of the WCR Act provides the Rules apply to an appeal under ch 13, pt 3, div 1 of the WCR Act '… with necessary changes.' Part 2, sub-div 10 of the Rules provides:

Subdivision 10  Costs

70  Costs

  1. This rule applies if the court or commission makes an order for costs under section 545 of the Act or the Work Health and Safety Act 2011, section 229EA.
  1. The court or commission, in making the order, may have regard to–
  1. for a proceeding before the commission–the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 2; or
  1. for a proceeding before the court or the full bench–the costs payable on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
  1. any other relevant factor.
  1. The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.
  1. [117]
    These provisions have no relevant effect on appeals to the Commission under ch 13,            pt 3, div 1 of the WCR Act. This is because, for the reasons I have given earlier, s 545 of the IR Act does not apply to such appeals. In any event, in light of the combined effect of s 558(3) of the WCR Act and s 132 of the Regulation, a necessary change would mean that r 70 of the Rules does not apply to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act.
  1. [118]
    In respect of Johnston's submission about the decision in McEnearney, two matters arise.
  1. [119]
    First, Martin J's decision in paragraphs [10] and [11] in McEnearney did not deal with the construction of the IR Act and the WCR Act, in respect of the operation of the shared field of costs, for the purpose of obtaining the relevant legislative intention.
  1. [120]
    Secondly, it seems to be the case from paragraphs [8] to [12] of the decision in McEnearney, including the reference to the argument about Gillow in paragraph [10], that Martin J considered that s 274 of the Industrial Relations Act 1999 conferred power on the Commission to give leave to a non-party to intervene in an appeal under ch 13, pt 3, div 1 of the WCR Act, because no contrary intention appeared in the WCR Act. In any event, merely because s 274 of the Industrial Relations Act 1999 may have conferred power on the Commission to give leave to a non-party to intervene in an appeal under ch 13, pt 3, div 1 of the WCR Act, that cannot supplant the correct ascertainment of the legislative intention, by having regard to the relevant provisions of the IR Act and the WCR Act, in respect of the operation of the shared field of costs.
  1. [121]
    Finally, I am not persuaded that that s 487 of the IR Act, which confers discretion on the Commission to refer a question of law to the Court,  has application to appeals under ch 13, pt 3, div 1 of the WCR Act. Johnston made no detailed submissions, going to the construction of the IR Act and the WCR Act, so as to establish the relevant legislative intention that s 487 of the IR Act has such application. It was assumed. Again, even if s 487 of the IR Act confers power on the Commission to refer a question of law to the Court in respect of an appeal under ch 13, pt 3, div 1 of the WCR Act, the mere existence of such a power cannot supplant the correct ascertainment of the legislative intention in respect of the operation of the shared field of costs in the IR Act and the WCR Act.
  1. [122]
    For all the reasons I have given, s 545 of the IR Act has no application to appeals under ch 13, pt 3, div 1 of the WCR Act.

In the circumstances of the present case, does s 132 of the Regulation confer discretion on the Commission to make a costs order in favour of Johnston against Ms Durston and against the Regulator?

The parties' submissions

  1. [123]
    In its written submissions, Johnston submits that:
  • in Johnston costs No. 1, at paragraphs [14] and [16], I confirmed my view that s 132(1) of the Regulation 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 under ch 13, pt 3, div 1 of the WCR Act;[122]
  • those observations '… would apply with equal strength to a circumstance, where, as here, the Respondents have conceded the appeal and consented to orders allowing the appeal (and substituting a decision that the Second Respondent's claim is not one for acceptance)';[123] and
  • the Regulator and Ms Durston do not contest that s 132 of the Regulation provides an independent source of power to award costs '…in respect of this appeal.'[124]
  1. [124]
    In oral submissions, Johnston then submitted that:
  • in respect of s 132(1) of the Regulation, the focus is on the words '… costs of a proceeding';[125]
  • its argument is '… that the appeal is a proceeding for the purpose of' s 132 of the Regulation, and therefore '…the costs of the whole appeal can be awarded pursuant to that regulation';[126] and
  • it adopted what I said in paragraphs [69]-[71] in Wicks No. 2 about the word 'proceeding' namely, that reading the WCR Act and the Acts Interpretation Act 1954 together, the word 'proceeding' means a legal or other action in a proceeding.[127]
  1. [125]
    In support of its submission referred to in the last dot point in paragraph [124] immediately above, Johnston further submitted:

And your Honour reached that conclusion particularly at paragraph 71:

The present is an appeal brought pursuant to section 549 of the WCR Act. So the WCR Act allows a party, such as an employer, to appeal against the decision of a regulator and this is therefore a legal proceeding because it is (1) authorised by the legislation.[128]

  1. [126]
    Johnston advanced no other basis upon which the discretion, contained in s 132(1) of the Regulation, was enlivened.
  1. [127]
    The Regulator submitted that the actions it took, in consenting to Johnston's appeal  following the late disclosure of material from Johnston, did not warrant the Commission exercising discretion to make a costs order against it.[129]
  1. [128]
    Ms Durston made no specific submissions about s 132 of the Regulation, but she did submit that costs should follow the event and that the Regulator should be responsible for Johnston's costs.[130]
  1. [129]
    The issues raised by these submissions require:
  • a consideration of what I did in fact decide in Wicks No. 2 and in Johnston costs No. 1 and the matters in issue in those two cases; and
  • the construction of s 132(1) of the Regulation and the application of the facts of the present case to s 132(1) of the Regulation.

What I did in fact decide in Wicks No. 2 and in Johnston costs No. 1 and the matters in issue in those two cases

  1. [130]
    The written and oral submissions made by Johnston, to which I have referred above, do not accurately reflect what I did in fact state in Wicks No. 2 and in Johnston costs No. 1.
  1. [131]
    Johnston's submission about what I stated in Wicks No. 2 at paragraph [71] is not accurate. What I in fact stated was (footnotes omitted):
  1. [69]
    The noun 'proceeding' is not defined in the WCR Act or in the WC Regulation. However, by the combined effect of s 36 and sch 1 to the Acts Interpretation Act 1954, it is defined in the WC Regulation in the following way:

proceeding means a legal or other action or proceeding.

  1. [70]
    There is no contrary intention shown in the WC Regulation as to why that definition should not apply.
  1. [71]
    In my view, 'a proceeding', within the meaning of s 132(1) of the WC Regulation means a legal or other action or proceeding commenced before an Industrial Magistrate or the Commission under the WCR Act.
  1. [72]
    Is an application within existing proceedings 'a proceeding' within the meaning of that section?
  1. [73]
    In general, a grant of power to a court to make orders as to costs will not, in the absence of the legislative indication to the contrary, be construed narrowly. This is because it is implied from the character of the donee of the power that the power will be exercised judicially and in accordance with established principles. The provision that I must construe is s 132(1) of the WC Regulation and not the costs provisions in the UCPR or in other legislation.
  1. [74]
    In my opinion, an application in existing proceedings is a 'proceeding' as defined by the Acts Interpretation Act 1954. This is because it is a legal action. There is nothing in s 132(1) of the WC Regulation that indicates that the phrase '… costs of a proceeding heard by …. the industrial commission' should be limited to the costs of an application that starts a proceeding as opposed to the costs of an application in existing proceedings. In the absence of clear words to the contrary, it would be an unduly narrow construction to hold that 'a proceeding heard' would exclude an application in existing proceedings. For these reasons, my view is that the Regulator's application was 'a proceeding heard' within the meaning of s 132(1) of the WC Regulation.
  1. [75]
    For the reasons given above, there is a discretionary power to make an order as to costs in relation to the Regulator's application.
  1. [132]
    I did not decide that an appeal under s 549 of the WCR Act was a proceeding for the purposes of s 132(1) of the Regulation. That matter was not in issue, and was not an issue, in Wicks No. 2.
  1. [133]
    What I stated in Johnston costs No. 1 at [14]-[16] was (footnotes omitted):
  1. [14]
    However, I continue to adhere to the view I expressed in Wicks, 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.
  1. [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.
  1. [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.
  1. [134]
    There is nothing that I said in Johnston costs No. 1 that indicates that what I stated in paragraphs [14] and [16] of that decision apply with equal strength to the circumstances where a respondent concedes an appeal and consents to orders allowing the appeal. Those were not the circumstances in issue in Johnston costs No. 1.

The construction of s 132(1) of the Regulation and the application of the facts of the present case to s 132(1) of the Regulation

  1. [135]
    Section 132 of the Regulation is set out earlier in these reasons.
  1. [136]
    Section 132(1) of the Regulation provides that 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.'
  1. [137]
    Delegated legislation, such as a regulation, is to be construed according to the ordinary principles of construction.[131] Further, having regard to s 7 of the Statutory Instruments Act 1992, the Regulation is a statutory instrument within the meaning of that Act. As such, by s 14(1) of the Statutory Instruments Act 1992, certain provisions of the Acts Interpretation Act 1954, mentioned in sch 1 to the Statutory Instruments Act 1992, apply to statutory instruments in the same way as they apply to an Act as if a reference to an Act included a reference to a statutory instrument. One such provision mentioned in sch 1 to the Statutory Instruments Act 1992 is s 14A(1) of the Acts Interpretation Act 1954 to which reference was made earlier in these reasons.
  1. [138]
    Therefore, the construction of s 132(1) of the Regulation:

[M]ust "begin with a consideration of the text itself", that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.[132]

  1. [139]
    In particular, in construing a statute, a court cannot consider any word or sentence in a statute as superfluous or insignificant. In Project Blue Sky Inc v Australian Broadcasting Authority,[133] McHugh, Gummow, Kirby and Hayne JJ stated (footnotes omitted):
  1. 71.
    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
  1. [140]
    Further, in respect of provisions that confer the power to award costs, Kirby J stated in Re JJT; ex parte Victoria Legal Aid[134] (footnotes omitted):
  1. 41
    Before considering each of these suggested sources of the power, a few general propositions may be accepted:
  1. 1.
    There was no power to order costs at common law. The source of the power must therefore be found in legislation. Accordingly, the primary task before the Court in this part of the case, is to examine the provisions of the Act relied upon and to consider whether those provisions, or any of them, sustain the order.
  1. 2.
    Statutory powers providing for costs appear in a multitude of forms. Although the word "costs" may import notions of a general kind from the forms of orders which have been made in courts of law for centuries, such preconceptions must not distract the Court from the task of construction which each statutory provision for costs invokes. As with any other legislative measure, the law in question must be construed to achieve its identified purposes. A section empowering orders for costs will be construed in the context of any peculiarities of the legislation in which it appears.
  1. [141]
    Applying these principles to the construction of s 132 of the Regulation, I determine that:
  • having regard to the statutory text, the purpose of s 132(1) of the Regulation is to confer discretion on an industrial magistrate or the Commission to make a decision to award costs of a proceeding heard by an  industrial magistrate or the Commission under the WCR Act;
  • the discretion to decide to award costs is only triggered in respect of '…a proceeding heard by an industrial magistrate or the industrial commission';
  • in context, the use of the phrase '…proceeding heard':
  1. –can only mean a hearing of a proceeding that has in fact taken place before an industrial magistrate or the Commission; and
  1. –having regard to the ordinary principles of procedural fairness, concerns such a proceeding where, at least, the parties were given an opportunity to make submissions to an industrial magistrate or the Commission about the parties' respective claims the subject of the proceeding; and
  • the costs that can be awarded of the proceeding heard by an industrial magistrate or the Commission are those contained in s 132(2), s 132(3) and s 133 of the Regulation.
  1. [142]
    As I found on the facts in Wicks No. 2, '…a proceeding' within the meaning of s 132(1) of the Regulation includes an application in an existing proceeding.[135] Johnston does not challenge that part of that decision.
  1. [143]
    Leaving aside the inaccurate submissions made by Johnston about my decisions in Wicks No. 2 and Johnston costs No. 1, Johnston's claim for costs under s 132(1) of the Regulation cannot succeed.
  1. [144]
    Johnston's submission about the application of s 132(1) of the Regulation is that its appeal is a proceeding for the purpose of s 132 of the Regulation and therefore '…the costs of the whole appeal can be awarded pursuant to that regulation.' This submission ignores the statutory text in s 132(1) of the Regulation and, in particular, ignores, or treats as superfluous, the phrase '… proceeding heard by an industrial magistrate or the industrial commission.' Pursuant to s 132(1) of the Regulation, the discretion to decide to award costs is only enlivened in respect of a proceeding heard by an industrial magistrate or the Commission.
  1. [145]
    Unlike the facts in Wicks No. 2 and in Johnston costs No. 1, where there were hearings before me,[136] in respect of Johnston's appeal, there has been no appeal heard by me and no proceeding heard by me, other than the hearing leading to my decision in Johnston costs No. 1 and the hearing the subject of the present applications for costs. As Johnston stated in its oral submissions about its claims for costs pursuant to s 545 of the IR Act, '…the present appeal didn't have a hearing and so we're arguing for costs of the appeal other than the hearing.'[137]
  1. [146]
    For these reasons, Johnston's submissions that its appeal is a proceeding for the purpose of s 132 of the Regulation, such that costs of the whole appeal can be awarded pursuant to the Regulation, cannot succeed. My discretion to award costs under s 132(1) of the Regulation cannot be enlivened in the particular circumstances of this case where there was no hearing and the appeal was determined by a consent order in the circumstances described in paragraph [19] of these reasons.
  1. [147]
    In Cliffs Robe River Iron Associates v Dravo Pty Ltd,[138] Wallace J considered what was meant by the term 'consent order' and relevantly stated:[139]

The so-called binding agreement between the parties to which the RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2024] QIRC 265respondent adverts does not in my opinion exist. All that occurred is that the RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2024] QIRC 265respondent took out a summons to defer the delivery of its statement of defence until such time as its representatives had had the opportunity to inspect the damaged plant. As I read the papers the two solicitors conferred for the purpose of formulating an order which could be made without RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2024] QIRC 265argument. The position is that adverted to by Lord Greene, Master of the RW & G Johnston Pty Ltd v Workers' Compensation Regulator [2024] QIRC 265Rolls, in Chandless-Chandless v Nicholson [1942] 2 KB 321 at 324 wherein the Master of the Rolls defined what was said by "consent orders":

"One meaning is this: the words 'by consent' may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean 'the parties hereto not objecting'.[140]

  1. [148]
    It is the latter case, referred to by Lord Greene, which describes the present case. Johnston's appeal was determined by way of a consent order made by me.  In the circumstances of this case, the consent order was made by me without argument and by the parties not objecting. Other than the hearings to which I have referred in paragraph [145], there was no other hearing before me of any contested matter, either on the papers or by way of oral submissions, in respect of Johnston's appeal. That is, in respect of Johnston's appeal, there was no relevant '…proceeding heard by' the Commission.
  1. [149]
    For these reasons, my discretion to award costs, pursuant to s 132(1) of the Regulation, as against Ms Durston or as against the Regulator, is not enlivened.

If the Commission does have discretion to make a costs order in favour of Johnston against Ms Durston and, or in the alternative, the Regulator, should that discretion be exercised and to what extent?

  1. [150]
    For the  reasons I have given, no discretion of the Commission to make an order for costs, as against Ms Durston or as against the Regulator, has been enlivened.

Conclusion

  1. [151]
    In its written and oral submissions, Johnston, having regard to the affidavit material filed by it and by Ms Durston, made detailed submissions as to why it was just that costs orders be made in its favour against Ms Durston and the Regulator. Whatever the merit of those arguments may be, they were made on the basis that the Commission did have an enlivened discretion to make orders for costs.  
  1. [152]
    For the reasons I have given:
  • s 545 of the IR Act does not apply to appeals to the Commission under ch 13, pt 3, div 1 of the WCR Act; and
  • on the facts of the present case, my discretion to make any decision to award costs in Johnston's favour, pursuant to s 132(1) of the Regulation, has not been enlivened.
  1. [153]
    For those reasons:
  • Johnston's application for costs against the Regulator is dismissed;
  • Johnston's application for costs against Ms Durston is dismissed.
  1. [154]
    The Regulator sought, depending on the outcome of the costs hearing, its costs of the costs hearing.[141] The costs hearing was as a result of the applications made by Johnston for costs against Ms Durston and the Regulator, and they would fall within the meaning of '… a proceeding heard' in s 132(1) of the Regulation. A decision to award such costs is in my discretion. While costs usually follow the event, I decline to award the Regulator its costs of the costs hearing. The Regulator did not succeed in resisting Johnston's application for costs made against it on the basis of the submissions it advanced. For this reason, I decline to make an order that Johnston pays the Regulator's costs of the costs hearing.

Orders

  1. [155]
    I make the following orders:
  1. The Appellant's application for costs against the First Respondent is dismissed.
  1. The Appellant's application for costs against the Second Respondent is dismissed.
  1. The First Respondent's application for costs of the hearing of the proceedings on 22 March 2024 is dismissed.

Footnotes

[1] T 1-3, l 46 to T 1-4, l 6.

[2] T 1-3, ll 23-40.

[3] The affidavit of Paul Anthony Edward Everingham filed on 13 October 2023 ('Mr Everingham's first affidavit'), exhibit 'PAE 10'.

[4] T (24 March 2023) 1-6, ll 17-31.

[5] The affidavit of Kane Jacob Stegeman filed on 20 October 2023 ('Mr Stegeman's affidavit'), para. 24.

[6] Mr Stegeman's affidavit, para. 26.

[7] T(26 April 2023), 1-3, ll 1-11.

[8] [2023] QIRC 156 ('Johnston costs No. 1').

[9] [2021] QIRC 112 ('Wicks No. 2').

[10] Johnston costs No. 1 (n 8) [14]-[15].

[11] Footnotes omitted.

[12] Mr Stegeman's affidavit, para. 58 and exhibit 'KJS41'.

[13] Mr Stegeman's affidavit, paras. 59 to 62.

[14] Mr Stegeman's affidavit, para. 63 and exhibit 'KJS46'.

[15] T (4 October 2023) 1-2, l 27 to T 1-8, l 20.

[16] T (4 October 2023) 1-8, ll 22-24.

[17] Citing Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 ('QNMU') [27]-[28] Davis J, President and Wicks No. 2 (n 9)[20]-[34].

[18] The written submissions of RW & G Johnston Pty Ltd filed on 3 January 2024 ('Johnston's principal submissions'), para. 19.

[19] A reference to the Industrial Relations Act 1999.

[20] Explanatory Notes, Industrial Relations Bill 2016 (Qld), 87.

[21] [2019] ICQ 14 ('Kim'), [55].

[22] Johnston's principal submissions, paras. 22-23.

[23] Johnston's principal submissions, para. 24, citing Commissioner of Police of New South Wales v Eaton [2013] HCA 2; (2013) 252 CLR 1 ('Eaton'), [48] (Crennan, Kiefel and Bell JJ), which in turn referred to Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130, [49] (Gummow and Hayne JJ).

[24] Wicks No. 2 (n 9) [20]-[34].

[25] QNMU (n 17), [27]-[28].

[26] Johnston's principal submissions, para. 25.

[27] The written submissions in reply of RW & G Johnston Pty Ltd filed on 13 March 2024 ('Johnston's reply submissions'), paras. 1-2.

[28] At that time, President of the Industrial Court of Queensland.

[29] T 1-13, ll 33-35.

[30] T 1-16, ll 42-45.

[31] Section 549 of the Workers' Compensation and Rehabilitation Act 2003 provides:

  1. 549 Who may appeal
  1. (1)
    A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent).
  1. (2)
    An insurer aggrieved by a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi) may appeal to an appeal body against the decision of the Regulator.
  1. (3)
    If the appellant is an employer—
  1. (a)
    the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and
  2. (b)an insurer may, if the insurer wishes, be a party to the appeal if the appeal is against a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi).
  1. (4)
    If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.

[32] Kim (n 21), [53]-[56] (Martin J, President).

[33] [2017] ICQ 005 ('Gambaro'), [49] (Martin J, President).

[34] Johnston's reply submissions, para. 2.

[35] Kim (n 21).

[36] The written submissions of the Workers' Compensation Regulator filed on 19 February 2024 ('the Regulator's submissions'), para. 13.

[37] T 1-40, l 10 to T 1-42, l 8.

[38] T 1-42, l 35 to T1-45, l 42.

[39] The written submissions of Ms Peta Durston filed on 16 February 2024 ('Ms Durston's submissions'), paras. 9-10.

[40] T 1-49, ll 7-8.

[41] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, [60] (McHugh J).

[42] Ibid.

[43] Kim, Insung v Workers' Compensation Regulator [2018] QIRC 048, [2], [13] and [40].

[44] Ibid [41].

[45] Kim (n 21), [12].

[46] Kim (n 21) [52].

[47] Ibid [54].

[48] Ibid [55].

[49] [2004] HCA 39; (2004) 220 CLR 1, [79].

[50] [2005] HCA 64; (2005) 226 CLR 1, [13].

[51] See also Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333, [28] ( Kiefel CJ, Bell, Keane and Gordon JJ) and Batak v R [2024] NSWCCA 66, [140] (Kirk JA, Wilson and Ierace JJ).

[52] Gambaro v the Workers' Compensation Regulator [2017] QIRC 033, [1] (Industrial Commissioner Fisher).

[53] Ibid, [105].

[54] Gambaro (n 33) [49].

[55] Gambaro (n 33) [51].

[56] Johnston's principal submissions, para. 29.

[57] Footnotes omitted.

[58] Johnston's principal submissions, para. 30.

[59] Johnston's principal submissions, para. 31. Emphasis in the original.

[60] Johnston's principal submissions, para. 32.

[61] Johnston's reply submissions, para. 3.

[62] Johnston's reply submissions, para. 3. Emphasis in the original.

[63] T 1-13, l 43 to T 1-14, l 24.

[64] T 1-14, ll 24 to 36.

[65] T 1-14, ll 38-39.

[66] T 1-17, ll 5-10.

[67] T 1-17, ll 12-26.

[68] Kim (n 21) [52]-[56].

[69] T 1-17, ll 27-30.

[70] [2020] QCA 133; (2020) 4 QR 693 ('Glass').

[71] T 1-17, l 41 to T 1-18, l 23.

[72] T 1-18, ll 23 to 24.

[73] T 1-18, ll 26-29.

[74] T 1-18, ll 31-33.

[75] Johnston's principal submissions, para. 35.

[76] QNMU (n 17) [16].

[77] Kim (n 21).

[78] QNMU (n 17) [13](4.) and [14](4.).

[79] Ibid [11]-[12] and [16]-[17].

[80] Ibid [17].

[81] Ibid [16].

[82] Ibid [27].

[83] Ibid [28].

[84] Glass (n 70).

[85] Ibid [1]-[[3].

[86] [1998] HCA 48; (1998) 194 CLR 395.

[87] Ibid [56].

[88] [2021] QIRC 001.

[89] Ibid [6].

[90] Ibid [56].

[91] [2019] ICQ 7 ('McEnearney').

[92] Citing Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 7 (Griffith CJ) and 14 (O'Connor J), Saraswati v R [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J) and R v Crossman [2011] QCA 126; [2011] 2 Qd R 435, [29] (Chesterman JA).

[93] Johnston's reply submissions, para. 1.

[94] T 1-18, ll 42-45.

[95] T 1-19, ll 7-19.

[96] T 1-19, ll 32-34.

[97] T 1-19, ll 36-43.

[98] Wicks No. 2 (n 9).

[99] [2016] ICQ 007; (2016) 255 IR 268.

[100] T 1-22, ll 36-39.

[101] T 1-23, ll 15-17.

[102] Johnston's principal submissions, para. 34.

[103] T 1-24, l 30.

[104] McEnearney (n 91).

[105] T 1-23, ll 9-24.

[106] T 1-23, ll 26-30.

[107] T 1-23, ll 32-37.

[108] T 1-24, ll 14-18.

[109] T 1-24, ll 29-42.

[110] Eaton (n 23).

[111] Namely:

[23]  First, where there is a conflict or inconsistency between general and specific provisions in two separate Acts, the presumed but rebuttable intention of Parliament is that the specific provisions prevail in relation to the subject matter.              .

[112] Emphasis added.

[113] [2022] HCA 7; (2022) 276 CLR 62.

[114] [2012] HCA 56; (2012) 248 CLR 378.

[115] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[116] Emphasis added.

[117] T 1-30 , ll 1-14.

[118] T 1-20, ll 3-11.

[119] T 1-62, ll 19-35.

[120] QNMU (n 17) [28].

[121] Glass (n 70).

[122] Johnston's principal submissions, para. 48.

[123] Johnston's principal submissions, para. 48.

[124] Johnston's reply submissions, para. 4.

[125] T 1-10, l 11.

[126] T 1-10, ll 11-13.

[127] T 1-10, ll 20-24.

[128] T 1-10, ll 24-29.

[129] The Regulator's submissions, paras. 14-18.

[130] Ms Durston's submissions, paras. [34]-[38].

[131] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) and Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101, [19] (Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ).

[132] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10, [21] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) (Citations omitted).

[133] [1998] HCA 28; (1998) 194 CLR 355.

[134] [1998] HCA 44; (1998) 195 CLR 184.

[135] Wicks No. 2 (n 9) [69]-[74].

[136] In respect of in Wicks No. 2 (n 9), the application in existing proceedings was heard on the papers. In respect of Johnston Costs No. 1 (n 8), the application for the adjournment was heard by way of oral submissions.

[137] T 1-19, ll 16-17.

[138] [1987] WASC 376; [1998] WAR 322. 

[139] Ibid 324 and see also Kennedy J at 329.

[140] Emphasis added. See also Four Oaks Enterprises Pty Ltd v Clark [2003] TASSC 70; (2003) 12 Tas R 125, [7]-[9] (Blow J) and Blundstone v Johnson & Anor [2010] QCA 148, [14] (Holmes JA, Chesterman JA at [20] and Atkinson J at [21] agreeing.

[141] T 1-59, l 30.

Close

Editorial Notes

  • Published Case Name:

    RW & G Johnston Pty Ltd v Workers' Compensation Regulator and Anor

  • Shortened Case Name:

    RW & G Johnston Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 265

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 Nov 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10
2 citations
Jump To
Cite 1 - [2024] HCA 10
Cite 2 - [2024] HCA 10
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
2 citations
Jump To
Cite 1 - [2009] HCA 41
Cite 2 - [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
2 citations
Jump To
Cite 1 - [2019] HCA 29
Cite 2 - [2019] HCA 29
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
2 citations
Jump To
Cite 1 - (2019) 269 CLR 333
Cite 2 - (2019) 269 CLR 333
Blundstone v Johnson [2010] QCA 148
2 citations
Jump To
Cite 1 - [2010] QCA 148
Cite 2 - [2010] QCA 148
Brisbane City Council v Gillow [2016] ICQ 7
2 citations
Jump To
Cite 1 - [2016] ICQ 7
Cite 2 - [2016] ICQ 7
Brisbane City Council v Gillow (2016) 255 IR 268
2 citations
Jump To
Cite 1 - (2016) 255 IR 268
Cite 2 - (2016) 255 IR 268
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Jump To
Cite 1 - [2012] HCA 56
Cite 2 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Chandless v Nicholson (1942) 2 KB 321
1 citation
Jump To
Cite 1 - (1942) 2 KB 321
Coleman v Power (2004) 220 CLR 1
2 citations
Jump To
Cite 1 - (2004) 220 CLR 1
Cite 2 - (2004) 220 CLR 1
Coleman v Power (2004) HCA 39
2 citations
Jump To
Cite 1 - (2004) HCA 39
Cite 2 - (2004) HCA 39
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
2 citations
Jump To
Cite 1 - (1996) 186 CLR 389
Cite 2 - (1996) 186 CLR 389
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36
2 citations
Jump To
Cite 1 - [1996] HCA 36
Cite 2 - [1996] HCA 36
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1
2 citations
Jump To
Cite 1 - (2013) 252 CLR 1
Cite 2 - (2013) 252 CLR 1
Commissioner of Police v Eaton [2013] HCA 2
2 citations
Jump To
Cite 1 - [2013] HCA 2
Cite 2 - [2013] HCA 2
CSR Limited v Eddy (2005) 226 CLR 1
2 citations
Jump To
Cite 1 - (2005) 226 CLR 1
Cite 2 - (2005) 226 CLR 1
CSR Ltd v Eddy [2005] HCA 64
2 citations
Jump To
Cite 1 - [2005] HCA 64
Cite 2 - [2005] HCA 64
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
2 citations
Jump To
Cite 1 - (2006) 225 CLR 130
Cite 2 - (2006) 225 CLR 130
Ferdinands v Commissioner for Public Employment [2006] HCA 5
2 citations
Jump To
Cite 1 - [2006] HCA 5
Cite 2 - [2006] HCA 5
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Gambaro v Workers' Compensation Regulator [2017] QIRC 33
2 citations
Jump To
Cite 1 - [2017] QIRC 33
Cite 2 - [2017] QIRC 33
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
2 citations
Jump To
Cite 1 - (1998) 194 CLR 395
Cite 2 - (1998) 194 CLR 395
Garcia v National Australia Bank Ltd (1998) HCA 48
2 citations
Jump To
Cite 1 - (1998) HCA 48
Cite 2 - (1998) HCA 48
Goodwin v Phillips (1908) 7 CLR 1
2 citations
Jump To
Cite 1 - (1908) 7 CLR 1
Cite 2 - (1908) 7 CLR 1
Goodwin v Phillips [1908] HCA 55
2 citations
Jump To
Cite 1 - [1908] HCA 55
Cite 2 - [1908] HCA 55
Kim v Workers' Compensation Regulator [2019] ICQ 14
2 citations
Jump To
Cite 1 - [2019] ICQ 14
Cite 2 - [2019] ICQ 14
Kim, Insung v Workers' Compensation Regulator [2018] QIRC 48
2 citations
Jump To
Cite 1 - [2018] QIRC 48
Cite 2 - [2018] QIRC 48
Master Education Services Pty Ltd v Ketchell [2008] HCA 38
2 citations
Jump To
Cite 1 - [2008] HCA 38
Cite 2 - [2008] HCA 38
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101
2 citations
Jump To
Cite 1 - (2008) 236 CLR 101
Cite 2 - (2008) 236 CLR 101
McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7
2 citations
Jump To
Cite 1 - [2019] ICQ 7
Cite 2 - [2019] ICQ 7
NSW Commissioner of Police v Cottle [2022] HCA 7
2 citations
Jump To
Cite 1 - [2022] HCA 7
Cite 2 - [2022] HCA 7
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v Crossman[2011] 2 Qd R 435; [2011] QCA 126
4 citations
Jump To
Cite 1 - [2011] QCA 126
Cite 2 - [2011] QCA 126
Cite 3 - [2011] 2 Qd R 435
Cite 4 - [2011] 2 Qd R 435
Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184
2 citations
Jump To
Cite 1 - (1998) 195 CLR 184
Cite 2 - (1998) 195 CLR 184
Re JJT; Ex Parte Victoria Legal Aid [1998] HCA 44
2 citations
Jump To
Cite 1 - [1998] HCA 44
Cite 2 - [1998] HCA 44
RW & G Johnston Pty Ltd v Workers Compensation Regulator [2023] QIRC 156
2 citations
Jump To
Cite 1 - [2023] QIRC 156
Cite 2 - [2023] QIRC 156
Saraswati v The Queen [1991] HCA 21
2 citations
Jump To
Cite 1 - [1991] HCA 21
Cite 2 - [1991] HCA 21
Saraswati v The Queen (1991) 172 C.L.R 1
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 1
Cite 2 - (1991) 172 C.L.R 1
Wicks v Workers' Compensation Regulator [2021] QIRC 1
2 citations
Jump To
Cite 1 - [2021] QIRC 1
Cite 2 - [2021] QIRC 1
Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 112
2 citations
Jump To
Cite 1 - [2021] QIRC 112
Cite 2 - [2021] QIRC 112
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
2 citations
Jump To
Cite 1 - [2004] HCA 16
Cite 2 - [2004] HCA 16
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
2 citations
Jump To
Cite 1 - (2004) 216 CLR 515
Cite 2 - (2004) 216 CLR 515
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
5 citations
Jump To
Cite 1 - [2020] QCA 133
Cite 2 - [2020] QCA 133
Cite 3 - (2020) 4 QR 693
Cite 4 - (2020) 4 QR 693
Cite 5 - (2020) 4 QR 693
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
2 citations
Jump To
Cite 1 - [2021] ICQ 13
Cite 2 - [2021] ICQ 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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