Rooke v Workers' Compensation Regulator No 2
[2024] QIRC 286
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- Unreported Judgment
- Rooke v Workers' Compensation Regulator No 2[2024] QIRC 286
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Rooke v Workers' Compensation Regulator No 2[2024] QIRC 286
Rooke v Workers' Compensation Regulator No 2[2024] QIRC 286
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rooke v Workers' Compensation Regulator No 2 [2024] QIRC 286 |
PARTIES: | Rooke, Leonard John (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2021/112 |
PROCEEDING: | Costs |
DELIVERED ON: | 5 December 2024 |
MEMBER: | O'Connor VP |
HEARD ON: | Decided without oral hearing |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL AGAINST REVIEW DECISION – COSTS OF HEARING – where decision of the respondent was confirmed in the hearing of appeal to the Queensland Industrial Relations Commission pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 – where respondent sought costs – where parties ordered to file submissions on the costs of the hearing pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 – whether costs should be awarded |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003, s 558 Industrial Relations (Tribunals) Rules 2011, r 41(1) Uniform Civil Procedure Rules 1999, Schedule 2 Workers' Compensation and Rehabilitation Regulation 2014, r 132 |
CASES: | Baigorri v Workers' Compensation Regulator (No 2) [2024] ICQ 7 Latoudis v Casey (1990) 170 CLR 534 Northern Territory v Sangare (2019) 265 CLR 164 Rooke v Workers' Compensation Regulator [2024] ICQ 021 Rooke v Workers' Compensation Regulator [2024] QIRC 089 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 |
Reasons for Decision
- [1]This is the determination of costs consequent upon the decision of Queensland Industrial Relations Commission ('the Commission') released on 22 April 2024 in which the decision of the Workers' Compensation Regulator ('the Respondent') dated 11 June 2021 was confirmed.[1]
- [2]In my decision of 22 April 2024 an order was made that costs be determined on the exchange of written submissions and unless otherwise ordered the decision on costs be determined on the papers.
- [3]Pursuant to the order, written submissions were filed by the Respondent on 13 May 2024. On even date the Appellant filed an Appeal in the Industrial Court of Queensland ('the Court').[2] Following release of the Court decision on 20 November 2024, in which the decision of the Commission dated 22 April 2024 was confirmed, the Appellant was provided with a further two weeks in which to file written submissions on the costs of the hearing in the Commission.
- [4]On 2 December 2024, the Appellant's legal representative advised their client does not intend to provide a submission with respect to costs.
- [5]It is submitted that as the Respondent was successful in the appeal before the Commission, there is no reason why the Appellant should not pay the Respondent's costs of the hearing.[3]
- [6]The Respondent seeks costs of $4,782.65 pursuant to Schedule 2 - Scale of costs - Magistrates Courts, Part 2, scale C of the Uniform Civil Procedure Rules 1999 (Qld) ('the UCPR') as applying at the time of the hearing on 22 and 23 November 2022 as follows:
Counsel's fee to appear at Trial hearing - first day[4] | $1,686.00 | |
Counsel's fee to appear at Trial hearing - second day[5] | $1,126.00 | |
Attendance of clerk with counsel each day[6] | $ 943.90 | |
Requesting disclosure[7] | $ 365.90 | |
Making disclosure[8] | $ 660.85 | |
Total | $4,782.65 |
- [7]In respect of disclosure, the Respondent relies on the decision of Baigorri v Workers' Compensation Regulator (No 2)[9] and submits it is entitled to claim for items 13(a)(i) and 13(a)(ii) of the UCPR.
- [8]According to Schedule 2 - Scale of costs - Magistrates Courts, Part 2, scale C of the UCPR, Item 10(b) for "attendance of clerk with counsel - each day" applicable as at the dates of hearing, the costs should be $306.75 each day for the two days of the hearing, totalling $613.50 and not $943.90 as claimed by the Respondent. The total amount of costs claimed should therefore be $4,452.25.
Consideration
- [9]Costs before the Commission are calculated in accordance with s 558(3) of the Workers' Compensation and Rehabilitation Act 2003, ('the WCR Act'); Schedule 2 - Scale of costs - Magistrates Courts, Part 2, scale C of the UCPR and r 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ('the WCR Regulation').
- [10]Section 558(3) of the WCR Act provides:
558 Powers of appeal body
…
- Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.
- [11]Regulation 132 of the WCR Regulation states the following:
132 Costs - proceeding before industrial magistrate or industrial commission
- A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission.
- If the magistrate or commission awards costs -
- costs in relation to counsel's or solicitor's fees are as under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, scale C; and
- costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and
- costs in relation to bailiff's fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.
- The magistrate or commission may allow costs up to 1.5 times the amounts provided for under subsection (2)(a), in total or in relation to any item, if the magistrate or commission is satisfied the amounts are inadequate having regard to -
- the work involved; or
- the importance, difficulty or complexity of the matter to which the proceeding relates.
- [12]Section 558 of the WCR Act and r 132 of the WCR Regulation provide the Commission the statutory power to award costs.
- [13]In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[10] Davis J was called upon to consider the proper construction of s 558(3) of the WCR Act. His Honour wrote:
[28] However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act. In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
[29] In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing".
[30] The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:
"1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."
[31] I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.
[32] Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.[11] (Citations omitted. Emphasis added)
- [14]The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission.[12] However, the discretion under s 558(3) is not unfettered.
- [15]Section 558(3) of the WCR Act ought to be read to limit the exercise of the discretion to the awarding of 'costs of the hearing'; and secondly, to the extent provided for in r 132 of the WCR Regulation.
- [16]The discretion to make an order for costs must be exercised judicially by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[13]
- [17]In Baigorri, a claim was sought for the costs of disclosure in the proceedings made pursuant to an order of the Commission. Davis J allowed a claim for costs of disclosure based upon the directions given by the Commission for the conduct of the proceedings.[14]
- [18]The award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.[15]
- [19]The discretion to award costs has been enlivened. No grounds have been advanced by the Appellant to persuade me not to exercise my discretion. There is no reason why the Appellant should not pay the Respondent's costs.
- [20]Accordingly, the Appellant should pay the Respondent costs fixed in the amount of $4,452.25.
- [21]It is ordered:
- The Appellant pay the Respondent's costs of the hearing fixed at $4,452.25 within 21 days of the date of this decision.
Footnotes
[1] Rooke v Workers' Compensation Regulator [2024] QIRC 089.
[2] Rooke v Workers' Compensation Regulator [2024] ICQ 021.
[3] Respondent's submissions filed 13 May 2024, [3].
[4] Uniform Civil Procedure Rules 1999, (Qld), Schedule 2, Part 2, scale C, 8(f).
[5] Ibid, 8(g).
[6] Ibid, 8(10(b)).
[7] Ibid, 8(13(a)(i)).
[8] Ibid, 8(13(a)(ii)).
[9] [2024] ICQ 7 at [8] (Baigorri).
[10] [2021] ICQ 13.
[11] Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13.
[12] Workers' Compensation and Rehabilitation Regulation 2014, r 132.
[13] Northern Territory v Sangare (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ).
[14] [2024] ICQ 7, [8].
[15] Latoudis v Casey (1990) 170 CLR 534, 543.