Adcock v Workers' Compensation Regulator (No. 2) - [2023] QIRC 266

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266
PARTIES:	Adcock, Malcolm (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/64
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	15 September 2023
MEMBER:	Power IC
HEARD AT:	On the papers
ORDER:	The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65
CATCHWORDS:	WORKERS' COMPENSATION – MISCELLANEOUS MATTERS – COSTS – appeal decision in favour of Appellant – where an order for costs made that Respondent pay the costs of an incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission – where parties do not agree on costs payable
LEGISLATION:	Industrial Relations Act 2016 (Qld), s 545 Uniform Civil Procedure (Fees) Regulation 2019 (Qld), pt 3, ss 25 and 27 Uniform Civil Procedure Rules 1999 (Qld), sch 2 pt 2 scale C Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 144A and 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld), s 132
CASES:	Adcock v Workers' Compensation Regulator [2021] QIRC 227 BM Alliance Coal Operations Pty Ltd v BCG Contracting Pty Ltd & Ors (2012) 1 Qd R 228 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Jackson v Purton [2011] TASSC 28 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Local Government Association of Queensland v Queensland Services Industrial Union of employees [2020] QIRC 068 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Truenergy Australia Pty Ltd v minister for Industrial Relations (2005) 93 SASR 393 Workers' Compensation Regulator v Adcock [2022] ICQ 016 Workers' Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 013

Reasons for Decision

On 25 June 2021, the reasons for decision were published in Adcock v Workers' Compensation Regulator ('the substantive decision').[1]
[1] [2021] QIRC 227.
In the substantive decision, the Commission as currently constituted made orders setting aside the decision of the Workers' Compensation Regulator ('the Respondent') and varying the Respondent's decision made pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). The following order was also made:
4. That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
The substantive decision was subsequently appealed by the Respondent. The appeal decision was delivered by President Davis on 24 May 2022 in Workers' Compensation Regulator v Adcock.[2]
[2] [2022] ICQ 016.
On 29 November 2022, Mr Malcolm Adcock's ('the Appellant') legal representative informed the Commission that the parties were unable to reach agreement with respect to the costs of the substantive decision.
Legislative framework

Section 558 of the WCR Act provides:
558 Powers of appeal body
(1)In deciding an appeal, the appeal body…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QIRC 266
Decision Date: 15 September 2023

CaseChat Overview and Summary

Adcock, the appellant, sought workers' compensation from the Workers' Compensation Regulator, the respondent. The dispute involved the assessment and payment of compensation for the appellant's work-related injury. The case was heard by the Queensland Industrial Relations Commission (QIRC), where the appellant successfully appealed the respondent's decision. The QIRC ordered the respondent to pay the costs of the appeal. After the appeal, the matter was heard by President Davis in the Queensland Magistrates' Court, who considered the scope of the costs order.

The primary legal issue was whether the QIRC's authority to award costs under the Workers' Compensation and Rehabilitation Act 2003 (Qld) extended to the costs of the entire appeal or was limited to the costs of the hearing. The appellant argued that the importance, complexity, and difficulty of the matter justified a broader interpretation of the costs order. The respondent contended that the QIRC's discretion to award costs was limited to the hearing itself, in accordance with the Queensland Industrial Relations Commission Act 1995.

The court found that the QIRC's power to award costs was indeed limited by the Workers' Compensation and Rehabilitation Act 2003. The decision in QNMU confirmed that costs under s 558(3) of the WCR Act were restricted to the 'costs of the hearing'. This interpretation was consistent with the legislative intent to differentiate between the various stages of the appeal process. The court upheld the limitation on the QIRC's discretion to award costs, concluding that it did not extend to the entire appeal but was confined to the hearing itself.

The final orders were that the respondent pay the appellant's costs of the hearing in the amount of $2,792.65.

Orders

Orders of the court

The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Appellant agrees that sch 2 pt 2 scale C of the UCPR applies, however, submits that the work involved as well as the importance, complexity and difficulty of the matter enlivens the discretion under s 132(3) of the Regulation. In support, the Appellant submits that:(a)there were legal issues that was considered relating to a capacity to sell labour in the open labour market and references were made to High Court authorities where the High Court commented on a similar complexity;(b)the date regarding when the Appellant's incapacity ceased was not simple and required multiple expert medical doctors to comment on that issue;(c)the facts were complex and required a thorough examination of the Appellant, and the pre-injury employer;(d)a further degree of complexity arose with the tendering of evidence, with the industrial issues that pre-dated the workers' compensation claim; and(e)there were issues relating to mitigation which needed to encapsulate the multiple erroneous decisions made by the compensating authority throughout the Appellant's claim, which commenced in 2015.Consideration The Appellant was successful in appealing the Respondent's decision to the Commission. As one of a number of orders outlined in the appeal decision, the Commission as currently constituted ordered that ''the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.''[4] This was a common order used in the Commission in circumstances where costs follow the event. [4] Adcock v Worker's Compensation Regulator [2021] QIRC 227. A number of months after the appeal decision, President Davis heard and determined the matter in QNMU. In QNMU, President Davis stated:[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''. QNMU also confirms that costs ordinarily follow the event, whilst noting that discretion exists for the Commission to make some other costs order.[5][5] QNMU at [16]. The Respondent has not submitted that costs should not follow the event in this matter, and I can see no reason that a costs order in favour of the Appellant should not be made. The general practice of the Commission prior to the decision in QNMU had been to make orders for the 'costs of the appeal' in favour of the successful party in matters under the WCR Act. However, the decision in QNMU is authority that the discretion to award costs pursuant to s 558(3) of the WCR Act is limited to the costs of the hearing.