Blackwood (Worker's Compensation Regulator) v Chapman

[2015] QIRC 86

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Blackwood (Worker's Compensation Regulator) v Chapman [2015] QIRC 086

PARTIES:

Simon Blackwood (Worker's Compensation Regulator)
(Applicant)

v

Carl Lester Chapman
(Respondent)

CASE NO:

WC/2015/86

PROCEEDING:

Costs application

DELIVERED ON:

15 May 2015

HEARING DATES: 

15 May 2015

MEMBER:

Industrial Commissioner Neate

ORDERS:

1.      Carl Chapman is to pay the costs of the Workers' Compensation Regulator of and incidental to the appeal in WC/2013/208 and this application WC/2015/86 in the sum of $8,696.70

CATCHWORDS:

COSTS - WORKERS' COMPENSATION APPEAL - APPEAL DISMISSED - Appellant ordered to pay Respondent's costs of and incidental to the appeal - costs not paid - Workers' Compensation Regulator sought order that costs be paid - amount payable calculated in accordance with relevant statutory scales - Appellant in difficult financial and personal circumstances - general principles about awards of costs - order made in the amount sought.

CASES:

Workers' Compensation and Rehabilitation  Act 2003 s 558(3)

Blackwood v Egan [2014] ICQ 020

Chapman v Blackwood (Worker's Compensation Regulator) [2014] QIRC 112

Latoudis v Casey (1999) 170 CLR 534

APPEARANCES:

Mr. J.W. Merrell, counsel directly instructed by the Simon Blackwood (Workers' Compensation Regulator).

Mr C. L. Chapman, in person for the Respondent.

Decision

1. On 10 July 2014, this Commission released a decision dismissing the appeal by Carl Lester Chapman against a decision of the Workers' Compensation Regulator that he did not have an entitlement to compensation: see Chapman v Blackwood [2014] QIRC 112.

2. One of the orders made by the Commission was that the Appellant (Mr Chapman) pay the Respondent's costs of and incidental to the appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.

3. The Regulator made a number of attempts to recover those costs, as evident from written and telephone communications with Mr Chapman's legal representative, Shine Lawyers.

4. As at 9 April 2015, the Regulator had not received payment of its costs or any evidence from Mr Chapman or his legal representative setting out his impecunious situation such that the Regulator could negotiate a payment plan with him.

5. On that date, the Regulator applied to the Commission for a decision that Mr Chapman pay:

   (a)     the Regulator's costs in the sum of $8,024.20 or alternatively that the costs be assessed; and

   (b)     the Regulator's costs of this application in the amount of $672.50.

6. The amounts sought have been calculated in accordance with regulation 132 of the Workers' Compensation and Rehabilitation Regulation 2014, so that:

   (a)     costs in relation to counsel's or solicitor's fees are as under the Uniform Civil Procedure Rules 1999 schedule 3, part 2, scale E; and

   (b)     costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2009, part 4.

7. The calculations are as follows:

   Costs in relation to the appeal

Item 5 (a)	Preparation for trial	$2,505.00
Item 6 (d)	Conference fees for counsel ($181 x 4 hrs)	$724.00
Item 6 (f)	Counsel's fees to appear at hearing – 20 January 2014	$1,120.00
Item 6 (g)	Counsel's refresher fees – 21 & 22 January 2014 ($750.00 / day)	$1,500.00
Item 8 (b)	Attendance of clerk ($284.00 x 3 days)	$852.00
Item 11 (a) (i)	Disclosure - requesting	$284.00
Item 11 (a) (ii)	Disclosure - making	$555.00
Miscellaneous	Expert witness – Dr Paul Licina, Dr Iniyal Raveenthiran, Dr Roy Saunders - $86.40 per witness	$259.20
Miscellaneous	Lay witnesses – Andrew Carlton, Andrew Stainton, Kevin King - $75.00 per witness	225.00
TOTAL	$8,024.20

Costs in relation to this Application

Item 6 (b)	Counsel's fees to settle Application	$103.50
Item 6 (j)	Counsel's fees to appear at Application	$186.00
Item 10	Application to the Commission	$383.00
TOTAL	$672.50

Total amount: $8,696.70

1. On 13 May 2015, the Commission was advised that Shine Lawyers no longer represent Mr Chapman in this matter.

2. At the hearing in relation to the Regulator's application, the Regulator confirmed that the costs incurred in relation to the appeal were greater than the amount sought, the costs in that amount had not been paid, and a payment program had not been negotiated with Mr Chapman.

3. The Regulator submitted that the orders sought should be made by the Commission because:

   (a)     the Regulator was successful in respect of its defence to Mr Chapman's appeal;

   (b)     the Regulator incurred costs in defending Mr Chapman's appeal; and

   (c)     Mr Chapman has not appealed the Commission's decision, nor applied to have the order in relation to costs set aside.

4. In these circumstances, the Regulator submitted that it should be compensated for the costs and expenses incurred on the limited amount that it is entitled to claim under the Workers' Compensation and Rehabilitation Regulation 2014 in defending the appeal and having to make this application.  The Regulator is not seeking any additional amount under regulation 132(3).

5. The submissions made on behalf of the Respondent referred to the general principles about the award of costs as set out by the High Court in Latoudis v Casey[1] and usefully summarised by Martin J in Blackwood v Egan.[2]  The relevant principle for this application is that costs are not awarded by way of punishment or disapproval of the unsuccessful party but are to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings.

   [1] Latoudis v Casey (1999) 170 CLR 534.

   [2] Blackwood v Egan [2014] ICQ 020.

6. Mr Chapman appeared on his own behalf at the hearing.  He explained his very difficult financial and health circumstances, and contended that the enforcement of an order in the amount sought might lead to his bankruptcy.  The Regulator acknowledges that Mr Chapman is in difficult financial circumstances, and required no additional evidence from him in relation to that matter.  Mr Chapman sought a degree of compassion from the Commission in making any orders in relation to the present application.

7. The Regulator submits that, in light of the general principles about costs set out in judicial decisions, Mr Chapman's financial circumstances are not a relevant consideration for the Commission to take into account in determining whether to make the orders sought by the Regulator. 

8. Having heard from the Regulator's representative and Mr Chapman, I am satisfied that the Regulator is entitled to an order for costs in the amount sought.  However, I would urge the Regulator, when considering whether, when and in what manner to enforce the order, to have regard to Mr Chapman's present and reasonably foreseeable financial and personal circumstances.

9. Consequently, I order that Mr Chapman pay the Regulator's costs of and incidental to the appeal in WC/2013/208 and of this application in the total sum of $8,696.70.