Burton v Workers' Compensation Regulator (No 2)
[2022] ICQ 29
•9 September 2022
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Burton v Workers’ Compensation Regulator (No 2) [2022] ICQ 029
PARTIES:
EVAN GILBERT BURTON
(appellant)
v
WORKERS’ COMPENSATION REGULATOR(respondent)
FILE NO/S:
C/2022/2
PROCEEDING:
Appeal
DELIVERED ON:
9 September 2022
HEARING DATE:
Orders made on written submissions with no oral submissions
MEMBER:
Davis J, President
ORDER/S:
No order as to costs of the appeal
CATCHWORDS:
INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - COSTS - where a worker appealed a decision of the Queensland Industrial Relations Commission (QIRC) from a decision of the Workers’ Compensation Regulator - where the worker suffers from cervical spondylosis - where the existence of the injury was not questioned - where an appeal from the QIRC is only on the ground of error of law - where it was argued that legal error had occurred in the making of factual findings - where the appeal was dismissed - where the Regulator seeks costs - whether the appeal was not made vexatiously - whether the appeal was made without reasonable cause
Industrial Relations Act 2016, s 557, s 565
Industrial Relations (Tribunals) Rules 2011, s 70
Uniform Civil Procedure Rules 1999, s 681
Workers’ Compensation and Rehabilitation Act 2003, s 32, s 563CASES:
Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019, cited
Burton v Workers’ Compensation Regulator [2021] QIRC 437, related
Burton v Workers’ Compensation Regulator [2022] ICQ 017, related
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, cited
Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020, cited
Yousif v Workers’ Compensation Regulator [2019] ICQ 10, citedAPPEARANCES:
T Nielsen instructed by Carter Capner Law made written submissions for the appellant
D Callaghan instructed directly by the Regulator made written submissions for the respondent
Evan Gilbert Burton appealed to this Court from a decision of the Queensland Industrial Relations Commission (QIRC) which confirmed a decision of the Workers’ Compensation Regulator denying his claim for workers’ compensation.[1] On 8 June 2022, the appeal was dismissed, and reasons were delivered on 17 June 2022.[2]
[1]Burton v Workers’ Compensation Regulator [2021] QIRC 437.
[2]Burton v Workers’ Compensation Regulator [2022] ICQ 017.
The Regulator applies for costs of the appeal calculated pursuant to the Industrial Relations (Tribunals) Rules 2011[3] in the sum of $5,211.77.
[3]Rule 70.
Background
After completing his apprenticeship with JJ Richards & Sons Ltd (JJ Richards), Mr Burton continued to work for that company. He was a long-term employee having worked for JJ Richards from 1991 to 2015.
Mr Burton suffers from cervical spondylosis. He claimed that was a compensable injury under the Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act)[4] because the injury was at least aggravated by his work.
[4]Section 32, “meaning of injury”.
The Regulator determined that there was no causal connection between the injury and Mr Burton’s work. It dismissed his claim. He appealed unsuccessfully to the QIRC.[5]
[5]Burton v Workers’ Compensation Regulator [2021] QIRC 437.
Before the QIRC, there was evidence from five doctors. Four, Drs Delaney, Tomlinson, Johnson and Campbell gave evidence in support of Mr Burton’s claim. The Regulator led evidence from Dr Atkinson.
The doctors called by Mr Burton opined that there was a causal connection between the injury and the posture which Mr Burton adopted at work. Dr Atkinson opined that the injury was unlikely to be caused by Mr Burton working with his neck in a flexed position and attributed the injury to leisure activities undertaken by Mr Burton such as kayaking, rock climbing, golf and paddle boarding.
In the QIRC, the evidence of Dr Atkinson was preferred and the application dismissed.
There were eight grounds of appeal. Only three were argued, but the real complaint was reflected in ground 5, which was:
“(5)The Deputy President erred in preferring Dr Atkinson’s opinion to the opinions expressed by Drs Tomlinson, Delaney, Campbell and Johnson.”
All grounds failed.
On an appeal from the QIRC to this Court under the Workers’ Compensation Act, s 563 displaces the usual rule that costs follow the event.[6] That section provides:
“563 Costs of appeal to industrial court
(1)On an appeal, the industrial 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.
(2)Costs of the order are to be in accordance with the Industrial Relations (Tribunals) Rules 2011, rule 70.”
[6]Uniform Civil Procedure Rules 1999, which applies in courts other than the Industrial Court of Queensland, r 681 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.
Rule 70 of the Industrial Relations (Tribunals) Rules 2011 only concerns the calculation and assessment of costs.
Section 563 bestows a discretion upon the Court to award costs. That discretion only arises if one of two jurisdictional facts is established. They are:
1.satisfaction by the Court that the appeal was made vexatiously; or
2.satisfaction by the Court that the appeal was made “without reasonable cause”.
It is not suggested that the appeal was made vexatiously.
In a consistently cited passage, Wilcox J in Kanan v Australian Postal and Telecommunications Union[7] said of the term, “without reasonable cause”:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.”[8] (emphasis added)
[7](1992) 43 IR 257.
[8]At 264-265, followed in Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019 and Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020.
Consideration
The fact that the appeal has failed does not mean that the appeal was made “without reasonable cause”.[9]
[9]Yousif v Workers’ Compensation Regulator [2019] ICQ 10.
The grounds of appeal that were pressed all complained of factual errors. Even ground 5 alleged an error of fact, namely, preferring one witness’s evidence over that of others.
That has significance given s 557(2) of the Industrial Relations Act 2016, which provides for an appeal to this Court only on the ground of error of law or excess or want of jurisdiction, except by leave. The grounds upon which leave can be given are limited[10] and leave has not been sought.
[10]Industrial Relations Act 2016, s 565.
However, Mr Burton did not, on appeal, just submit that his four doctors ought to have been preferred on the basis of reliability or expertise. They are all clearly matters of fact. His argument was more subtle and relied on Ribeiro v Workers’ Compensation Regulator.[11]
[11][2019] QIRC 203.
In Ribeiro, a number of principles were identified concerning the approach a court ought to take to the assessment of conflicting expert evidence.
Mr Nielsen, who appeared for Mr Burton, then advanced ground 5 by reference to the legal principles in Ribeiro and the reasons of the QIRC.
As earlier observed, the ground of appeal failed. However, as the primary judgment reveals, the various arguments deserved significant analysis.
I do not find that the appeal was made “without reasonable cause”.
It follows that the discretion to award costs against Mr Burton has not arisen.
The appropriate order is that there be no order as to costs.
I order that there be no order as to costs of the appeal.
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