Cope v Workers' Compensation Regulator - [2019] QIRC 166

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Cope v Workers' Compensation Regulator [2019] QIRC 166
PARTIES:	Cope, Michael Appellant v Workers' Compensation Regulator Respondent
CASE NO:	WC/2018/154
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	5 November 2019
HEARING DATE:	28 - 30 August 2019 23 September 2019 (Appellant submissions) 14 October 2019 (Respondent submissions) 22 October 2019 (Appellant submissions)
MEMBER: HEARD AT:	Pidgeon IC Hearing held in Brisbane Issue of costs dealt with on the papers
ORDERS:	1. Each Party bear its own costs.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where the substantive matter conceded by Regulator after hearing - issue of costs - Each party bear own costs.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 Workers' Compensation and Rehabilitation Regulation 2014 Bon Appetit Family Restaurant Ltd v Synnerdahl [2002] NSWCA 368. Donald Campbell & Co v Pollack [1927] AC 732 Groos v WorkCover Queensland (2000) QID 52 MacDougall v Curlevski (1996) 40 NSWLR 430 Queensland Bulk Water Supply Authority Trading as Seqwater v Workers' Compensation Regulator [2019] QIRC 054 State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services) v Timmins (No.2) [2018] QIRC 117
APPEARANCES:	At hearing: Mr M Horvath instructed by Turner Freeman Lawyers for the Appellant. Submissions on costs: Turner Freeman Lawyers. Ms D Callaghan instructed directly by the Workers' Compensation Regulator

Reasons for Decision
Matter to be determined

Michael Cope (Appellant) lodged an appeal against a decision of the Workers' Compensation Regulator on 31 August 2018.
As per a Directions Order issued by the Industrial Registrar on 28 February 2019, the parties were to advise the Industrial Registry whether a section 552A conference would be required.
On 29 April 2019, the Appellant's representative advised the Industrial Registry that the Appellant did not require a section 552A conference and requested hearing dates be allocated for the matter.
The matter proceeded to hearing and was conducted over three days on 28, 29 and 30 August 2019.
Following the hearing, the Regulator informed the Commission that the matter was being conceded.
The only matter outstanding between the parties was the issue of costs. Following a directions order of 16 September 2019, the Appellant filed a schedule of costs and both parties filed submissions addressing the matter of costs.
The Appellant seeks an order that the Respondent pay his costs and in accordance with a directions order from the Commission dated 16 September, provided a schedule of costs.
The Respondent seeks an Order the that the parties bear their own costs or in the alternative, that if the Commission makes a costs order in favour of the Appellant, that the Order complies with the Workers' Compensation and Rehabilitation Regulation 2014.
Relevant Legislation
Section 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (the WCRA) states: "Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation."
The relevant regulation, being reg 132 of the Workers' Compensation and Rehabilitation Regulation 2014 states:
132 COSTS –…

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.

Continue reading Cope v Workers' Compensation Regulator

Details

AGLC: Cope v Workers' Compensation Regulator [2019] QIRC 166
Case: [2019] QIRC 166
Decision Date: 5 November 2019

CaseChat Overview and Summary

In the case of Cope v Workers' Compensation Regulator, the dispute revolved around the issue of costs in a workers' compensation matter. The Workers' Compensation Regulator conceded the substantive matter after the hearing, and the only issue before the court was the determination of costs. The Appellant, Mr Cope, sought an award of costs in accordance with their Schedule of Costs, while the Respondent, the Workers' Compensation Regulator, argued that both parties should bear their own costs.

The court considered the general principle that costs follow the event, and the nature of an award of costs as being compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings. The court also noted that the costs are not awarded by way of punishment of the unsuccessful party. The court observed that the decision of the Respondent to concede the matter occurred only after the existence and content of the second report became known, and that the Appellant's suggestion that the decision of Swan DP in Timmins was relevant to this matter was misconceived.

The court ultimately determined that both parties should bear their own costs, as the circumstances of the case were not fully known at the time the opportunity to resolve the appeal and pay no costs was offered by the Respondent to the Appellant. The court did not intend to determine the outcome of the matter had the Respondent not made the decision to concede.

The final orders of the court were that each party bear its own costs.

Orders

Orders of the court

1. Each Party bear its own costs.

Background

Background to the litigation

The Respondent cites the case of Donald Campbell & Co v Pollack,[3] the House of Lords held that a judge without a juryhas the absolute and unfettered discretion to award or not to award costs to him (the successful party). This discretion must be exercised judicially, and the judge ought not to exercise his discretion against a successful party on grounds wholly unconnected with the cause of action.'…and furtherbut when a judge intending to exercise his discretion, has acted on facts connected with or leading up to the litigation, the Court of Appeal is prohibited by statute from entertaining an appeal from his decision. (emphasis added by Respondent).[3][1927] AC 732. The Respondent does not submit that the Appellant made a deliberate decision not to disclose Dr Estensen's report or opinion on causation until the morning of the hearing of his evidence. Similarly the Respondent does not seek a costs in its favour but an Order that both parties bear their own costs. The Respondent submits that the following facts connected with or leading up to the litigation are relevant to the Commission's consideration in the exercise of discretion (footnotes omitted):a. The Regulator's decision was made on 1 August 2018, on the basis of the medical records at hand and the reports of the treating psychologist, Ms Sharon Atkins and treating psychiatrist, Dr Johannes Scheepers. There had been no report of Dr Axel Estensen provided to the regulator. b. Dr Estensen provided a report on behalf of the appellant dated 8 August 2018, which was disclosed to the respondent. This report did not address the question of causation of the appellant's psychiatric condition – that is, that the accepted left shoulder injury was the major significant contributing factor to the psychiatric condition. c. The appellant lodged a notice of appeal on 31 August 2018, including a ground that the respondent had denied the appellant procedural fairness in not providing a further extension to obtain and consider Dr Estensen's report. d. The appellant filed a statement of facts and contentions on 13 November 2018, which included no reference to Dr Estensen's report or basis for its contentions that the psychiatric injury fell within the definition required under section 32 of the WCRA. e. The respondent filed a detailed statement of facts and contentions on 14 December 2018, referring to the appellant's multiple "complex" physical and social issues referred to in the medical records and reports, the lack of evidence in relation to causation and in particular, the deficiency in the (disclosed) report of Dr Estensen. f. Despite serving a list of witnesses and outlines of evidence on 18 March 2018 and an updated list of documents on 30 July 2019, the additional report of Dr Estensen was not disclosed. g. The appellant declined the opportunity to hold a section 552 conference.h. In accordance with directions from the Commission, the parties attempted to collate an agreed trial bundle of documents. i. The appellant provided its own bundle of trial documents to the Commission on 21 August 2019, with a copy forwarded to the respondent. This bundle did not include the additional report of Dr Estensen.j. On 26 August 2019, the respondent agreed to the appellant's offer to withdraw its other appeal, which was also set down to be heard on 29 August 2019, in relation to termination of the claim for the physical injury, on the basis that the parties bear their own costs. This was despite the respondent having borne the costs of preparation of this appeal (at the least, the same or similar items as listed at items 2, 3, 8 and 9 of the appellant's schedule);k. The three day hearing commenced on 28 August 2019.l. On the morning of 29 August 2019, at around 8.30am, in circumstances in which Dr Estensen was scheduled to give evidence at 10am, the additional report of Dr Estensen was disclosed to the respondent. m. The additional report of Dr Estensen, also dated 8 August 2018, included an additional paragraph, in answer to the specific question, that the only identified causal factor for the appellant's psychiatric injury was the work related orthopaedic (left shoulder) injury.n. The respondent objected to the report being tendered, which it was not, but also to oral expert evidence, not previously disclosed and material to the ultimate issue to be determined by the Commission, to be called at this late stage. o. When the respondent became aware of Dr Estensen's opinion, steps were taken to commence the process for conceding the appeal. The decision was made and transmitted to the appellant prior to the parties and Commission expending the costs of drafting and considering submissions. p. To pre-empt any suggestion by the appellant that the respondent should have surmised Dr Estensens's opinion from the first report, the respondent says: (i)as confirmed by Dr Estensen in cross-examination, the PIRS rating has nothing to do with causation;(ii)as confirmed with Dr Estensen in cross-examination, Axis III in DSM IV refers to 'information about any medical conditions that were present which might impact the patient's mental disorder or its management." It is not an opinion on causation of the mental disorder.(iii)as confirmed with Dr Estensen in cross-examination and as evident in the material reviewed listed in his report, he did not have access to all of the appellant's medical information, in particular in relation to the appellant's ankylosing spondylosis;(iv)the onus of proof in the appeal always rested with the appellant.

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 submits that costs should be awarded as per their Schedule of Costs. Consideration The general principle in a matter of this type is that costs follow the event. I note that O'Connor VP's reference in Seqwater to the observation of Martin J in Blackwood v Egan[10] regarding the exercise of discretion in awarding costs was raised by both the Appellant and Respondent. In that decision, his Honour referred to the High Court case of Latoudis v Casey[11] as follows:In that case Mason CJ and Toohey and McHugh JJ discussed the nature of an award of costs. At 543 Mason CJ said:If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against he expense to which he or she has been put by reason of the legal proceedings. He went on to say:Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.McHugh J said at 567:The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.[10] [2014] ICQ 020.[11] (1990) 170 CLR 534. With regard to the opportunity offered by the Appellant by the Respondent to resolve the appeal and pay no costs, I observe that at the time the offer was made and refused by the Respondent, all the circumstances of the case were not known. There had not at that point been an opportunity to hear from witnesses and undertake cross examination. Certainly, the existence of the second report was not known. In any case the Appellant's suggestion that the decision of Swan DP in Timmins is relevant to this matter is misconceived. The consideration of costs in that application for reinstatement matter was in relation to s 545 of the Industrial Relations Act 2016. In the matter of Timmins, the Applicant seeking reinstatement accepted that he had refused to comply with orders in his workplace. Swan DP found that his claims were motivated towards seeking retaliation. Her Honour also determined that in this case, the application for reinstatement in all aspects of the claim had extremely limited prospects of success and that the application was without merit and was made "without reasonable cause". While I have considered the submissions of the Appellant regarding their perception of the strength of their evidence and the merits of each parties' arguments, it is not my intention to determine what the outcome of the matter may have been had the Respondent not made the decision to concede. It is the evidence of the Respondent that the decision to concede the matter occurred only after the existence and content of the second report became known.