Habibi Arehjan v Workers' Compensation Regulator (No 3) - [2023] QIRC 255

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Habibi Arehjan v Workers' Compensation Regulator (No 3) [2023] QIRC 255
PARTIES:	Habibi Arehjan, Nadia (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOS:	WC/2019/157 WC/2020/36 WC/2020/37
PROCEEDINGS:	Appeals against decisions of the Workers' Compensation Regulator
DELIVERED ON:	5 September 2023
HEARING DATE:	On the papers
MEMBER:	O'Connor VP
ORDER:	1. That the Appellant pay the Respondent's costs fixed in the sum of $6,349.50 within 28 days of the date of this order.
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - APPEAL - WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - appeals against review decisions of the respondent - where commission determined appeals dismissed - where review decisions of the Respondent confirmed - where parties ordered pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 to file submissions on costs - whether costs should follow event - whether commission should exercise its discretion to award costs
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003, s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132 Industrial Relations (Tribunal) Rules 2011, r 98 Uniform Civil Procedure Rules 1999, sch 2, pt 2 Arehjan v Workers' Compensation Regulator [2020] QIRC 098. Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230
APPEARANCES:	Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees [2021] ICQ13 Ms N. Habibi Arehjan representing herself, the Appellant. Ms H. Blattman of Counsel directly instructed by Ms A. Schultz for the Respondent.

Reasons for Decision

Ms Nadia Habibi Arehjan ('the Appellant') filed three appeals in the Queensland Industrial Relations Commission ('the Commission'), (WC/2019/157, WC/2020/36 and WC/2020/37) against separate decisions of the Workers' Compensation Regulator ('the Regulator'). By decision of 3 July 2020 the Commission determined pursuant to r 98 of the Industrial Relations (Tribunal) Rules 2011 ('the IR Rules') that the appeals be joined and heard together.[1]
[1] Arehjan v Workers' Compensation Regulator [2020] QIRC 098.
By decision of 8 August 2023 I dismissed all three appeals and confirmed the review decisions of the Respondent. The parties were ordered to file submissions on the costs of the hearing by 4.00 pm on 29 August 2023. Further, in the absence of any application to make oral submissions in respect of costs, the question of costs would be decided on any written submissions filed without further oral hearing.[2]
[2] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230.
On 29 August 2023 the Appellant emailed the Registry attaching an excel spreadsheet of "cost breakdown of medical and hearing expenses".
The Respondent filed written submissions on costs on 29 August 2023 seeking the following:

Counsel's fees          $4,641.00

         Attendance of Clerk          $1,124.40

         Expert witness attendance allowance          $   584.10

         Total          $6,349.50
Power to award costs

The power of the Commission to order a party participating in litigation to pay the costs of another party is derived from statute and not the common law.
The Industrial Court of…

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 255
Decision Date: 5 September 2023

CaseChat Overview and Summary

Habibi Arehjan has appealed against review decisions made by the Workers' Compensation Regulator, arguing for a reversal of the Commission's determination that dismissed her appeals. The Regulator has responded by seeking costs pursuant to section 558 of the Workers' Compensation and Rehabilitation Act 2003, asserting that the appeals were without merit and that the Appellant was in consistent employment in the engineering sector since her injuries. The matter was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether the discretion to award costs under section 558 of the Workers' Compensation and Rehabilitation Act 2003 had been triggered and, if so, whether this discretion should be exercised. The court had to consider if the appeals were frivolous or vexatious, and whether there were any grounds to deny the award of costs to the Regulator. The court examined the submissions made by both parties regarding the Appellant's employment history and income, as well as the merits of the appeals.

The court determined that the discretion to award costs had been triggered, as the Regulator had successfully defended its position on appeal. The court found no grounds presented by the Appellant to dissuade it from exercising its discretion to award costs. The court accepted the Regulator's calculation of costs, which were deemed reasonable in the context of the appeals, and ordered that the Appellant pay the Regulator's costs in the sum of $6,349.50.

The court made the following order: the Appellant is to pay the Respondent's costs, amounting to $6,349.50, within 28 days of the date of the order. This decision affirms the principle that a successful party should not be left to bear its own costs when the opposing party's appeal is without merit.

Orders

Orders of the court

1. That the Appellant pay the Respondent's costs fixed in the sum of $6,349.50 within 28 days of the date of this order.

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 Respondent further submits that as became evident during the hearing, the Appellant was in receipt of consistent income and maintained employment in the engineering field since her injuries.[6][6] Respondent's submissions on costs filed 29 August 2023, [9].Consideration The Respondent is seeking costs in reliance on s 558 of the WCR Act. The question which I am now called on to consider is whether a discretion to award costs has been enlivened and if satisfied that it has, whether the discretion ought to be exercised. 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.[7][7] Latoudis v Casey (1990) 170 CLR 534 at 543. The Regulator was successful in defending its position on appeal before the Commission. 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 Regulator's costs in respect of WC/2019/157, WC/2020/36 and WC/2020/37. Accepting the correctness of the Respondent's calculations, the costs of the hearing have been quantified in accordance with the Magistrates Court Scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2 and fixed in the sum of $6,349.50. Having regard to the nature of the appeals before the Commission, the itemised costs sought by the Regulator are in my view reasonable. Accordingly, I make the following order:1. That the Appellant pay the Respondent's cost fixed in the sum of $6,349.50 within 28 days of the date of this order.

Counsel's fees	$4,641.00
Attendance of Clerk	$1,124.40
Expert witness attendance allowance	$ 584.10
Total	$6,349.50