Hoffman v Simon Blackwood (Workers' Compensation Regulator) & Griffith University
[2014] QIRC 11
•21 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Hoffman | v | Simon | Blackwood | (Workers' |
Compensation Regulator) AND Griffith University [2014] QIRC 011
| PARTIES: | Hoffman, Kevin | |
| (Applicant) | ||
| v | ||
| Simon Blackwood (Workers' Compensation Regulator) | ||
| (Respondent) | ||
| Griffith University | ||
| (Employer) | ||
| CASE NO/S: | WC/2013/192 | |
| PROCEEDING: | Application for the adjournment of hearing dates | |
| scheduled for 20 – 24 January 2014 | ||
| DELIVERED ON: | 21 January 2014 | |
| HEARING DATE: | 16 January 2014 | |
| MEMBER: | Vice President Linnane | |
ORDERS : | 1. Hearing dates of 20, 21, 22, 23 and 24 January 2014 be vacated. | |
|
of $1,186.00 in costs.
3. Appellant to pay Griffith University an
amount of $1,186.00 in costs.
4. Orders as to costs to be complied with prior
to the issuing of any directions for the
further conduct of the Appeal.5. An Affidavit from the Solicitor representing
the Appellant in the further conduct of this Appeal be filed indicating that the Appellant is ready for the hearing of this Appeal and that the Solicitor is acting for the Appellant in the Appeal.
6. The Appellant is to provide a medical
certificate from his treating medical practitioner stating that he is fit to give evidence and to be cross-examined at the hearing of this Appeal.
| CATCHWORDS: | Application by Appellant for the adjournment of |
| hearing dates – Adjournment granted on conditions – Appellant to pay both the Regulator | |
| and the Employer an amount of $1,186.00 in | |
| costs – Further consequential orders made. | |
| CASES: | Industrial Relations Act 1999, s. 274 – General |
| powers of the Commission. Uniform Civil Procedures Rules 1999, Schedule | |
| 3, Scale of costs – Magistrates Courts, Scale E. | |
| APPEARANCES: | Mr K. Hoffmann, Appellant, in person. Mr R. Clutterbuck, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Mr S. Sapsford, Counsel instructed by Minter |
| Ellison. |
[7] During the course of this Mention I adjourned the hearing so that both Counsel for the Regulator and Counsel for the Employer could advise the Appellant of the likely costs they would be seeking if an adjournment was granted. Following the resumption of this Mention, the Appellant advised that he was seeing a new Solicitor on Wednesday 8 January 2014 and requested that he get advice from that Solicitor prior to the adjournment application being determined.
[8] A direction was given that the Appellant was to inform the Commission of his
position by 9.00 am on Thursday 9 January 2014. [9] The Commission received an e-mail from the Appellant on 8 January 2014 wherein
he formally requested an adjournment of the hearing scheduled for 20 – 24 January
2014. In that correspondence the Appellant advised that he had consulted with a Solicitor from Schultz Toomey O'Brien Solicitors who had informed him that they needed an adjournment of at least four months if they were to represent him at the hearing of this Appeal.
[10] In that correspondence the Appellant also raised objection to the awarding of costs should an adjournment be granted. The grounds raised by the Appellant included the following:
he would be financially disadvantaged whereas the Regulator and the
Employer had "unlimited public funding";
the Employer had only been given a right to be heard in the Appeal and
was not a party to the proceeding and, further, that it was the Employer's
choice to seek a right to be heard;
the Commission is considered to be a "layperson's court" where
representation by a lawyer is not required. During the course of the proceedings the Appellant was advised that the term "layperson's" court may be appropriate when referring to the Commission in part of its industrial jurisdiction however when performing its role in the workers' compensation jurisdiction the parties are more often than not legally represented; and
the firm acting for the Employer is a large legal firm with high overheads and is known to charge premium rates to their clients. Once again it was explained to the Appellant that costs in this jurisdiction are awarded on a scale set by legislation and not determined by any party;
[11] The application for adjournment was then listed for hearing on 16 January 2014. Prior to this the Appellant forwarded a written submission in support of the granting of an adjournment.
[12] It is unclear as to why the Appellant's original legal firm either withdrew from representing the Appellant or was dismissed by the Appellant. According to the Appellant it had something to do with a letter he wrote on 2 September 2013. The Appellant was advised by his Solicitor/Counsel, at the time, that the correspondence was inappropriate. The Appellant contends that, it was not until 19 December 2013 that the legal firm advised him that they were no longer acting for him in this Appeal. The correspondence from the firm of solicitors was not tendered in the proceeding or sighted by the Commission.
[13] Counsel for the Regulator, Mr Clutterbuck, submitted that the Regulator neither opposed nor consented to the adjournment of the hearing. The Regulator however sought its costs thrown away should the adjournment be granted. In that regard the Regulator relied upon the Affidavit of Gavin Clark (Exhibit 1). The Regulator sought an amount of $4,239.50 in costs based on Scale "E" of the Uniform Civil Procedures Rules Schedule 3. The actual costs incurred by the Regulator were identified as being $7,996.00.
[14] As mentioned earlier Mr Sapsford, Counsel for the Employer, formally opposed the granting of an adjournment. He submitted that considerable expense had been incurred by his Instructing Solicitors, some of which had occurred because of the early January hearing dates. Mr Sapsford did however concede the difficulty now faced by the Appellant and that he may not be able to represent himself adequately at this time.
[15] The Employer sought an amount of $2,925.50 in costs thrown away as a result of any adjournment, if granted. It should be noted that in the Order issued on 15 July 2013 which gave the Employer a right to be heard, Order 3 provided as follows:
"Until further order, the Employer is not at liberty to seek costs from the
Appellant at the completion of any hearing of the Appeal."[16] It is however noted that the Order related to costs "at the completion of any hearing of the Appeal". The hearing of the Appeal has not yet commenced.
[17] The Employer also submitted that, should an adjournment of the hearing dates be granted, further orders be issued in this matter. The request for the following orders is so that the Employer receives some assurance that any future preparation for a hearing in this matter will not be wasted. The orders sought by the Employer are as follows:
(i) that any costs orders issued as a result of the adjournment be complied with prior to the matter being further listed for hearing;
(ii) that an Affidavit from a Solicitor acting for the Appellant confirm not only that the Appellant is ready to proceed to hearing but also that the Solicitor is acting for the Appellant at the hearing of this Appeal; and
(iii) that the Appellant provide a medical certificate from his treating medical practitioner confirming that he is fit to give evidence and be cross- examined at the hearing of this Appeal.
[18] During the course of the hearing on 16 January 2014 I did indicate that the hearing of the Appeal in WC/2013/192 would be adjourned but that conditions would apply to the adjournment. Those conditions are contained in the following Order.
[19] I thus order that:
(i) The hearing dates of 20, 21, 22, 23 and 24 January 2014 be vacated.
(ii) The Appellant pay the Regulator an amount of $1,186.00 in costs thrown away as a result of the adjournment. The sum of $1,186.00 is comprised of the following items and amounts:
Preparation for trial $500.00 Counsel's fee to appeal at hearing $500.00 Counsel's fee to appear at application $186.00
(iii) The Appellant pay the Employer a similar amount of $1,186.00 in costs thrown away as a result of the adjournment being granted.
(iv) Future directions and hearing dates for WC/2013/192 not be actioned until the costs orders in (i) and (ii) above have been complied with;
(v) The future conduct of WC/2013/192 not proceed until an Affidavit is received from a Solicitor acting for the Appellant to the effect that the Appellant is ready to proceed to hearing and that the Solicitor is acting for the Appellant at the hearing of WC/2013/192; and
(vi) The future conduct of WC/2013/192 not proceed until a medical certificate is received from the Appellant's treating medical practitioner stating that the Appellant is fit to give evidence in WC/2013/192 and fit to be cross-examined in that Appeal.
[20] Order accordingly.
[1] The substantive matter is an appeal by Kevin Hoffman (Appellant) against a decision of the Review Unit of Q-COMP, now Simon Blackwood (Workers' Compensation Regulator) (Regulator) made on 14 May 2013 which confirmed WorkCover Queensland's rejection of the Appellant's claim for workers' compensation.
[2] The Appellant lodged a Notice of Appeal on 6 June 2013. At the time of lodgment, the Appellant was represented by Robert Bakker, of rb Lawyers. A Consent Order giving the then employer, Griffith University (Employer), a right to be heard, was
made on 15 July 2013.
[3] On 11 July 2013 directions were given to the Appellant and the Regulator for the further conduct of this Appeal. The hearing dates of 20, 21, 22, 23 and 24 January 2013 were outlined in direction 18 of the Further Directions Order dated 12 July 2013 and forwarded to both parties.
[4] This matter was proceeding towards the hearing of the Appeal with directions being complied with until the Mention of the matter scheduled for hearing on 6 January 2014. The Commission was advised in writing by Mr Bakker, on 6 January 2014, that he no longer acted for the Appellant.
[5] At the Mention on 6 January 2014 the Appellant was self-represented. At this time the Appellant advised the Commission that his Solicitor had "withdrawn" on 19 December 2013. During the course of the Mention he also indicated that the barrister who had been briefed to appear at the hearing had "also been dismissed". On this occasion the Appellant advised that he was seeking new legal representation
and asked for an adjournment of the hearing scheduled for 20 – 24 January 2014.
[6] Mr Clutterbuck, Counsel for the Regulator, indicated that the Regulator would be seeking its costs thrown away as a result of any adjournment, if granted. Mr Sapsford, Counsel for the Employer, opposed the granting of an adjournment. It was submitted that the Employer had been required to organise twelve witnesses for the hearing in January 2014 and had incurred costs that would be thrown away, should an adjournment at such a late stage be granted.
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