Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator) and Edey
[2015] QIRC 168
•16 September 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator) and Edey [2015] QIRC 168 | |
PARTIES: | Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator) and Edey, Tyrone | |
CASE NO: | WC/2015/232 | |
PROCEEDING: | Application for costs | |
DELIVERED ON: | 16 September 2015 | |
HEARING DATES: | 7 September 2015 | |
MEMBER: | Deputy President O'Connor | |
ORDERS: | 1. That the Second Respondent pay the Applicant's costs of and incidental to the appeal fixed in the sum of $7,699.00 2. That the First Respondent pay the Applicant's costs thrown away by reason of the adjournment fixed in the sum of $1,210.00. 3. Should there be any dispute as to the quantum of the costs of and incidental to the appeal as set out in Order 1 above, I give the parties liberty to apply. | |
| CATCHWORDS: | WORKERS' COMPENSATION - APPLICATION FOR COSTS - An appeal against a decision of the Appeals Unit of the Workers' Compensation Regulator - Where the Worker's Compensation Regulator was in a position to concede the appeal prior to the hearing - Where the matter was adjourned and hearing dates vacated so the worker could consider their position of whether to join as a party to the appeal - Where the worker was joined as a party to the appeal - Where the appeal was allowed - Where no order was made as to costs - The worker to pay the Appellant's costs of an incidental to the appeal - The Regulator to pay the costs thrown away by reason of the adjournment. | |
| CASES: | Uniform Civil Procedure Rules 1999, Schedule 3 Scale of Costs - Magistrates Court, Scale E Latoudis v Casey (1990) 170 CLR 534 | |
| APPEARANCES: | Mr P.B. Rashleigh, Counsel instructed by Kaden Boriss Legal for the Applicant. Mr P.B. O'Neill, Counsel directly instructed by the First Respondent. Mr K. Zhang of Shine Lawyers for the Second Respondent. | |
Decision
This is an application filed on 18 August 2015 by the Ipswich City Council ("the Applicant") for costs of and incidental to the appeal against a decision of the Appeals Unit of the Workers' Compensation Regulator ("the First Respondent") heard in the Queensland Industrial Relations Commission ("the Commission") on 8 and 9 October 2013. The worker, Tyrone Edey ("the Second Respondent") was joined as a party to the appeal.
On 24 January 2015, the Commission released the decision allowing the appeal, setting aside the decision of the Regulator and reinstating the decision of Local Government WorkCare made on 6 July 2011. No order was made as to costs.
The Applicant seeks the following orders:
"1. That Tyrone Edey pay the costs of the Applicant, Ipswich City Council, of the Appeal including of this Application on Magistrates Court scale E.
2. In the alternative, Simon Blackwood (Workers' Compensation Regulator) pay the costs of the Applicant, Ipswich City Council, of the Appeal including of this Application on Magistrates Court scale E.
3. Simon Blackwood (Workers' Compensation Regulator) pay the costs of the Applicant, Ipswich City Council, of costs thrown away by the cancellation on 2 January 2013 of the original listed hearing dates of 8 - 11 January 2013, and of this Application, on Magistrates Court scale E."
This application was heard in the Commission on 7 September 2015.
The First Respondent does not dispute that the Applicant is entitled to its costs of the appeal. It properly accepts that costs follow the event. However, it does contest that it is responsible for those costs as a consequence of the adjournment or in the appeal.
The issue to be determined by the Commission is, in exercising its discretion to award costs, who should ultimately be responsible for the payment of those costs.
In Latoudis v Casey[1] Mason CJ wrote:
[1] Latoudis v Casey (1990) 170 CLR 534, 543.
"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. 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 the expense to which he or she has been put by reason of the legal proceedings."[2]
[2] Ibid.
His Honour, the Chief Justice further stated:
"Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. 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."[3]
McHugh J said:
"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."[4]
[3] Ibid.
[4] Ibid, 567.
Costs before the Commission are calculated in accordance with s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act), Schedule 3 Scale of Costs - Magistrates Court, Scale E of the Uniform Civil Procedure Rules 1999 (UCPR) and s 113 of the Workers' Compensation and Rehabilitation Regulation 2003.
Section 558(3) provides:
"(1) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation."
The Applicant has submitted that it is entitled to Magistrates Court scale E costs (adjusted to reflect the appropriate costs at the time the costs were incurred) in the sum of $7,699.00 as set out below:
Item - Instructions to Sue - Notice of Appeal and Service - $765.00
Item 5(a) - Preparation for trial where counsel is engaged - $2,420.00
Item 6(d) - Conferences - 3 hours at $ 181.00 - $543.00
Item 6(e) - Advice on Evidence - $201.00
Item 6(f) - on first day of hearing $1,120.00
Item 6(g) - on second day of hearing - $725.00
Item 8(a) - Attendance of Solicitor - each day $450.00 - $900.00
Item 11(a)(i) - Disclosure requesting - $275.00
Item 11(a)(i) - Disclosure requesting - $540.00
Non Professional Witness ($70.00 x 3) - $210.00
Total $7,699.00
The following brief chronology is extracted from the information deposed by Gavin Clark in his affidavit filed in the Commission on 3 September 2015.
Chronology
1.By a Further Directions Order given by Vice President Linnane on 25 September 2012, the appeal was set down for hearing in the Commission on 8 to 11 January 2013.
2.On 2 November 2012, the Appellant, Ipswich City Council, provided Q-Comp with a list of the witnesses it intended to call at the hearing.
3.On 9 November 2012, Q-Comp telephoned Ms Shona Barnes of the Ipswich City Council, requesting that they confer with the Appellant's witnesses and received a response advising of the time and date Q-Comp could conduct these conferences.
4.On 9 November 2012, Q-Comp telephone the Appellant advising that Q-Comp was arranging the conferences with the Appellant's witnesses with a view to Q-Comp reassessing its position in relation to the appeal.
5.On 22 November 2012, Gavin Clark of Q-Comp and Counsel for Q-Comp held conferences with the Appellant's witnesses.
6.By telephone conversation on 10 December 2012, the respondent, Q-Comp advised the Appellant, Ipswich City Council, that it was awaiting Counsel advice and asked the Appellant that they delay incurring legal costs as it was likely that the appeal would be conceded.
7.By telephone conversation on 19 December 2015, Q-Comp advised the Appellant that they were still awaiting Counsel advice and it was likely that Q-Comp's position would change. Q-Comp requested that the Appellant's solicitors obtain their client's instructions as to whether they would agree to Q-Comp conceding the appeal on the basis that each party would bear their own costs of and incidental to the appeal.
8.On 20 December 2012, Q-Comp received Counsel's written advice confirming that the appeal should be conceded. Q-Comp then sent an urgent compromise proposal to the Appellant.
9.On 20 December 2012, the Appellant's solicitors advised that their client would bear its own costs of the appeal on the basis that the appeal was conceded by 12.00 pm on 2 January 2013.
10.On 20 December 2012, Q-Comp telephoned Mr Edey's legal representatives, Shine Lawyers, advised that Q-Comp would be conceding the appeal and requested urgent instructions from their client regarding whether he wold be exercising his right to joining as a party.
11.On 21 December 2012, Q-Comp emailed the QIRC Registry requesting that urgent consideration be given to adjourning the hearing so that Mr Edey could consider his options with respect to joining as a party.
12.On 2 January 2013, the Vice President advised that in the circumstances, she would be vacating the hearing dates.
13.On 8 January 2013, Q-Comp telephone Shine Lawyers and requested urgent advice from Shine Lawyers as to whether their client wished to join as a party to the appeal.
14.By telephone conversation on 10 January 2013, Q-Comp again requested urgent advice from Shine Lawyers and advised that if they did not have an answer by close of business on 11 January 2013, steps would be taken to concede the appeal.
15.By close of business on 11 January 2013 there had been no correspondence received from Shine Lawyers.
16.On 15 January 2013, Q-Comp advised the Ipswich City Council that they were in a position to concede the appeal and attached a draft consent order in their correspondence.
17.By email dated 15 January 2013, the Ipswich City Council requested that Q-Comp amend the consent order to insert a new order 3, "that the decision of Local Government WorkCare dated 6 July 2011 is restored".
18.By email dated 15 January 2013, Q-Comp advised the Ipswich City Council that it was agreeable to their request to amend the consent order.
19.On 15 January 2013, Paula Dorries of Shine Lawyers telephoned Gavin Clark of Q-Comp and advised that she had received instructions that her client, Mr Edey, would be joining as a party to the appeal.
20.By email dated 15 January 2013, Shine Lawyers confirmed their client's intention was to join as a party to the appeal.
21.Consequently, Q-Comp did not concede the appeal having received confirmation of Mr Edey's intention to join as a party to the appeal.
22.On 29 January 2013, Shine Lawyers advised Q-Comp that Mr Edey had formally applied to the Commission to become a party to the appeal.
23.On 31 January 2013, by Order the Vice President, Mr Edey became a party to the appeal.
24.The appeal was heard on 8 and 9 October 2013, at which Q-Comp took no active role.
25.On 24 January 2015 the Commission released its decision allowing the appeal. No order was made as to costs.
As the chronology reveals, the First Respondent first indicated to the Applicant on 9 November 2012 of an intention to concede the appeal. On 10 December 2012, the First Respondent gave a more certain indication of its intention to concede the appeal. Confirmation of the decision to concede the appeal was given to the Applicant on 20 December 2012.
The solicitors for the Applicant wrote to the First Respondent on 31 December 2012 indicating that it was opposed to adjournment of the hearing to permit the solicitors for the Second Respondent to seek instructions whether the Second Respondent wished to be joined as a party to the proceedings. Further, the First Respondent was advised that the solicitors for the Applicant held instructions to oppose any application for an adjournment and to seek costs thrown away by reason of the adjournment.
Notwithstanding the advice of the solicitors for the Applicant, the matter was adjourned by the Vice President on 2 January 2013.
It was submitted by the First Respondent that the Applicant incurred the costs thrown away because of the dilatory conduct on the part of the Second Respondent in not providing a more prompt response as to whether the Second Respondent intended to become a party to the proceedings.
I do not accept that submission. The matter was set down for hearing on 8 to 11 January 2013. The First Respondent requested an adjournment of the hearing on 21 December 2012. On 2 January 2013 the hearing dates were vacated.
I do not think it reasonable to expect that the Second Respondent would be in a position to make a prompt decision as to whether he should or should not become a party to the proceedings. It is a significant decision for any litigant and having regard to the proximity to Christmas and the ability to obtain instructions and to seek professional advice it would not have been unreasonable to expect a "prompt" decision.
It needs to be borne in mind that the Second Respondent was not, at the time the First Respondent decided to adjourn the matter, a party to the proceedings. Indeed, it was only on 21 December 2012, a day after the First Respondent decided to concede the appeal that a request for an adjournment was made by the First Respondent to the Industrial Registry.
In relation to the quantum of costs claimed by the Applicant as costs thrown away by reason of the adjournment, the Applicant has sought 50% of the scale fee under Item 5(b) of Magistrates Court Scale E for preparation. In the circumstances, I consider that it is a reasonable claim. I note that the Applicant also makes a claim under Item 5(b) of Scale E for preparation for the substantive appeal. I accept the argument advance by the Applicant that with the joining of the Second Respondents a party to the proceedings the nature of the appeal and its conduct changed.
In my view, the Applicant is entitled to its costs thrown away by reason of the adjournment fixed in the sum of $1,210.00 to be payable by the first respondent.
In considering who should wear the burden of the costs for the appeal, I accept that the Applicant was on notice for some 10 and a half months of the First Respondent's intention not to take an active part in the proceedings before the Commission. I also accept the submission of the First Respondent that it was the Second Respondent who caused the Applicant to incur the costs of the appeal. When becoming a party to the proceedings, the Second Respondent was aware of the First Respondent's decision to concede the appeal and its intention not to take an active part in its conduct.
Unfortunately, the Second Respondent was not in attendance at the hearing of this application. The solicitors on the record for the Second Respondent advised the Commission that they held no instructions from the Second Respondent and had experienced some difficulty in trying to obtain any instructions. In the circumstances, the solicitors for the Second Respondent sought and were granted leave to withdraw as solicitors on the record.
In argument before the Commission, there was a suggestion that the First Respondent should bear the costs of the Appeal because there was a likelihood that the Second Respondent would not be in a position to comply with a costs order. There was no evidence before the Commission to support such a contention and irrespective of the argument, I do not think it would be an appropriate exercise of my discretion to grant costs on such a basis.
Orders
For the reasons set out above I make the following orders.
1. That the Second Respondent pay the Applicant's costs of and incidental to the appeal fixed in the sum of $7,699.00.
2. That the First Respondent pay the Applicant's costs thrown away by reason of the adjournment fixed in the sum of $1,210.00.
3. Should there be any dispute as to the quantum of the costs of and incidental to the appeal as set out in Order 1 above, I give the parties liberty to apply.
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