QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Reasons for Decision
By consent order, I allowed an appeal between Ms Katarzyna Kujawa ("the Appellant") and the Workers' Compensation Regulator ("the Regulator"). Costs were to be agreed by the parties and, failing agreement, there was liberty to apply.
The parties were unable to reach agreement.
Thus the question for decision is whether costs should be ordered in favour of the Appellant where the Regulator conceded her appeal prior to the actual hearing of the matter.
Legislation and Principles
While s 545 of the Industrial Relations Act 2016 ("the IR Act") sets out a general power to award costs,[1] s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 ("the WCR Act") provides that costs of the hearing are at the discretion of the appeal body (here, the Commission),[2] except to the extent provided under a regulation.
[1] See also Kim v Workers' Compensation Regulator [2019] ICQ 14, 16 [53] ('Kim').
[2] Workers' Compensation and Rehabilitation Act 2003 s 548A.
The Workers' Compensation and Rehabilitation Regulation 2014 ("the Regulation") relevantly provides:
A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission…
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- AGLC
- Kujawa v Workers' Compensation Regulator [2020] QIRC 179
- Case
- [2020] QIRC 179
- Decision Date
CaseChat Overview and Summary
The legal issues in the case revolved around the principle of costs following the event and whether an order for costs could be made against the Appellant despite the Regulator conceding the appeal. The Appellant argued that the Regulator should bear its own costs because it had conceded the appeal, whereas the Regulator argued that it was entitled to costs due to the Appellant's delay in disclosing critical evidence.
The Commission found that the Appellant had delayed in disclosing critical evidence, which had only become available six months after the stipulated deadline for serving expert reports. The Regulator was satisfied with the new evidence and conceded the appeal. The Commission concluded that the Appellant's delay in disclosing this evidence justified an order for costs against the Appellant, despite the Regulator conceding the appeal. The principle of costs following the event was not absolute and could be set aside where there was a justifiable reason for doing so.
The final orders of the Commission were that each party bore its own costs. This outcome reflected the Commission's view that the Appellant's delay in disclosing critical evidence justified an order for costs against her, even though the Regulator had conceded the appeal.
Orders
Orders of the court
1. Each party bears its own costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Directions Order dated 16 July 2019 required the Appellant to serve any further expert reports to be relied on in respect of the proceedings by 26 November 2019. Consideration The review decision considered inter alia Dr Whittington's report dated 20 November 2018 and Ms Little's work capacity certificate dated 12 November 2018. As best I can tell, there was no evidence provided by Dr MacDonald on file.[13][13] Review decision of the Workers' Compensation Regulator dated 18 June 2019, 4. Had the matter progressed to an actual hearing, determination of the appeal would have potentially turned on the evidence of three expert witnesses:· Ms Christiana Little, psychologist;· Dr Mark Whittington, psychiatrist; and· Dr Tim MacDonald, psychiatrist. Before the Commission, when the parties filed their statements of facts and contentions and attended the conference, they did so furnished with the same, or largely the same, medical evidence as was before the review officer. The Appellant makes the somewhat contradictory assertion that the Regulator 'has conceded the appeal after receiving further evidence from Dr McDonald [sic] and Ms Little', before then making the contention that their evidence 'was not new'. At the conference on 9 March 2020, Counsel for the Regulator made a submission that the report of Dr Whittington dated 20 November 2018 was insufficient in that it was not based on the Appellant's complete psychiatric history as set out in her medical records.[14] [14] Transcript of Proceedings, Kujawa v Workers' Compensation Regulator (Queensland Industrial Relations Commission, WC/2019/129, McLennan IC, 9 March 2020) 6. At the request of the Appellant's representatives, Dr Whittington provided an 'updated assessment and report' dated 2 June 2020 and Dr MacDonald provided a psychiatric report dated 3 June 2020. The reports were disclosed to the Regulator on 3 June 2020, six months after the final dates the Appellant was expected to serve expert reports on the Regulator. The Regulator maintains Dr MacDonald's report dated 2 June 2020 was 'the first opinion from a psychiatrist based on an accurate history' in which it was concluded the work-related physical injury was 'the causative factor' and one 'significantly contributing to her psychiatric injury'.[15] [15] Written Submissions of the Regulator filed 30 September 2020, 2 [12]. It was not until 4 June 2020 that the Appellant further disclosed a 'diary note of teleconference' by Ms Little (which bears the date 7 April 2020, signed 13 May 2020) despite having received it weeks earlier on 14 May 2020. Altogether, I accept the updated reports and conference notes constituted 'new and critical evidence', as the Regulator puts it, which catalysed the concession of the appeal. The new material satisfied the Regulator that the Appellant's psychiatric injury met the definition under the WCR Act in circumstances where the previous medical reports had not. It would be a different story if the Regulator possessed the reports and conference notes at the commencement of the appeal or in the lead up to the conference, yet blithely or obstinately maintained its defence thereafter.