Kujawa v Workers' Compensation Regulator

Case [2020] QIRC 179


QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kujawa v Workers' Compensation Regulator QIRC [2020] 179

PARTIES:

Kujawa, Katarzyna Kasia 
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2019/129

PROCEEDING:

Application in existing proceedings
DELIVERED ON: 21 October 2020

MEMBER:

HEARD AT:

Knight IC

On the Papers

ORDER:

1.      Each party bears its own costs.
 CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where appeal conceded by Regulator prior to hearing – where parties unable to agree on costs – whether costs order should be made.  

LEGISLATION:

CASES:

Industrial Relations Act 2016

Industrial Relations (Tribunals) Rules 2011

Workers' Compensation and Rehabilitation Act 2003

Workers' Compensation and Rehabilitation Regulation 2014

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1

Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 104.

Cope v Workers' Compensation Regulator [2019] QIRC 166

Davidson v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 008

Deceased Estate of Barry James Willis v Workers' Compensation Regulator (No. 2) [2020] QIRC 094

Harris v Caladine (1991) 172 CLR 84

Hooyer v Workers' Compensation Regulator [2020] QIRC 163

Jason Canton v Workers' Compensation Regulator [2019] QIRC 145

Kim v Workers' Compensation Regulator [2019] ICQ 14

Latoudis v Casey (1990) 170 CLR 534

Mimica v Q-Comp (2007) 184 QGIG 31

Northern Territory v Sangare (2019) 265 CLR 164

Panas v Q-COMP [2011] QIRC 84

Q-COMP v Australian Language Schools Pty Ltd (No. 2) [2010] ICQ 42

Queensland Bulk Water Supply Authority v Workers' Compensation Regulator [2019] QIRC 054

Simon Blackwood (Workers' Compensation Regulator) v Egan [2014] ICQ 020

Trimble v Q-COMP AND State of Queensland (Queensland Audit Office) [2013] QIRC 135

Truffet v Workers' Compensation Regulator [2020] ICQ 013

Verhagen v Q-COMP (2008) 189 QGIG 542

Workers' Compensation Regulator v Michelle Debra Schepis [2017] QIRC 021

Reasons for Decision

  1. 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.  

  2. The parties were unable to reach agreement.

  1. 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

  1. 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.

    [2] Workers' Compensation and Rehabilitation Act 2003 s 548A.

  1. 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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Details
AGLC
Kujawa v Workers' Compensation Regulator [2020] QIRC 179
Case
[2020] QIRC 179
Decision Date

CaseChat Overview and Summary

Kujawa v Workers' Compensation Regulator was a case before the Queensland Industrial Relations Commission, where the Appellant, Kujawa, sought to appeal a decision by the Workers' Compensation Regulator rejecting her application for compensation for a secondary psychiatric injury. The Regulator conceded the appeal prior to a hearing, following the provision of new evidence. The crux of the matter before the Commission was whether the Regulator was entitled to an order for costs, despite conceding the appeal.

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

In the ordinary case, costs 'follow the event'.[9] This is the general rule.[10][9] Australian Language Schools (n 6) [4]; Davidson v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 008, 7 [24]; Verhagen v Q-COMP (2008) 189 QGIG 542, 546.[10] Truffet v Workers' Compensation Regulator [2020] ICQ 013, 8 [25].Background and Chronology What led to the Appellant's appeal was a review decision of the Regulator on 18 June 2019 which affirmed an earlier decision of WorkCover to reject her application for compensation for a secondary psychiatric injury. The review decision evinces that the Regulator was not satisfied the Appellant's employment was the major significant contributing factor in the onset of her psychological injury. This arose in circumstances where there was some apparent uncertainty within the medical evidence as to whether the Appellant's psychological injury could be attributed to a work-related aggravation or a pre-existing personal back injury.[11][11] Review decision of the Workers' Compensation Regulator dated 18 June 2019, 7. The Appellant lodged her appeal on 16 July 2019. It is helpful to set out a chronology of the relevant events after this time:[12][12] my emphasis. 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.

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.