Nathwani v Workers' Compensation Regulator (No. 2)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nathwani v Workers' Compensation Regulator (No. 2) [2021] QIRC 351
PARTIES:	Nathwani, Saher (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/175
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	18 October 2021
DATE OF WRITTEN SUBMISSION:	Respondent's written submissions filed on 11 October 2021
MEMBER: HEARD AT:	Merrell DP On the papers
ORDER:	The Respondent pays the Appellant's costs fixed in the sum of $3,820.60.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - APPEAL AGAINST REVIEW DECISION - COSTS - appeal decision in favour of Appellant - whether costs of the hearing should follow the event - costs order in favour of Appellant
LEGISLATION:	Uniform Civil Procedure Rules 1999, sch 2, pt 2 Workers' Compensation and Rehabilitation Act 2003, s 32 and s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132
CASES:	Nathwaniv Workers' Compensation Regulator [2021] QIRC 325 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
APPEARANCE:	Mr B. McMillan of Counsel directly instructed by Ms O. Steele of the Respondent.

Reasons for Decision
Introduction

By decision dated 21 September 2021, I made an order setting aside the Respondent's decision and substituting another decision, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers'Compensation and Rehabilitation Act 2003 ('the Act'). The order was made pursuant to s 558(1)(c) of the Act.[1] I also ordered that the parties make submissions on the costs of the hearing and that unless otherwise ordered, I would make the decision about costs on the papers.
[1] Nathwaniv Workers' Compensation Regulator [2021] QIRC 325.

This is my decision about the costs of the hearing.

The Regulator's submissions

The Regulator submits, having regard to the decision of Davis J, President, in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) ('QNMU'),[2] that:
·the power to award the costs of the hearing comes from the Act;
·section 558(3) of the Act is limited to the costs of the hearing; and
·the Commission must give reasons for the exercise of the discretion to award costs.
[2] [2021] ICQ 13 ('QNMU'), [16]-[32].
There can be no dispute about the correctness of those submissions.

Section 558 of the Act provides:
558 Powers of appeal body
(1)In deciding an appeal, the appeal body may-
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute another decision; or
(d)set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
(2)If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
(3)Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.

In addition, QNMU is authority for the proposition that, having regard to the power to award costs under s 558 of the Act, costs ought ordinarily follow the event.[3]
[3] QNMU (n 2) [16].

The Regulator seeks an order that it pays the Appellant's costs to the extent permitted pursuant to s 132(2) of the Workers' Compensation and Rehabilitation Regulation 2014 ('the Regulation').
Section 132 of the Regulation provides:
132 Costs-proceeding before industrial magistrate or industrial commission
(1)A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission.
(2) If the magistrate or commission awards costs-
(a) costs in relation to counsel’s or solicitor’s fees are as under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, scale C; and
(b)costs in relation to witnesses’ fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and
(c) costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.
(3) The magistrate or commission may allow costs up to 1.5 times the amounts provided for under subsection (2)(a), in total or in relation to any item, if the magistrate or commission is satisfied the amounts are inadequate having regard to-
(a) the work involved; or
(b) the importance, difficulty or complexity of the matter to which the proceeding relates.

The Regulator further submits that the Appellant was successful in the appeal, has incurred costs of the hearing including for counsel who appeared at the hearing and that there is no compelling reason why costs of the hearing should not be ordered in the Appellant's favour.
Having regard to scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, the Regulator refers to the following itemised costs:
(a)      Item 8 (f) Counsel's fees first day of hearing - $1,545.00
(b)      Item 8 (g) Counsel's for [sic] subsequent day of hearing = $1,032.00
(c)      Item 10(a) Solicitor attendance with Counsel - 2 days @ $621.80 = $1,243.60
(d)      Total = $3,820.60
The Regulator seeks an order that it pays the Appellant's costs of the hearing, fixed in the amount of $3,820.60.
The Appellant made no submissions about costs.
A costs order should be made in favour of the Appellant
In my view, to do justice between the parties, an order should be made that the Regulator pays the Appellant's costs of the hearing. The Appellant was successful in prosecuting her appeal. There are no reasons as to why costs should not follow the event and therefore the Appellant should be awarded her allowable costs for hearing on 1 and 2 July 2020.

Having regard to the history of the Appellant's appeal, the itemised costs identified by the Regulator are reasonable.
Order
I make the following order:

The Respondent pays the Appellant's costs fixed in the sum of $3,820.60.

Nathwani v Workers' Compensation Regulator (No. 2) concerned an appeal against a review decision made by the Workers' Compensation Regulator. The Appellant, Nathwani, sought compensation for an injury sustained during the course of their employment. The dispute centred on the Appellant's entitlement to compensation and the liability of the Respondent for the compensation. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before QCAT was whether the Appellant was entitled to compensation under the Workers' Compensation Act. Additionally, the court needed to decide whether the Respondent was liable to pay the compensation, and whether the costs of the hearing should follow the event. The Appellant argued that they were entitled to compensation and that the Respondent was liable to pay it. The Respondent contested these claims, asserting that the Appellant was not entitled to compensation and that they were not liable for any payment.

QCAT found in favour of the Appellant on the merits of the appeal. The Tribunal determined that the Appellant was indeed entitled to compensation and that the Respondent was liable to pay it. Regarding the costs of the hearing, QCAT held that the costs should follow the event, meaning that the Respondent should bear the costs of the hearing. Consequently, QCAT made a costs order in favour of the Appellant, fixing the amount at $3,820.60.

The final orders of the Tribunal were that the Respondent was to pay the Appellant's costs, in the sum of $3,820.60. This decision affirmed the Appellant's entitlement to compensation and the Respondent's liability to pay it, while also addressing the costs associated with the hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established