Pope v Workers' Compensation Regulator - [2016] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Pope v Workers' Compensation Regulator [2016] QIRC 105
PARTIES:	Pope, Peter Mark (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/171
PROCEEDING:	Application for costs
DELIVERED ON:	12 October 2016
HEARING DATE:	30 September 2016
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Neate
ORDER:	The Workers' Compensation Regulator is to pay the costs of Mr Pope of and incidental to the appeal in WC/2015/171 in the sum of $5,341.55.
CATCHWORDS:	COSTS - WORKERS' COMPENSATION APPEALS - two appeals by same appellant heard together - first appeal settled during the hearing and consent orders made - appeal allowed in the second appeal - Workers' Compensation Regulator ordered to pay the Appellant's costs of and incidental to the second appeal - amount payable to be calculated in accordance with relevant statutory scale of costs - costs not agreed between the parties - dispute over whether some items in statutory scale of costs are payable - whether counsel and solicitor entitled to more than scale amounts for one fee for Day 1 of hearing when both appeals were being heard - scope of Commission's discretionary power to award costs - factors guiding exercise of discretionary power

CASES:

Workers' Compensation and Rehabilitation Act 2003
Workers' Compensation and Rehabilitation Regulation 2014
Uniform Civil Procedure Rules 1999 Schedule 3

Bechara v Legal Services Commissioner [2010] NSWCA 369
Blackwood v Egan [2014] ICQ 020
Latoudis v Casey (1990) 170 CLR 534
Meade v Queensland Ambulance Service [1996] QSC 62
Oshlack vRichmond River Council (1998) 193 CLR 72
R v Hore; Ex parte Brisbane City Council [1969] Qd R 75
Wilson v Lambkin & Ors (No 2) [2010] QDC 302

APPEARANCES:

H. Dignan of Turner Freeman Lawyers, for the Appellant
D. Callaghan of Counsel, for the Respondent

Decision

This is an application by Peter Mark Pope for costs in relation to one of two appeals by him to the Queensland Industrial Relations Commission ("the Commission") against two decisions of the Workers' Compensation Regulator ("the Regulator"). The Commission as presently constituted heard the appeals on 24 and 25 August 2015.
Background
The first appeal (WC/2015/170) was against a decision by the Regulator dated 12 May 2015, and sent to Mr Pope on 12 June 2015, that confirmed the decision of WorkCover Queensland ("WorkCover") to terminate his entitlement to compensation (in relation to the injury sustained on 1 June 2014) from 11 December 2014 in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
Having heard the evidence of Dr Simon Gatehouse on 24 August 2015, the parties reached agreement in relation to the first appeal. By consent of the parties, the Commission made the following orders on 25 August 2015:

1.The Appeal is allowed.
2.The decision of Simon Blackwood (Workers' Compensation Regulator) (R41024) dated 12 June 2015 in respect of WorkCover claim number S13UV156233 is set aside and substituted with another decision that the Appellant has an ongoing entitlement to weekly benefits and medical expenses past 11…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QIRC 105
Decision Date: 12 October 2016

CaseChat Overview and Summary

The case of Pope v Workers' Compensation Regulator concerns an application by Peter Mark Pope for costs related to one of two appeals against the Workers' Compensation Regulator's decisions. The appeals were heard by the Queensland Industrial Relations Commission on 24 and 25 August 2015. The first appeal was settled, and consent orders were made. The second appeal was against the Regulator's decision to reject Pope's application for compensation, and the Commission allowed the appeal on 23 September 2015. The primary dispute between the parties pertains to the costs associated with the second appeal, specifically the fees of counsel and the instructing solicitor's allowances for both days of the hearing.

The legal issues before the court included whether the Workers' Compensation Regulator should be liable for the full scale of costs as outlined in the statutory scale, and whether counsel and solicitor were entitled to more than the scale amounts for one fee for Day 1 of the hearing when both appeals were being heard. The court had to consider the scope of the Commission's discretionary power to award costs and the factors guiding the exercise of this discretionary power. The court examined whether the costs claimed by Pope's legal team were appropriate and whether the amounts claimed were justified under the circumstances of the case.

In determining the appropriate costs, the court considered the statutory framework provided by section 132 of the Workers' Compensation and Rehabilitation Regulation 2014. The court acknowledged that the decision to award costs was within the discretion of the Commission, but it also noted that the Commission could allow costs up to 1.5 times the amounts provided for in the scale if it was satisfied that the amounts were inadequate. The court held that the Regulator was to pay the Appellant's costs of and incidental to the second appeal, amounting to $5,341.55. The court calculated this amount in accordance with the relevant statutory scale of costs, taking into account the specific circumstances of the case.

In summary, the court allowed the appeal regarding the costs in the second appeal and ordered the Workers' Compensation Regulator to pay the Appellant's costs of and incidental to the second appeal in the sum of $5,341.55. The court's decision was based on the statutory framework and the exercise of the Commission's discretion to award costs, considering the nature and complexity of the appeal.

Orders

Orders of the court

The Workers' Compensation Regulator is to

pay the costs of Mr Pope of and incidental to

the appeal in WC/2015/171 in the sum of

$5,341.55.

Background

Background to the litigation

This is an application by Peter Mark Pope for costs in relation to one of two appeals by him to the Queensland Industrial Relations Commission ("the Commission") against two decisions of the Workers' Compensation Regulator ("the Regulator"). The Commission as presently constituted heard the appeals on 24 and 25 August 2015.Background The first appeal (WC/2015/170) was against a decision by the Regulator dated 12 May 2015, and sent to Mr Pope on 12 June 2015, that confirmed the decision of WorkCover Queensland ("WorkCover") to terminate his entitlement to compensation (in relation to the injury sustained on 1 June 2014) from 11 December 2014 in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). Having heard the evidence of Dr Simon Gatehouse on 24 August 2015, the parties reached agreement in relation to the first appeal. By consent of the parties, the Commission made the following orders on 25 August 2015: The second appeal (WC/2015/171) was against the Regulator's decision to confirm the decision of WorkCover to reject Mr Pope's application for compensation in accordance with s 32 of the Act. The relevant event in relation to the injury occurred on 21 November 2014. On 23 September 2015, the Commission published reasons for decision and made the following orders: The parties negotiated about the costs payable in relation to the first appeal and the second appeal. The Regulator agreed to pay the costs of the first appeal as agreed between the parties. Costs are no longer in dispute in that matter. In relation to the second appeal, the dispute centres on the appropriateness of counsel's fees and instructing solicitor's allowances for both days of the hearing. In particular, the issue between the parties is whether the Regulator should pay the following costs: Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ("the Regulation") sets out the power to award costs. The parts conferring power on the Commission provide:(1) "A decision to award costs of a proceeding heard by … the industrial commission is at the discretion of the … commission.(2) If the … commission awards costs-(a)costs in relation to counsel's or solicitor's fees are as under the Uniform Civil Procedure Rules 1999, schedule 3, part 2, scale E; ...(3) The … 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 … 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 scale of costs in schedule 3, part 2, scale E includes provision for:(a) counsel's fees on trial or hearing (other than an application in a proceeding) - first day - $1,120.00 (6(f));(b) counsel's fees on each subsequent day of hearing (if the matter occupies 2 or more hours of the day and the appearance is certified for by the court) - $750.00 (6(g));(c) counsel's fees on each subsequent day of hearing not included in 6(g)) - $383.00 (6(h));(d) on hearing with counsel - attendance of a solicitor with counsel (if attendance is certified for by the court) - each day - $450.00 (8(a)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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