RW & G Johnston Pty Ltd v Workers' Compensation Regulator

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

RW & G Johnston Pty Ltd v Workers' Compensation Regulator and Anor [2024] QIRC 265

PARTIES:  

RW & G Johnston Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(First Respondent)

AND

Durston, Peta

(Second Respondent)

CASE NO.:

 WC/2021/146

PROCEEDING:

Applications for costs

DELIVERED ON:

 15 November 2024

HEARING DATES: 

22 March 2024

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

The orders contained in paragraph [155] of these reasons for decision
CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – the Appellant employed the Second Respondent who successfully made an application to WorkCover Queensland for workers' compensation – the Appellant, pursuant to the Workers' Compensation and Rehabilitation Act 2003, applied for a review of the WorkCover Queensland decision with the First Respondent – the First Respondent confirmed the earlier decision of WorkCover Queensland – the Appellant appealed against the First Respondent's decision to the Queensland Industrial Relations Commission – the First Respondent subsequently advised the Commission that it would not take an active role in the Appellant's appeal and the Second Respondent elected to be a party to the Appellant's appeal – directions made for the hearing and determination of the Appellant's appeal including trial dates –  consent order then made that the Appellant's appeal be allowed, that the Second Respondent's application for workers' compensation was not one for acceptance, that the parties were at liberty to  apply for costs and that the Second Respondent's application to vacate the trial dates be granted – Appellant applied for a costs order against the First Respondent, under s 132(3) of the Workers' Compensation Regulation 2014, with a fifty percent uplift – Appellant also applied for a costs order against the Second Respondent, on the indemnity basis or on the standard basis under s 545 of the Industrial Relations Act 2016 or, in the alternative,  under s 132(3) of the Workers' Compensation Regulation 2014 with a fifty percent uplift – whether s 545 of the  Industrial Relations Act 2016 is a source of power to award costs against the Second Respondent – whether a costs order can be made against the First Respondent and the Second Respondent under s 132 of the Workers' Compensation Regulation 2014 in the circumstances of the case – s  545 of the Industrial Relations Act 2016 is not a source of power to award costs against the Second Respondent – s 132 of the Workers' Compensation Regulation 2014, in the circumstances of the case, is not a source of power to award costs against the First Respondent and the Second Respondent – the Appellant's applications for costs against the First Respondent and the Second Respondent dismissed
LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 1999, s 274 and s 677

Industrial Relations Act 2016, s 487, s 541, s…

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Details
Case
[2024] QIRC 265
Decision Date

CaseChat Overview and Summary

In the matter of RW & G Johnston Pty Ltd v Workers' Compensation Regulator, the appellant, RW & G Johnston Pty Ltd, sought a review of a workers' compensation decision made by WorkCover Queensland, which was confirmed by the Workers' Compensation Regulator (the first respondent). The employee (the second respondent) also participated in the appeal. The appellant applied for costs against both the Regulator and the employee, arguing for a fifty percent uplift on the costs under relevant legislation. The primary legal issues revolved around the applicability of specific sections of the Industrial Relations Act 2016 and the Workers' Compensation Regulation 2014 in awarding costs against the second respondent and the first respondent.

The court examined whether section 545 of the Industrial Relations Act 2016 could be a basis for awarding costs against the second respondent. It was determined that this section did not provide the necessary authority for such an award. Additionally, the court assessed whether section 132 of the Workers' Compensation Regulation 2014 could be invoked to grant costs against both the first and second respondents, given the specific circumstances of the case. The court concluded that this section did not serve as a source of power to award costs in these particular circumstances. Consequently, the appellant's applications for costs against both the Regulator and the employee were dismissed.

The court's reasoning was grounded in the interpretation of statutory provisions and the precedent set by previous cases. It found that the Commission was not bound by certain decisions that applied section 545 of the Industrial Relations Act 2016 to similar appeals. Furthermore, it held that QNMU was not binding authority on the matter, and upon construction, section 545 did not apply to the appeals under the Workers' Compensation and Rehabilitation Act 2003.

The final orders were that the appellant's applications for costs against the Workers' Compensation Regulator and the employee were dismissed.

Orders

Orders of the court

The orders contained in paragraph [155] of these reasons for decision

Background

Background to the litigation

As a consequence:·Johnston's application for costs against Ms Durston will be dismissed; and·Johnston's application for costs against the Regulator will be dismissed.Background Pursuant to earlier Directions Orders made by the Commission in September 2021 and April 2022, Johnston and the Regulator had, in respect of Johnston's appeal, filed and served statements of facts and contentions and lists of witnesses, and had also exchanged outlines of evidence and expert reports. The hearing of Johnston's appeal was, in the first instance, set down for four days to commence on 28 March 2023 ('the March hearing'). However, by email from the Regulator to the Industrial Registry sent on 23 March 2023, the Regulator stated that:·on 21 March 2023, Johnston's solicitors made further disclosure to the Regulator which included three reports of a non-medical nature;·its position was that:- it needed to confer with:§the authors of one of the report; and§one of the persons mentioned in one of the other reports;- it needed to re-conference with Ms Durston and her medical practitioners; - because of the availability of its appeals officer and counsel, it could not conduct the conferences it needed to conduct in time for the scheduled commencement of the March hearing; - if its position in relation to Johnston's appeal changed, it was required to advise Ms Durston of that and give her the opportunity to be a party to the appeal; and- upon explaining those circumstances to Johnston's solicitors, it sought Johnston's consent to adjourn the March hearing;·Johnston's solicitors subsequently advised the Regulator that it would only consent to an adjournment of the March hearing if the Regulator paid Johnston's costs thrown away, an offer which was rejected by the Regulator for reasons that included it was only seeking the adjournment due to the late disclosure of documents and that, pursuant to s 558(3) of the WCR Act, the Commission can only order the costs of the hearing; and·as a consequence, it made a request to the Commission to adjourn the March hearing in order for it to conduct the conferences to which it referred. [3][3] The affidavit of Paul Anthony Edward Everingham filed on 13 October 2023 ('Mr Everingham's first affidavit'), exhibit 'PAE 10'. I heard the Regulator's 'request' to adjourn the March hearing on 24 March 2023. After receiving submissions from counsel for both the Regulator and Johnston, I adjourned the March hearing. In granting the adjournment, I stated:The material provided by the appellant was provided late. In practical terms that was five business days before the commencement of the hearing. I accept the need for the Workers’ Compensation Regulator to confer with the witnesses it has identified. I also accept as a matter of practical experience and common sense it may be difficult to confer with those witnesses in the time available - in the time that was available between Tuesday of this week - sorry, between Tuesday or Wednesday of this week and Tuesday of next week: a difficulty particularly accentuated in relation to conferring with medical practitioners. The regulator does not represent the injured in this matter. Its position in the appeal is to resist the appeal against the review - against its review decision - in the hearing de novo. As the regulator states in its correspondence to the appellant, its position in relation to the appeal may change in light of the late disclosed material from the appellant, and arising out of the conferences the regulator will conduct with the witnesses it has identified.[4] [4] T (24 March 2023) 1-6, ll 17-31.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the parties' submissions, to determine whether s 545 of the IR Act is a source of power for the Commission to make an order for costs against Ms Durston, there are three discrete questions to answer, namely:·first, is the Commission bound by the decisions of the Court in Kim and Gambaro in respect of the application of s 545 of the IR Act to appeals to it under ch 13, pt 3, div 1 of the WCR Act? ·secondly, is QNMU binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act? ·thirdly, if QNMU is not binding authority for the proposition that s 545 of the IR Act does not apply to appeals under ch 13, pt 3, div 1 of the WCR Act, as a matter of construction, does s 545 of the IR Act apply to appeals under ch 13, pt 3, div 1 of the WCR Act?Is the Commission bound by the decisions of the Court in Kim and Gambaro in respect of the application of s 545 of the IR Act to appeals to it under ch 13, pt 3, div 1 of the WCR Act? As referred to earlier, Johnston submits that two decisions of the Court, Kim and Gambaro, have held that s 545 of the IR Act is applicable to an appeal under s 549 of the WCR Act and that those decisions are binding on the Commission. Under the common law system of adjudication, the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case.[41] The holding of a case, the rule of the case and the ratio decidendi of the case are different. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[42] McHugh J stated:59 The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue – for the plaintiff or the defendant. The rule of the case is the principle for which the case stands – although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision.[41] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, [60] (McHugh J). [42] Ibid. In Kim, at first instance before the Commission, the appellant filed an appeal against a review decision of the Regulator under ch 13, pt 3, div 1 of the WCR Act. The Commission, after receipt of written submissions, granted an oral application made by the Regulator, on the first day of the appeal after the appellant's opening submissions, to dismiss the appeal pursuant to s 541 of the IR Act.[43] That is, the appeal to the Commission was not disposed of by way of the review decision being confirmed pursuant to s 558(1)(a) of the WCR Act. In doing so, the Commission ordered that the appellant pay the Regulator's costs of, and incidental, '… to this Application and the substantive Appeal.'[44] No section of any Act was cited, in the Commission's decision, as the Commission's source of power to make the order for costs that was made. [43] Kim, Insung v Workers' Compensation Regulator [2018] QIRC 048, [2], [13] and [40].[44] Ibid [41].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.