Simon Blackwood (Workers' Compensation Regulator) v Roach

[2014] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  Simon Blackwood (Workers' Compensation

Regulator) v Marilyn Roach [2014] QIRC 141

PARTIES:	Simon Blackwood (Workers' Compensation
Regulator)
(Applicant)
v
Marilyn Roach
(Respondent)
CASE NO:	WC/2013/91
PROCEEDING:	Application for Costs
DELIVERED ON:	10 September 2014
HEARING DATE:	15 April 2013
MEMBER:	Industrial Commissioner Knight
ORDERS:	1. The Respondent pay the costs of the

Applicant in the sum of $2057.50

2.      The costs be paid within twenty-eight days of the release of this decision.

CATCHWORDS:	WORKERS' COMPENSATION - APPLICATION FOR COSTS - where the Respondent appealed against decision of the Regulator - Appeal withdrawn prior to hearing - Application for costs - Applicant undertook hearing preparation prior to withdrawal of Appeal - repeated non-compliance by Respondent - Awarding costs discretionary - costs are compensatory - Costs Awarded to Applicant
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 552A, s 558(3), s 113,
Uniform Civil Procedure Rules 1999 Uniform Civil Procedure (Fees) Regulation 1999
Johnston v Workcover (2000) 165 QGIG 789
Dalyrymple Bay Coal Terminal Pty Ltd v Workcover
Queensland (2000) 163 QGIG 82 Hill v Q-COMP (2009) 190 QGIG 7
Q-COMP v Australian Language Schools Pty Ltd
(C/2010/5) (No. 2) - Decision
<
Cuttler v Q-Comp (2009) 190 QGIG 9 Wayne McAlinden AND Q-COMP (WC/2008/92) - Decision < John Henry Edwards AND Q-COMP (WC/2012/52) - Decision <
Ardent Leisure Limited AND Q-COMP AND Jasmine
Rolfe (WC/2010/112) - Decision < Kylie Michelle Reed v Q-COMP 192 QGIG 99
Coles Group Limited and Dean Clarence Madden
and Q-COMP Review Unit and BHP Coal Ltd (20 June 2008) Magistrates Court decision 00202595/07(3) Blackwood v Egan (2014) ICQ 020 Latoudis v Casey (1990) 170 CLR 534; (1990) HCA 59
APPEARANCES:	Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).
Ms L. Willson, Counsel instructed by Parker Simmonds Solicitors and Lawyers for the Respondent.

Decision

[1]      This is an application by Simon Blackwood (Workers' Compensation Regulator) (the "Regulator") for an order for costs filed on 19 March 2013. The application for costs relates to an Appeal (WC/2012/180) by Marilyn Joan Roach in respect of a decision of the Regulator dated 2 April 2012. The decision confirmed the decision of WorkCover Queensland to reject Ms Roach's application for compensation.

[2]      Directions in relation to the substantive matter, including s 552A conference and hearing dates, in addition to other requirements with respect to document exchange and witness details, were issued by Vice President Linnane on 25 September 2012, and again on 12 December 2012.

[3]      Parker Simmonds Solicitors, on behalf of Ms Roach provided a copy of a Notice of Discontinuance to the Regulator on or around 5 March 2013, some five weeks prior to the hearing of the matter. Ms Roach's representatives sought agreement that each party bear its own costs, however the Regulator did not agree to the request.

[4]      The Regulator is now seeking an order that the Respondent pay its costs arising out of preparation for the hearing in respect of matter WC/2012/180. In the event it is successful in its application, the Regulator is also seeking an order for the Respondent to pay its costs of and incidental to the present application.

Background

[5]      To understand the Regulator's application and my Decision in relation to it, it is necessary to consider some of the history of the substantive appeal, as follows:

4 May 2012	Ms Roach filed a Notice of Appeal against a decision of the Regulator
(formerly Q-COMP) dated 2 April 2012.
10 May 2012	The parties were directed to attend a mention before Deputy President Swan at the Queensland Industrial Relations Commission on 9 July 2012.
24 September 2012	Ms Roach's matter was mentioned at a second callover before Vice President Linnane where further directions were issued relating to the appeal including the exchange of documents, witness lists, the allocation of a s 552A conference date of 21 November 2012 and the further allocation of five hearing days from 15 to 19 April 2013.
29 October 2012	The Regulator sent a facsimile (copied to the Industrial Registry)
highlighting the Appellant's non-compliance with Order No. 2 (supplying a
list of documents) of a Further Directions Order issued by the Vice
President dated 25 September 2012, requesting the Appellant provide the
material by close of business 30 October 2012.
30 October 2012	Parker Simmonds filed a list of Documents in accordance with Order No.
2.
31 October 2012	The Regulator provided Ms Roach's representatives, Parker Simmonds
with requested copies of documents and further details with respect to
copies of documents it required.
5 November 2012	The Regulator sent a facsimile (copied to the Industrial Registry) again highlighting the Appellant's non-compliance with the Further Directions Order dated 25 September 2012, requesting the documents be provided by close of business 6 November 2012.
9 November 2012	The Regulator contacted the Vice President's Chambers advising of the Appellant's non-compliance with the directions orders, subsequently raising concerns in relation to the time consumed following up the Appellant and further requesting the matter be brought on for an urgent mention to address non-compliance issues.
20 November 2012	Parker Simmonds Solicitors contacted the Commission advising it had been unable to procure a barrister for the s 552A conference scheduled for the following day, requesting it be adjourned to another date. The Vice President's associate responded to the request from Parker Simmonds Solicitors advising the date for the conference had been set down on 25 September 2012 confirming the conference would go ahead the following day or not at all
21 November 2012	A conference in the substantive matter took place before Commissioner
Black, where the basis upon which the Regulator would be defending the
appeal was communicated to Parker Simmonds Solicitors. The Regulator
identified potential witnesses who may be required to give evidence in the
matter.
26 November 2012	Correspondence forwarded to Ms Roach's representatives from the
Regulator highlighting an undertaking by Parker Simmonds during the
s 552A conference to provide a statement of particulars by 10 December
2012.
12 December 2012	The Industrial Registry receives further correspondence from the Regulator
referring to the failure of Ms Roach's representatives to provide requested
information in a timely manner and further requesting the matter be set
down to resolve its concerns.
12 December 2012	Amended Further Directions Order distributed to the parties. Statement of
Events from Parker Simmonds received by the Registry on the same day.
7 & 8 February 2013	The Regulator conducts witness conferencing in preparation for the April
2013 hearing. Includes conferencing with potential witnesses on
7 February 2013 and a further conference on 8 February 2013 which
involved the Regulator and Counsel attending Ms Roach's workplace at
Gold Coast airport.
8 February 2013
Meeting held and attended by Counsel for Ms Roach, Ms Roach and Parker
Simmonds lawyers where Ms Roach produces further material and documents in support of her claim.
26 February 2013	Regulator contacts the chambers of Vice President Linnane to advise the Appellant has not complied with Directions 2 and 3 of the Amended Further Directions Order (dated 12 December 2013).
1 March 2013	Vice President's associate requests Parker Simmonds file material, as per directions two and three of the Amended Further Directions Order, as a matter of urgency.
5 March 2013	Vice President advised by the Regulator the Appellant's representatives not complying with Directions 2 and 3 of the Amended Further Directions Order (dated 12 December 2013).
5 March 2013	Parker Simmonds Solicitors receives an email from the Commission confirming the Appellant would be provided until 9:00am the following day (6 March 2013) to comply with directions, indicating the Commission would consider entertaining an application by the Regulator to have the matter struck out if Ms Roach failed to comply with the Directions.
6 March 2013	Parker Simmonds Solicitors files a notice discontinuance in the Industrial Registry, providing a copy to the Regulator.

[6]      On filing a notice of discontinuance in the Industrial Registry, the Regulator submitted Ms Zoe Ford from Parker Simmonds Solicitors contacted Appeals Officer, Leisha Shield on 6 March 2013 seeking an agreement that each party bear its own costs (Exhibit 1).

[7]      The Regulator was not amenable to this request, confirming it would allow a seven day period in which Ms Roach's representatives could provide a consent order including costs; further confirming if a consent order was not forthcoming then the Regulator would bring an application for costs and seek costs of that application (Exhibit 1, LS - 2).

[8]      On the same day, Parker Simmonds Solicitors forwarded a facsimile to the Regulator advising Ms Roach's agreement to discontinue the appeal was on the basis that each party bear its own costs.

[9]     In response, a facsimile was forwarded to Parker Simmonds Solicitors from the Regulator confirming it would be seeking costs and did not agree to the Appellant discontinuing on the basis that each party bear its own costs (Exhibit 1, LS - 4).

[10] On 19 March 2019, the Regulator filed an application for costs arising out of preparation for the hearing in respect of matter WC/2012/180 pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

Relevant Legislation

[11]    Regulation 113 of the Act deals with the costs of proceedings and provides as follows:

"113 Costs - proceeding before industrial magistrate or industrial

commission

(1)	The costs of a proceeding before an industrial magistrate or the industrial commission are in the discretion of the magistrate or commission.
(2)	However, if the magistrate or commission allows costs -
(a) for costs in relation to counsel's or solicitor's fees -

(i)       the costs are to be under the Uniform Civil Procedure Rules 1999, schedule 3, scale E; or

(ii)         if, because of -

(A)	the work involved; or
(B)	the importance, difficulty or complexity of the

matter to which the proceedings relate; the industrial magistrate or the industrial commission considers the amount of costs provided for under subparagraph (i) are inadequate remuneration, the magistrate or commission may allow costs (in total or in relation to any item) in an amount up to 1.5 times the amount provided for under subparagraph (i) (in total or in relation to that item); and

(b)	for costs in relation to witnesses' fees and expenses - the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, part 4; and
(c)	for costs in relation to bailiff's fees - the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, schedule 2, part 2.

(3)

Subsection (4) applies if -

(a)	the Authority or an insurer is required to pay costs in a hearing in relation to a witness who is a doctor or otherwise is of a professional description; and
(b)	the amount of fees and expenses payable in relation to the witness by the party that called the witness is more than the amount of costs allowed by the industrial magistrate or the industrial commission.

(4)

The Authority or the insurer may, on the application of the party that called the witness, pay an additional amount on account of the costs that the Authority or the insurer accepts as reasonable, having regard to the subject matter of the hearing."

Applicant (Regulator)

[12]   An affidavit was filed in the proceedings from Ms Leisha Shield, an Appeals Officer with the Regulator, who provided evidence in relation to the conduct of the Appeal.

[13]   Ms Shield's evidence was relatively brief, essentially outlining the circumstances surrounding the discontinuance of the substantive matter by the Respondent's representatives on 6 March 2013 and the Regulator's communication to Parker Simmonds Solicitors where it confirmed it did not agree to the discontinuation of the matter on the basis that each party would bear its own costs (Exhibit 1).

[14]   Attached to Ms Shield's affidavit was a record of a phone conversation between the parties where the Appeals Officer declined to agree to a discontinuance on the basis the parties bearing their own costs (Exhibit 1 - LS 2).

[15] Mr O'Neil, Counsel for the Applicant in the cost proceedings, referred the Commission to s 558(3) of the Act which provides that costs of the proceeding are in the Commission's discretion, except to the extent provided under a regulation. Further, that the usual approach in this jurisdiction is that costs follow the event, (see Johnston v

1  2

Workcover ; Dalyrymple Bay Coal Terminal Pty Ltd v Workcover Queensland ; Hill v

3

Q-COMP ;

4

Q-COMP v Australian Language Schools Pty Ltd (no. 2) .

[16]   In this respect Mr O'Neil submitted that there is nothing about the present case that would justify not adopting the usual rule that costs follow the event and all that occurred in this matter was Ms Roach has made a somewhat belated assessment of her true prospect of success, subsequently abandoning the appeal a few weeks prior to the hearing, but well after the Regulator had incurred substantial preparation costs.

[17]   Given the large number of witnesses identified in the lead up to the hearing to give evidence and the number of hearing days set aside for the matter, Mr O'Neil submitted the witness conferencing undertaken on 7 and 8 February 2013 was not unnecessarily early and was an entirely appropriate course of action given the Regulator's obligations to adequately prepare for the matter and fulfil its statutory obligations.

[18]    The Applicant contends the Respondent was dilatory in her preparation for the appeal, failing to appropriately assess her prospects of success, thereby causing the Regulator to incur substantial costs in preparation for the hearing.

[19]    Mr O'Neil submitted the Respondent had an opportunity to withdraw the appeal prior to the s 552A conference and again, shortly after the conference, once it had an opportunity to hear the basis upon which the Regulator would be defending the appeal, but instead, notwithstanding the matter had been on foot for some ten months at the time of withdrawal, did nothing from November the previous year, through to March 2013 in order to assess its true prospects of success.

[20]   The Applicant also argued that in addition to a history of repeated non-compliance by the Respondent with respect to the directions orders throughout the course of the matter, the Respondent's representative also failed to undertake conferencing with its client, obtain instructions and locate all the necessary documentation to enable it to provide appropriate advice to its client until February 2013 - which was nine months after the appeal was lodged, three months after the s 552A conference and two months after the disclosure obligations contained in the Directions Order.

[21]   It was further submitted by the Applicant there is a public interest in the Commission exercising its discretion regarding costs in a number of ways, including:

(1) to at least partially compensate the Applicant who has acted entirely appropriately in incurring the costs in the performance of its statutory duty

5

to conduct a defence of the appeal (see Cuttler v Q-Comp	); and
(2)	to educate appellants that they should undertake appropriate investigations and assessments of their prospects of success either prior to filing the appeal or prior to the hearing of a s 552A conference to ensure, among other things, time is not wasted and other litigants are not denied the opportunity of having their matters heard on a timely basis.

6

[22] In support of its application, the Regulator pointed to McAlinden v Q-COMP where

Her Honour Vice President Linnane noted at paragraph 10:

"Q-COMP and Counsel for Q-COMP have a right to pursue unsuccessful
appellants for costs. In doing so they are performing a statutory function."

7

[23] Mr O'Neil also drew the Commission's attention to John Henry Edwards v Q-COMP

in which he contends Her Honour Vice President Linnane ordered Q-COMP to pay

costs where it conceded an appeal some six weeks out from a hearing.

Quantification of Applicant's Costs

[24]   It was the Applicant's submission that it had not sought anywhere near the full costs that it had incurred, nor was it seeking the full costs that it was arguably entitled to pursue under Scale E of the Magistrates Court costs scale.

[25]    In this respect, the Applicant sought an award of costs as follows:-

Item 6(d)	7.5 hours * $175.00 Counsel's fees on conference	$1312.50
Item 6(d)	Counsel's advice on evidence	$ 195.00
$1507.50

[26]   It was further submitted the Regulator, whilst ordinarily entitled to seek costs for instructions to defend, the preparation for the hearing and the costs of disclosure, was instead only seeking a moderate amount of costs actually thrown away by the late withdrawal of the appeal.

[27]    In the event the Applicant is successful in this application, it also seeks the Respondent pay its costs of and incidental to the costs application in an amount of $550.00.

Respondent's Submissions (Marilyn Roach)

[28]   An affidavit tendered in the proceedings from Mr Bruce Simmonds, a solicitor with Parker Simmonds Solicitors, provided evidence with respect to the history of the claim and the circumstances leading to the discontinuance of the appeal (Exhibit 2).

[29]    In particular, Mr Simmond's affidavit set out details of a conference which was held on 8 February 2013 with Counsel for the Respondent, Ms Roach and her lawyers.

[30]    Mr Simmond's evidence was that during the conference the Respondent provided a full box of additional documents and statements in support of her claim, after which his firm sought further advice with respect to witnesses and the prospects of success of the Respondent's appeal against the decision of the Regulator.

[31] Ms Willson, Counsel for the Respondent, referred the Commission to s 558(3) of the Act which provides that costs of the hearing are in the Commission's discretion, except to the extent provided under a regulation, further submitting as a general rule costs follow the event.

[32]   The Respondent submitted the closer in time to the allocated hearing dates a matter is discontinued or resolved, a more persuasive argument exists for the exercise of a discretion to order costs, particularly as more substantial costs closely connected to the hearing, such as witness expenses and Counsel fees, are incurred.

[33]    Conversely, the more distant the resolution of the claim is achieved before the hearing

date, the less likely it is that the discretion to order costs will be exercised: see Ardent

8

Leisure Limited v Q-COMP and Jasmine Rolfe at paragraphs [20] and [25].

[34]   The Respondent submitted another factor for the Commission to consider was that hearing dates had already been set down by Directions Order dated 25 September 2012.

[35] It was further submitted by Ms Willson these circumstances are entirely different to those relating to a request for a trial date under rule 467 of the Uniform Civil Procedure (Fees) Regulation 1999, where a party who is ready for trial may prepare and sign a request for a trial date where all necessary steps in the proceeding (including steps to obtain disclosure or inspection of documents, admissions, particulars and answers to interrogatories) are complete.

[36]    In this regard, the Respondent argued this matter was set down before either party had completed and obtained expert reports or had an opportunity to test the evidence. In particular, Ms Willson contends the date set in the directions order for the filing of expert reports was not until 25 March 2013 and in those circumstances the usual practice should be adopted and no order for costs made.

[37]   The Respondent submitted that in the event the Commission determined the usual practice should not be adopted, then it would also be necessary for it to consider whether it is appropriate to exercise the discretion to order costs for the Regulator, arguing the authorities relied on by the Regulator related to orders to costs made after full hearings, and not resolutions of claims prior to hearing.

[38]   The submission set out a number of factors it considered relevant where the awarding of costs was a discretionary exercise, including:

"(a) the appeal is a hearing de novo from a decision of the Q-COMPReview Unit, which is a decision made "on the papers" and based only on the evidence placed before the Review Unit. There is no (sic) for the parties to interview witnesses or otherwise properly test the reliability of the evidence;

(a)	the appeal is not governed by rules requiring pleadings and accordingly the true nature of an appeal to be prosecuted for an appellant does not become apparent until substantial steps have been taken in the proceedings;
(b)	the imposition of costs orders when timely concessions are made may discourage sensible resolution of claims and may unfairly influence and prejudice claimants in considering their rights to be heard at appeal;
(c)	the Commission can take judicial notice of the large number of matters that are resolved prior to hearing, and often close to the allocated hearing date/s when no order for costs is sought."

[39]   It was submitted by the Respondent, that in all the circumstances the principles of equity and good conscience support an order that there be no order for costs with respect to that part of the proceeding.

[40] In support of its submissions, the Respondent also relied on Kylie Michelle Reed v Q-

9

COMP and Coles Group Limited and Dean Clarence Madden and Q-COMP Review

10

Unit and BHP Coal Ltd .

Findings and Conclusions

[41]   While there is a general presumption in matters such as this that "costs follow the event" it is also clear the Commission holds an overarching discretion as to whether it will make an Order for costs in a proceeding.

[42]   It is this discretion the Applicant seeks to be exercised in its favour, submitting this is an appropriate case in the circumstances for the Commission to award costs in the amount of $1507.50 and in the event its costs application is successful, a further $550.00 in costs of and incidental to the present application.

[43]   In support of its application, Mr O'Neill has submitted an award of costs will partially compensate the Regulator who it submits has acted entirely appropriately in incurring costs in the performance of its statutory role; and further educate appellants that they should undertake appropriate investigations and assessments of their prospects of success prior to the filing of an appeal or the attendance of a s 552A conference.

[44]    The Respondent has submitted this is a matter where there is some distance between the resolution of the claim and the nominated hearing dates, and for these and other reasons including the setting down of hearing dates for the matter prior to the parties completing or obtaining necessary expert reports or testing the evidence, that no order for costs should be made.

11

[45] In Blackwood v Egan , President Martin accepted that an order for costs is a

"quintessential exercise of discretion and that the principles in House v The King (1936)

55 CLR will apply."

[46] Although that case is distinguishable on its facts from the present case, in the same

12

decision President Martin referred to the principles enunciated in Latoudis v Casey where the High Court considered the nature of an award of costs, and in particular where Mason CJ said (at 543):

"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."

[47]   President Martin further considered the comments of McHugh J in the same decision where McHugh J said (at 567):

"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."

13

[48] In Cuttler v Q-COMP Deputy President Bloomfield noted:

"However, the Commission also has a duty to act in the public interest and to take into account not only the interests of an appellant such as Mr Cuttler but also someone like Q-COMP which, in a sense, is guardian of the public purse. Money it expends in coming down to the Commission time and time again, is wasted money from the taxpayers view."

14

[49] Unlike the circumstances in Kylie Michelle Reed v Q-COMP and Coles Group

15

Limited and Dean Clarence Madden and Q-COMP Review Unit and BHP Coal Ltd to which the Respondent has referred, the conduct of the substantive matter from its lodgment on 4 May 2012 until the filing of a notice of discontinuance on or around 6 March 2014 could in no way be described as "unspectacular".

[50]   On 25 September 2012, Her Honour Vice President Linnane issued directions at a callover with respect to the conduct of the appeal. The Respondent's representatives did not appear in person at the callover and a Further Directions Order was forwarded to the Respondent's firm on 25 September 2012. In this respect the Respondent was aware of its obligations with respect to the exchange of documents, witness lists, discovery obligations as well as conference dates well ahead of the five day hearing in mid-April 2013.

[51]   The Applicant repeatedly raised matters of non-compliance with the Respondent in relation to the directions orders on 29 October 2012, 6 November 2012 and 1 March 2013. The Applicant also raised concerns with respect to the Respondent's conduct of the matter with the Commission on 9 November 2012, 26 February 2013 and 5 March 2013.

[52]    It was also necessary for an associate to the Vice President to contact the Respondent's representatives in relation to non-compliance with the Direction Orders on no less than three occasions on 12 November 2012, 1 March 2013 and 5 March 2013. On at least one occasion the associate was asked to advise the Respondent of the potential cost implications in circumstances where it continued with its non-compliance.

[53]   On 20 November 2012, the Respondent's representative contacted the Commission to advise it was unable to procure a barrister for a s 552A conference which was set down for the following day.

[54]    On the basis the Respondent's representatives had been notified of the conference some weeks beforehand on 25 September 2012, the conference went ahead. A representative from Parker Simmonds Solicitors participated in the conference by phone, confirming among other things the medical evidence it proposed to rely upon.

[55]   At the same conference, I accept the Regulator clearly communicated the basis upon which the Applicant intended to defend the appeal.

[56]    In my view it was entirely reasonable for the Regulator to commence conferencing with various witnesses in early February 2013, particularly when one considers:

(1)	its own obligations under the Further Amended Directions Order of 12 December 2012;
(2)	the large number of potential witnesses identified for giving evidence; and
(3)	the Respondent's actions at this point in time in no way suggested it did not intend to pursue the Appeal.

[57]   The evidence of Mr Simmonds is that a conference was held with Counsel for the respondent, Ms Roach and her lawyers on 8 February 2013 after which it sought updated advice from Counsel with respect to witnesses and its prospects of success in circumstances where Ms Roach provided a full box of additional documents in the same meeting, some two months after document lists were ordered to be disclosed by the parties.

[58]    On 26 February 2013, the Applicant contacted the Vice President's chambers to advise the Respondent had failed to comply with Order 2 (names of witnesses) and Order 3 (further documents) of an Amended Further Directions Order dated 12 December 2012.

[59]   On 5 March 2013, the Applicant sought to have the matter brought on for a mention before the Vice President to address the Respondent's ongoing non-compliance with the Amended Further Directions Order.

[60]    On 5 March 2013, the Commission contacted the Respondent's representatives advising it would entertain an application by the Regulator to have the matter struck out if the Respondent was unable to comply with the Directions Order.

[61]    It was only on this day, after being contacted by an associate from the Commission and warned in relation to its ongoing compliance that the Respondent provided any indication to the Regulator it was considering discontinuing the matter.

[62]   In this regard, I am satisfied the Respondent exhibited an ongoing pattern of non- compliance with the Directions Orders issued by the Commission.

[63]   I also accept that had the Respondent been less dilatory in its preparation and its assessment of its prospects of success, it is more than likely the matter would have been resolved far earlier than 6 March 2013 and well before the Regulator incurred costs in its preparation for the upcoming hearing.

[64]    Whilst Counsel for the Respondent has submitted the hearing dates for the matter were set down well before it had, among other things, an opportunity to "test the evidence", it is clear the appeal was on foot for some ten months before being withdrawn.

[65]    In my view there was ample opportunity for the Respondent to consider its prospects of success in an environment where the Directions Orders issued by the Vice President clearly stepped the parties through their obligations in so far as they related to the exchange of documents, witness details, s 552A conferences and the like.

[66]   Having considered all the material before me and the submissions of the parties, I see no reason why the following costs, in circumstances where costs ordinarily follow the event, should not be awarded to the Applicant in partial compensation for costs incurred in its preparation for the substantive appeal:

Item 6(d)	7.5 hours * $175.00 Counsel's fees on conference	$1312.50
Item 6(d)	Counsel's advice on evidence	$ 195.00
$1507.50

[67]    I also order the Respondent pay to the Applicant its costs of and incidental to the costs application before me in the amount of $550.00.

[68]   I further order a total amount of $2057.50 to be paid by the Respondent to the Regulator within twenty-eight days of the release of this decision.

[69] Order Accordingly.
1
Johnston v Workcover (2000) 165 QGIG 789
2
Dalyrymple Bay Coal Terminal Pty Ltd v Workcover Queensland (2000) 163 QGIG 82
3
Hill v Q-COMP (2009) 190 QGIG 7
4

Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) (No. 2) - Decision <

5
Cuttler v Q-Comp (2009) 190 QGIG 9
6

Wayne McAlinden AND Q-COMP (WC/2008/92) - Decision <

7
John Henry Edwards AND Q-COMP (WC/2012/52) - Decision <
8 Ardent Leisure Limited AND Q-COMP AND Jasmine Rolfe (WC/2010/112) - Decision
<
9
Kylie Michelle Reed v Q-COMP 192 QGIG 99
10

Coles Group Limited and Dean Clarence Madden and Q-COMP Review Unit and BHP Coal Ltd (20 June

2008) Magistrates Court decision 00202595/07(3)
11

Blackwood v Egan (2014) ICQ 020

12

Latoudis v Casey (1990) 170 CLR 534; (1990) HCA 59

13

Cuttler v Q-Comp (2009) 190 QGIG 9

14

Kylie Michelle Reed v Q-COMP 192 QGIG 99

15

Coles Group Limited and Dean Clarence Madden and Q-COMP Review Unit and BHP Coal Ltd (20 June

2008) Magistrates Court decision 00202595/07(3)