QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v Workers' Compensation Regulator (No 2) [2024] QIRC 257 |
PARTIES: | Smith, Bradley Scott v Workers' Compensation Regulator |
CASE NO: | WC/2022/191 |
PROCEEDING: | Costs |
DELIVERED ON: | 5 November 2024 |
HEARING DATES: MEMBER: | Decided without oral hearing O'Connor VP |
ORDER: | 1. The Respondent pay the Appellant costs of the hearing fixed at $6046.60 within 21 days of the date of this decision. |
| CATCHWORDS: | WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - APPEAL AGAINST REVIEW DECISION - where appellant was successful in the hearing of his appeal to the Queensland Industrial Relations Commission in that he suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - where appellant sought costs - where parties ordered to file submissions on the costs of the hearing pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 - whether costs for conferencing should be payable - whether payment of an additional amount in excess of amount allowed under the scale in relation to witnesses called by the appellant |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 558 Uniform Civil Procedure Rules 1999, Schedule 2 Baigorri v Workers' Compensation Regulator (No 2) [2024] ICQ 7 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 |
Reasons for Decision
This is the determination of costs consequent upon the Appellant's successful appeal to the Queensland Industrial Relations Commission ('the Commission').[1]
The Appellant, Mr Bradley Smith, made a claim for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'). On 19 October 2022 the Workers' Compensation Regulator ('the Respondent') upheld the original decision of XtraCare to reject the claim under s 32 of the WCR Act. Subsequently the Appellant was successful in his appeal to the Commission.
In my decision of 10 September 2024[2] an order was made that costs be determined on the exchange of written submissions in the absence of any application for leave to make oral submissions on costs.
Pursuant to the order, written submissions were filed on 4 October 2024. No application for leave to make oral submissions on costs was received.
The Appellant claims costs in the sum of $9,329.50 pursuant to Schedule 2 - Scale of costs - Magistrates Courts, Part 2, scale C of the Uniform Civil Procedure Rules 1999 (Qld) as follows:
1. Conference[3] $1,672.50 2. Trial hearing - first day[4] $1,770.00 3. Trial hearing - second day[5] $1,182.00 4. Attendance of solicitor with counsel each day[6] $1,424.80 5. Appellant instructions for disclosure[7] $ 384.15 6. Appellant making disclosure[8] $ 693.85 7. Witness…
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- AGLC
- Smith v Workers' Compensation Regulator (No 2) [2024] QIRC 257
- Case
- [2024] QIRC 257
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the costs associated with witness conferencing were recoverable as part of the costs of the hearing. The court examined the relevant statutory provisions and case law to determine the extent of the Commission's discretion in awarding costs. The court noted that the Commission's discretion to award costs was not unfettered but was limited by the provisions of the WCR Act and the WCR Regulation. The court also considered whether the costs for conferencing were properly categorised as 'costs of the hearing' or 'costs of the appeal'. The appellant argued that witness conferencing should be considered a cost of the hearing, citing a previous case where costs of disclosure were allowed. However, the court found that the Commission's directions did not include any requirement for witness conferencing, and therefore, such costs did not fall within the category of 'costs of the hearing'.
The court concluded that the costs for witness conferencing were not allowable under the statutory framework. The court ordered that the respondent, the Workers' Compensation Regulator, should pay the appellant's costs of the hearing, which were fixed at $6046.60, to be paid within 21 days of the decision. The court's reasoning was based on the clear distinction between costs of the hearing and costs of the appeal, and the absence of any statutory or regulatory direction mandating witness conferencing as part of the hearing process.
Orders
Orders of the court
1. The Respondent pay the Appellant costs of the hearing fixed at $6046.60 within 21 days of the date of this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In referring to conferencing, the Respondent submits that parties were directed to file a list of witnesses and serve outlines of evidence, however there was no direction in relation to witness conferencing. Conferencing was discretionary and undertaken by each party during the course of the action with a view to preparing their matter.[15][15] Respondent's submissions on costs filed 4 October 2024, [9].Consideration Costs before the Commission are calculated in accordance with s 558(3) of the WCR Act, Schedule 2, Scale of Costs - Magistrates Court, Part 2, Scale 2 of the Uniform Civil Procedure Rules 1999 (Qld) and r 132 of the WCR Regulation. Section 558(3) of the WCR Act provides:558 Powers of appeal body…(3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation. Section 558 of the WCR Act and r 132 of the WCR Regulation provide the Commission the statutory power to award costs. In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[16] Davis J was called upon to consider the proper construction of s 558(3) of the WCR Act. His Honour wrote:[16] [2021] ICQ 13. The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission. However, the discretion under s 558(3) is not unfettered. Section 558(3) of the WCR Act ought to be read to limit the exercise of the discretion to the awarding of 'costs of the hearing'; and secondly, to the extent provided for in r 132 of the WCR Regulation. The discretion to make an order for costs must be exercised judicially by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[18][18] Northern Territory v Sangare (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ). The Respondent accepts that the Commission should exercise its discretion to order that the Respondent pay the Appellant's costs of the hearing but says that witness conferencing is a cost of the appeal and not costs of the hearing. The question which arises before me therefore is whether the costs under item 8(d) of the Appellant's schedule of costs being conferences associated with witness preparation is an allowable cost. The Appellant relies on the decision of Davis J in Baigorri v Workers' Compensation Regulator (No 2)[19] to support its contention that the conferencing of witnesses is a cost of the hearing. [19] [2024] ICQ 7, (Baigorri). In Baigorri, a claim was sought for the costs of disclosure in the proceedings made pursuant to an order of the Commission. Davis J allowed a claim for costs of disclosure based upon the directions given by the Commission for the conduct of the proceedings.[20] [20] Ibid, [8]. In my view, the Appellant's argument should be rejected. The directions issued by the Commission on 18 November 2022 required only that the parties serve on each other the names of all witnesses to be called at the hearing. The directions did not extend to witness conferencing, in this case, performed by Counsel for the Appellant. The costs under item 8(d) are, in my view, properly 'costs of the appeal' and not 'costs of the hearing'.