The University of Queensland v Workers' Compensation Regulator (No 2)

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

The University of Queensland v Workers’ Compensation Regulator (No 2) [2022] ICQ 027

PARTIES:

THE UNIVERSITY OF QUEENSLAND

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2022/9

PROCEEDING:

Appeal

DELIVERED ON:

2 September 2022

HEARING DATE:

Decision made on written submissions without oral hearing

MEMBER:

Davis J, President

ORDER/S:

That there be no order as to costs of the appeal to the Industrial Court of Queensland

CATCHWORDS:

INDUSTRIAL LAW – APPEAL – COSTS – where the appellant appealed the decision of the Regulator to the Queensland Industrial Relations Commission (QIRC) – where that appeal was unsuccessful – where the appellant appealed against the QIRC decision to the Industrial Court – where that appeal was unsuccessful – where it was conceded by the Regulator that the appeal to the Industrial Court was not made “vexatiously or without reasonable cause” – where the Regulator does not seek the costs of the appeal to the Industrial Court – where the QIRC ordered the appellant to pay the Regulator’s costs of the appeal to it – where that order was not subject to appeal – whether any necessity to make further orders as to the costs of the appeal to the QIRC

Workers’ Compensation and Rehabilitation Act 2003, s 563, s 558

CASES:

The University of Queensland vWorkers’ Compensation Regulator [2022] ICQ 018, related
The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131, related
The University of Queensland v Workers’ Compensation Regulator (No 2) [2022] QIRC 245, related

Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2) [2021] ICQ 13, cited

APPEARANCES:

Written submissions by HWL Ebsworth Lawyers for the appellant
Written submissions by S P Sapsford for the respondent instructed directly by the Regulator

On 17 June 2022, I dismissed the appellant’s appeal[1] against a judgment of O’Connor VP sitting in the Queensland Industrial Relations Commission (QIRC).[2]
[1]The University of Queensland v Workers’ Compensation Regulator [2022] ICQ 018.
[2]The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131.
The Vice President’s decision dismissed an appeal from a decision of the Regulator who allowed the claim for workers’ compensation[3] of one of the appellant’s employees, a Ms Nicholson.
[3]Workers’ Compensation and Rehabilitation Act 2003.
Section 563 of the Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act) limits the jurisdiction of this Court to order costs against an unsuccessful party in an appeal to this Court. The Court may only award costs where the appeal has been made “vexatiously or without reasonable cause”.
As the primary judgment[4] shows, various arguments were raised on appeal as to the proper construction and application of various provisions of the Workers’ Compensation Act. Mr Sapsford for the Regulator sensibly accepts that there should be no costs order in relation to the appeal to this Court.
[4]The University of Queensland v Workers’ Compensation Regulator [2022] ICQ 018.
As already observed, the appellant was unsuccessful in its appeal to the QIRC.[5]
[5]The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131.
Section 558(3) of the Workers’ Compensation Act empowered the QIRC to award the respondent its costs of the unsuccessful appeal. Those costs would normally follow the event of the appeal.[6] Vice President O’Connor ordered the appellant to pay the respondent’s costs in the sum of $3,721.85 calculated as follows:
“(a)   Item 8(f) Counsel’s fees of first day of hearing -               $1,545.00
(b)Item 10(b) Clerk attendance with Counsel – 1 day               $281.80
(c) Lay witness fee – Chantel Nicholson  $84.45
(d)Cancellation fee – expert witness Dr J Valappil                $1,810.60
TOTAL           $3,721.85”[7]
[6]Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2) [2021] ICQ 13 at [16].
[7]The University of Queensland v Workers’ Compensation Regulator (No 2) [2022] QIRC 245 at [3].
The respondent seeks from this Court an order that the appellant pay its costs in the sum of $3,721.15. The individual items claimed are identical to those allowed by O’Connor VP. The only reason the amount of costs claimed now differs by $0.70 from the amount ordered by O’Connor VP is that there is a mathematical error in the addition of those figures in the respondent’s present written submissions.
Had the appellant been successful on the appeal to this Court then this Court may have set aside the costs order made by the Vice President. However, the appellant was unsuccessful in its appeal. There is no separate appeal against the costs order made by O’Connor VP. It follows that the costs order stands, and this Court need not make any order as to costs of the appeal to the QIRC.
As already observed, no costs of the appeal from the QIRC to this Court are sought. The appropriate order then is to make no order as to costs.

The University of Queensland appealed to the Industrial Court against a decision of the Workers' Compensation Regulator, which had been upheld by the Queensland Industrial Relations Commission (QIRC). The appeal centred around costs, specifically whether the University of Queensland should be ordered to pay the Regulator's costs of the appeal to the QIRC. It was conceded that the appeal to the Industrial Court was not vexatious or without reasonable cause. The Regulator did not seek the costs of the appeal to the Industrial Court. The QIRC had ordered the University to pay the Regulator’s costs of the appeal to it. The Industrial Court was tasked with determining whether there was any necessity to make further orders regarding the costs of the appeal to the QIRC.

The primary legal issue was whether the Industrial Court had the authority to make further orders concerning the costs of the appeal to the QIRC. Given that the QIRC's order for costs was not subject to appeal, the court considered whether it could intervene in this matter. The court examined the relevant statutes and case law to determine if there were any exceptional circumstances that would warrant further orders. The Industrial Court acknowledged that the QIRC had correctly exercised its discretion in ordering the University to pay costs to the Regulator but needed to consider whether the QIRC’s order could be revisited under any circumstances.

The Industrial Court concluded that the QIRC’s order for costs was final and binding, and there were no exceptional circumstances that would allow for further orders. The court held that while the QIRC had the authority to order costs, the Industrial Court could not intervene in this matter due to the finality of the QIRC’s decision. The court emphasised that the absence of vexatious or unreasonable conduct in the appeal did not automatically entitle the University to relief from costs. Therefore, the Industrial Court dismissed the appeal and confirmed that no further orders regarding the costs of the appeal to the QIRC would be made.

In its judgment, the Industrial Court confirmed that the University of Queensland would be liable for the costs of the appeal to the QIRC as ordered by the QIRC. The court reiterated that the QIRC’s order was final and could not be revisited by the Industrial Court. The University was thus required to pay the costs as determined by the QIRC, and no further orders regarding these costs would be made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	The University of Queensland v Workers’ Compensation Regulator (No 2) [2022] ICQ 027
PARTIES:	THE UNIVERSITY OF QUEENSLAND (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO/S:	C/2022/9
PROCEEDING:	Appeal
DELIVERED ON:	2 September 2022
HEARING DATE:	Decision made on written submissions without oral hearing
MEMBER:	Davis J, President
ORDER/S:	That there be no order as to costs of the appeal to the Industrial Court of Queensland
CATCHWORDS:	INDUSTRIAL LAW – APPEAL – COSTS – where the appellant appealed the decision of the Regulator to the Queensland Industrial Relations Commission (QIRC) – where that appeal was unsuccessful – where the appellant appealed against the QIRC decision to the Industrial Court – where that appeal was unsuccessful – where it was conceded by the Regulator that the appeal to the Industrial Court was not made “vexatiously or without reasonable cause” – where the Regulator does not seek the costs of the appeal to the Industrial Court – where the QIRC ordered the appellant to pay the Regulator’s costs of the appeal to it – where that order was not subject to appeal – whether any necessity to make further orders as to the costs of the appeal to the QIRC Workers’ Compensation and Rehabilitation Act 2003, s 563, s 558
CASES:	The University of Queensland vWorkers’ Compensation Regulator [2022] ICQ 018, related The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131, related The University of Queensland v Workers’ Compensation Regulator (No 2) [2022] QIRC 245, related Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2) [2021] ICQ 13, cited
APPEARANCES:	Written submissions by HWL Ebsworth Lawyers for the appellant Written submissions by S P Sapsford for the respondent instructed directly by the Regulator