van Croonenborg v Blackwood

[2014] ICQ 19

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

van Croonenborg  v Blackwood [2014] ICQ 019

PARTIES:

JEFFREY VAN CROONENBORG
(appellant)
v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(respondent)

FILE NO/S:

C/2014/4

PROCEEDING:

Appeal

DELIVERED EX TEMPORE ON:

30 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2014

JUDGE:

Martin J, President

ORDERS:

Appeal dismissed

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – COSTS – GENERALLY – where the appellant had appealed the decision of the Workers’ Compensation Regulator to refuse his application for compensation – where the appellant sought an adjournment of the hearing of that appeal shortly before the hearing was to begin, requiring further expert evidence – where the Commission ordered the appellant to pay the respondent’s costs thrown away by reason of the adjournment – whether the Commission’s discretion to order a party to pay costs miscarried

Workers’ Compensation and Rehabilitation Act 2003, ss 554, 558

COUNSEL:

M J Henry for the appellant
P B O’Neill for the respondent

SOLICITORS:

Hall Payne Lawyers for the appellant

THE PRESIDENT:   On 9 January this year, the Vice President made an order in which she adjourned the hearing of the substantive matter in this case.  She also ordered that the appellant pay the respondent $7381.20 as assessed costs, and further ordered that the substantive matter would not be listed for further hearing until that amount was paid to the respondent.  The matter had been set down for hearing for three days in January 2014 by an order made on or about 12 July 2013.  On that date, directions were also given with respect to the holding of a s 552A conference, and the filing and service of various documents.  The request for an adjournment was contained in correspondence from the solicitors for the appellant dated 19 November 2013.  The request was denied.  The registry was then closed over the Christmas and New Year period, and the request for an adjournment was not renewed until about 6 January 2014.  When the matter came on for hearing on 7 January, Mr Henry, who appeared for the appellant today, told the Vice President that there were a number of serious problems with the matter which would prevent it from being properly determined by the Commission.

Mr Henry told the Vice President that he had instructions to agree to costs of the adjournment, being costs thrown away, being ordered in favour of the respondent.  In his submissions in support of the adjournment, he told the Vice President that his client had been represented by counsel who had agreed to appear on a speculative basis.  That barrister had attempted to renegotiate the terms of the retainer and had then withdrawn from the matter.  Later in the hearing, Mr Henry confirmed that he had instructions to pay costs and, if it was the view of the Vice President, that the costs order should encompass three full days of hearing. He also said that the applicant accepted that the disclosure of reports which had been made was within the scope of the directions. 

The attitude for the appellant changed when the application for the adjournment spilled into a second day, when most of the discussion concerned the need for further expert evidence.  The appellant formulated its case then, and continues it now, to this effect: that the respondent had, through late provision of expert evidence, put the appellant in a position where it needed further expert evidence; that the issues in the case became much more complicated; and that the appellant had lost his counsel for the hearing.

The notice of appeal states five grounds.  They are:

(a)        that the Vice President erred by failing to characterise the respondent’s conduct in respect of disclosure of its expert evidence as not complying with the directions order made on 12 July 2013;

(b)        that the Vice President had failed to take into account a relevant consideration, namely the prejudice visited upon the appellant, from the manner in which the respondent conducted the disclosure of its expert evidence;

(c)        that the Vice President took into account an irrelevant consideration, namely the way in which other appellants conducted their cases;

(d)        that the Vice President took into account an irrelevant consideration, namely her own personal experience as a diabetic; and

(e)        that the Vice President erred in law by not considering the decision in Birla Mount Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363.

I will deal with the last three grounds first.  In the discussions between the bar table and the bench during the hearing of the application for an adjournment, the Vice President did refer to her own personal experiences as a diabetic.  She made no references to it in her reasons.  Similarly, there was reference made during submissions to the way in which other appellants conducted their cases before the Commission.  Again, there was no reference to this in the reasons.  A member of the Commission is entitled to test the arguments being placed before the Commission, and to explore issues which may or may not be relevant, and may or may not constitute one of the bases for a final decision.  The mere fact that a member of the Commission raises something within his or her own personal knowledge does not necessarily mean that that is a matter which is then taken into account in the formulation of the reasons for the decision.  It was put that I should infer that that was the case because the decision was so unreasonable.  I do not accept that submission.  The Vice President’s reasons covered some pages, and disclosed the matters which she did take into account.  They did not include those matters I have referred to. 

The appellant also relied upon the decision of the Court of Appeal to which I have referred.  That decision was one which was clearly confined to its own facts, and is simply another example of the manner in which costs may be dealt with, depending upon the particular circumstances of a trial.  I do not read the decision of the court as establishing any new principle.  While decisions of the Court of Appeal will always be given great weight in any matter relevant to an appeal in this Court, they are not binding except in limited circumstances. 

The making of a costs order is an order in the discretion of the Commission.  The principles to be applied in an appeal from such a decision are well-known, and are found in House v the King (1936) 55 CLR 499. The major complaint made by the appellant was with respect to the disclosure by the respondent of its expert reports. The appellant claims that that disclosure was not done in accordance with the regime created by the directions. I note that it was, though, in accordance with s 554 of the Workers Compensation and Rehabilitation Act.  During the hearing before the Vice President, counsel for the appellant was asked what it was in the reports provided to the respondent that came as a surprise.  This question was pressed a number of times and no response was given.  It also became apparent during submissions that the appellant had realised that he required further evidence.  Mention was made of a desire to obtain a neurologist’s opinion, but that could not be in response to the regulator’s reports.  It must have been new, and it must have been additional. 

The respondent relied upon the uncontested fact that its expert’s reports did not exist until just before 12 December 2013, and it was at that point that the obligation to disclose arose.  That was accepted by the Vice President, and that construction of the directions was open to her.  I am satisfied that the Vice President took into account the relevant considerations in this case.  They include the fact that at the s 552A conference, the respondent made obvious to the appellant the matters upon which it would be intending to rely at the final hearing.  They included all the matters of which the appellant now complains.  Although they were not provided in detail, they did disclose the areas to be covered.  As such, it was put on notice at least that there was to be evidence in a particular field of expertise.  There was nothing to suggest that the appellant had been misled in any way by the conduct of the respondent. 

The appellant does not appeal against the quantum of the order, or against the order that the amount be paid before the substantive matter can be set down for hearing. 

The appeal is dismissed.