WorkCover Queensland v Yang [No 2] - [2023] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Yang [No 2] [2023] QCA 38

PARTIES:

WORKCOVER QUEENSLAND
ABN 40 577 162 756
(appellant)
v
CHANG MO YANG
(respondent)

FILE NO/S:

Appeal No 13747 of 2021
SC No 7710 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 274 (Applegarth J)

DELIVERED ON:

14 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo JA and Crow J

ORDERS:

1. The order for costs made on 11 October 2022 be set aside.

2. The appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – COSTS – POWER OF COURT – INDEMNITY COSTS – where the appeal was unsuccessful and the appellant ordered to pay the respondent’s costs on a standard basis – where the order did not provide a basis for the assessment of costs – where the appellant relied on s 168 of the Workers Compensation and Rehabilitation Act 2003 (Qld) to overturn a decision to accept compensation by an external regulator – where there was no authority providing the proper interpretation of s 168 – whether s 168 provided WorkCover with retrospective power to overturn a decision made on external review – whether the appellant should pay the respondent’s costs on an indemnity basis

Uniform Civil Procedure Rules1999 (Qld), r 702(1)
Workers’ Compensation and Rehabilitation Act2003 (Qld), s 168

AAI Limited v Caffrey[2020] QCA 116, cited
Hall v WorkCover Queensland[2014] QCA 202, cited
Suncorp Metway Insurance Ltd v Brown [2005] 1 Qd R 204; [2004] QCA 325, cited
WorkCover Queensland v Yang[2022] QCA 196, related

COUNSEL:

S A McLeod KC, with M A Eade, for the appellant
M Grant-Taylor KC, with P M Nolan, for the respondent

SOLICITORS:

Hall & Wilcox for the appellant
Littles Lawyers for the respondent

McMURDO JA: Like Crow J, I have concluded that the respondent should have its costs assessed on the indemnity basis. The determination of the issue in this appeal resolved a question of construction for all subsequent cases of this kind and the case therefore served a public interest beyond the interests of the parties. The respondent, as an evidently impecunious litigant, should not be out of pocket for his costs of the appeal.
The order for costs made on 11 October 2022 should be varied to provide that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.
CROW J: The appellant was unsuccessful in its appeal against the respondent. On 11 October 2022 orders were made that the appeal was dismissed and the appellant was ordered to pay the respondent’s costs of the appeal[1]. As the order did not provide a basis for the assessment of costs, the costs were to be assessed on the standard basis[2].
[1]WorkCover Queensland v Yang [2022]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WorkCover Queensland v Yang [No 2]

Details

AGLC: WorkCover Queensland v Yang [No 2] [2023] QCA 38
Case: [2023] QCA 38
Decision Date: 14 March 2023

CaseChat Overview and Summary

The case of WorkCover Queensland v Yang [No 2] involved an appeal against a decision to accept compensation by an external regulator. The appellant, WorkCover Queensland, sought to overturn the decision based on section 168 of the Workers Compensation and Rehabilitation Act 2003 (Qld). The respondent, Yang, sought indemnity costs in response to the unsuccessful appeal. The Queensland Court of Appeal was tasked with determining the proper basis for assessing the costs in light of the appellant's reliance on section 168.

The primary legal issue before the Court was the interpretation of section 168 of the Workers Compensation and Rehabilitation Act 2003 (Qld). The appellant argued that this section provided retrospective power to overturn a decision made on external review, whereas the respondent contended that the standard basis for assessing costs was appropriate given the unsuccessful appeal. The Court had to consider whether there was any authority providing the proper interpretation of section 168 and whether it indeed provided WorkCover with the power to overturn the external regulator's decision retrospectively.

The Court found that there was no authority providing the proper interpretation of section 168, which meant that the appellant's reliance on this section to overturn the external regulator's decision was without merit. The Court concluded that the appellant's appeal was thus unsuccessful and that the respondent was entitled to indemnity costs for the appeal. The Court ordered that the costs previously assessed on a standard basis be set aside and that the appellant pay the respondent's costs of the appeal on an indemnity basis.

The final orders of the Court were to set aside the order for costs made on 11 October 2022 and to direct that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis. This decision underscored the importance of the proper interpretation of statutory provisions and the consequences for parties who proceed on the basis of incorrect legal advice.

Orders

Orders of the court

1. The order for costs made on 11 October 2022 be set aside.

2. The appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	WorkCover Queensland v Yang [No 2] [2023] QCA 38
PARTIES:	WORKCOVER QUEENSLAND ABN 40 577 162 756 (appellant) v CHANG MO YANG (respondent)
FILE NO/S:	Appeal No 13747 of 2021 SC No 7710 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Supreme Court at Brisbane – [2021] QSC 274 (Applegarth J)
DELIVERED ON:	14 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo JA and Crow J
ORDERS:	1. The order for costs made on 11 October 2022 be set aside. 2. The appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – COSTS – POWER OF COURT – INDEMNITY COSTS – where the appeal was unsuccessful and the appellant ordered to pay the respondent’s costs on a standard basis – where the order did not provide a basis for the assessment of costs – where the appellant relied on s 168 of the Workers Compensation and Rehabilitation Act 2003 (Qld) to overturn a decision to accept compensation by an external regulator – where there was no authority providing the proper interpretation of s 168 – whether s 168 provided WorkCover with retrospective power to overturn a decision made on external review – whether the appellant should pay the respondent’s costs on an indemnity basis Uniform Civil Procedure Rules1999 (Qld), r 702(1) Workers’ Compensation and Rehabilitation Act2003 (Qld), s 168 AAI Limited v Caffrey[2020] QCA 116, cited Hall v WorkCover Queensland[2014] QCA 202, cited Suncorp Metway Insurance Ltd v Brown [2005] 1 Qd R 204; [2004] QCA 325, cited WorkCover Queensland v Yang[2022] QCA 196, related
COUNSEL:	S A McLeod KC, with M A Eade, for the appellant M Grant-Taylor KC, with P M Nolan, for the respondent
SOLICITORS:	Hall & Wilcox for the appellant Littles Lawyers for the respondent