Workers' Compensation Regulator v Adcock (No 2) - [2022] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(appellant)

v
MALCOLM ADCOCK

(respondent)

FILE NO/S:

C/2021/14

PROCEEDING:

Appeal

DELIVERED ON:

21 June 2022

HEARING DATE:

Application for costs considered on written submissions without oral hearing

MEMBER:

Davis J, President

ORDER/S:

There be no order as to costs of the appeal

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - COSTS - where the Workers’ Compensation Regulator appealed a decision of the Queensland Industrial Relations Commission (QIRC) varying a decision of the Regulator made under the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act) - where the QIRC found that the respondent was not fit for work until 30 November 2017 - where the Regulator challenged that finding on appeal – where, during the hearing of the appeal, the respondent sought to defend the result in the QIRC on different grounds to that supporting the judgment (the point of contention) - where the hearing of the appeal was adjourned - where the respondent relied on the point of contention - where the appellant on appeal demonstrated error - where the respondent resisted the appeal on the point of contention - where the respondent applied for costs of the appeal - whether the appeal was made vexatiously or without reasonable cause

Industrial Relations (Tribunals) Rules 2011
Uniform Civil Procedure Rules 1999, r 681
Workers’ Compensation and Rehabilitation Act 2003, s 144A, s 563

CASES:

Adcock v Workers’ Compensation Regulator [2021] QIRC 227, related
Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019, cited
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, cited
Hanrahan v Wesfarmers Dalgety Ltd (1995) 68 IR 105, cited
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Workers’ Compensation Regulator v Adcock [2022] ICQ 016, related

APPEARANCES:

C Callaghan instructed by the Workers’ Compensation Regulator made written submissions on behalf of the appellant

A Wright of Boylan Lawyers made written submissions on behalf of the respondent

The Workers’ Compensation Regulator appealed against the decision of the Queensland Industrial Relations Commission (QIRC)[1] which varied the Regulator’s decision under s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act).
[1]Adcock v Workers’ Compensation Regulator [2021] QIRC 227.
On 24 May 2022, the Regulator’s appeal was dismissed and directions were given on the question of costs as follows:
1.The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.
2.The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.
3.The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.
4.The parties have leave to file and serve by 1 July…

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.

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Details

Case: [2022] ICQ 20
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the matter of Workers' Compensation Regulator v Adcock (No 2), the Workers' Compensation Regulator appealed a decision of the Queensland Industrial Relations Commission (QIRC) that varied a decision of the Regulator made under the Workers' Compensation and Rehabilitation Act 2003. The QIRC had found that Mr Adcock was not fit for work until 30 November 2017, a finding which the Regulator contested. The appeal raised issues of whether the Regulator brought the appeal without reasonable cause after losing the appeal and whether the respondent was entitled to costs for the appeal.

The primary legal issue before the court was whether the appeal was made vexatiously or without reasonable cause, as the Regulator had demonstrated error in the appeal but ultimately lost. The court considered the circumstances under which the appeal was brought, including the point of contention raised during the hearing which necessitated an adjournment. The court also had to determine whether the respondent was entitled to costs of the appeal under the provisions of the relevant legislation.

In dismissing the appeal, the court found that while the Regulator had established error, the respondent successfully challenged the finding against him and defended the appeal. The court held that the Regulator's appeal was not made vexatiously or without reasonable cause, given the significance of the point of contention raised during the hearing. The court further found that the respondent was not entitled to costs of the appeal as the appeal was not vexatious or without reasonable cause.

No orders for costs were made in favour of the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There is no basis here to suggest that the Regulator brought the appeal vexatiously.[5] The issue here is whether, having lost the appeal, the Regulator could be found to have brought it without reasonable cause.[5]Hanrahan v Wesfarmers Dalgety Limited (1995) 68 IR 105 at 110.Background facts The respondent was employed as a camp cook and suffered a significant injury to his left ankle while at work on 25 August 2015. The Regulator determined that Mr Adcock was not entitled to workers’ compensation after 26 August 2016 because, from that point, he could return to modified duties. The QIRC, which may have misunderstood some of the medical evidence, held that the respondent was incapacitated until 30 November 2017.[6] The QIRC made this finding[7] (the finding against the respondent):“[93] Dr Wilson’s opinion that the incapacity had ceased by 30 November 2017 is broadly consistent with the opinion of Dr Ng, who stated that as of 10 November 2017, the incapacity for work had ceased. Dr Grant also considered that by 12 October 2017, the Appellant was fit for modified duties with the only modification recommended being increased rest breaks if he returned to his previous role. Fitness for ‘modified duties’ in these circumstances does not mean that the Appellant has an ongoing incapacity. Allowing for modifications in the form of occasional rests, the use of orthotics and lifting restrictions to prevent further injury would not normally render a worker incapacitated as these modifications can occur within a range of usual job requirements. Similar restrictions recommended by Dr Wilson were largely concerned with preventing the likelihood of a recurrent injury.” (emphasis added)[6]Workers’ Compensation Regulator v Adcock [2022] ICQ 016 at [53], [56].[7]Adcock v Workers’ Compensation Regulator [2021] QIRC 227 at [93]. During the hearing of the appeal, it became evident that the respondent’s best case was that the finding against the respondent was wrong and that the respondent was partially incapacitated such that he was unable to work in the labour market in which he was working or might reasonably be expected to work given his qualifications and experience.[8] That would be sufficient to establish his claim.[8]Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177-178. The hearing of the appeal was adjourned so that the respondent could properly frame his defence to the appeal by challenging the finding against the respondent. Written submissions were exchanged and further oral submissions were heard. In dismissing the appeal, it was found:1.the Regulator had established error;[9] but2.the respondent successfully challenged the finding against the respondent; and3.the respondent successfully defended the appeal.[9]Workers’ Compensation Regulator v Adcock [2022] ICQ 016 at [56]-[57]. The Regulator submits that where it made out its ground of appeal, only to be thwarted by a point made during the hearing and which was so significant that an adjournment was required, it could not be said to have appealed “without reasonable cause”.

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:	Workers’ Compensation Regulator v Adcock (No 2) [2022] ICQ 020
PARTIES:	WORKERS’ COMPENSATION REGULATOR (appellant) v MALCOLM ADCOCK (respondent)
FILE NO/S:	C/2021/14
PROCEEDING:	Appeal
DELIVERED ON:	21 June 2022
HEARING DATE:	Application for costs considered on written submissions without oral hearing
MEMBER:	Davis J, President
ORDER/S:	There be no order as to costs of the appeal
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - COSTS - where the Workers’ Compensation Regulator appealed a decision of the Queensland Industrial Relations Commission (QIRC) varying a decision of the Regulator made under the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act) - where the QIRC found that the respondent was not fit for work until 30 November 2017 - where the Regulator challenged that finding on appeal – where, during the hearing of the appeal, the respondent sought to defend the result in the QIRC on different grounds to that supporting the judgment (the point of contention) - where the hearing of the appeal was adjourned - where the respondent relied on the point of contention - where the appellant on appeal demonstrated error - where the respondent resisted the appeal on the point of contention - where the respondent applied for costs of the appeal - whether the appeal was made vexatiously or without reasonable cause Industrial Relations (Tribunals) Rules 2011 Uniform Civil Procedure Rules 1999, r 681 Workers’ Compensation and Rehabilitation Act 2003, s 144A, s 563
CASES:	Adcock v Workers’ Compensation Regulator [2021] QIRC 227, related Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019, cited Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, cited Hanrahan v Wesfarmers Dalgety Ltd (1995) 68 IR 105, cited Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed Oshlack v Richmond River Council (1998) 193 CLR 72, cited Workers’ Compensation Regulator v Adcock [2022] ICQ 016, related
APPEARANCES:	C Callaghan instructed by the Workers’ Compensation Regulator made written submissions on behalf of the appellant A Wright of Boylan Lawyers made written submissions on behalf of the respondent