Gillan v Workers' Compensation Regulator (No. 2)

[2021] QIRC 331

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gillan v Workers' Compensation Regulator (No. 2) [2021] QIRC 331

PARTIES:     

Gillan, Jennifer
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO.:

WC/2019/36

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

24 September 2021

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 20 September 2021 and Appellant's written submissions filed on 23 September 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

ORDER:

The Appellant pays the Respondent's costs fixed in the sum of $4,452.30.

CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - APPEAL AGAINST REVIEW DECISION - COSTS - appeal decision in favour of respondent - whether costs of the hearing should follow the event - consent by appellant as to costs order sought by respondent - costs order in favour of respondent

LEGISLATION:

Uniform Civil Procedure Rules 1999, sch 2, pt 2

Workers' Compensation and Rehabilitation Act 2003, s 558

Workers' Compensation and Rehabilitation Regulation 2014, s 132

CASES:

Gillan v Workers' Compensation Regulator [2021] QIRC 315

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees [2021] ICQ 13

APPEARANCES:

Derek Legal for the Appellant.

Mr B. McMillan of Counsel directly instructed by Ms J. Webb of the Respondent.

Reasons for Decision

Introduction

1. By decision dated 10 September 2021, I made an order confirming the decision appealed against by Ms Gillan. The order was made pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').[1] I also ordered that the parties make submissions on the costs of the hearing and that unless otherwise ordered, I would make the decision about costs on the papers.

   [1] Gillan v Workers' Compensation Regulator [2021] QIRC 315.

2. The parties have made submissions on costs.

3. This is my decision about the costs of the hearing.

Background

1. Ms Gillan's appeal was originally set down for hearing on 10 and 11 June 2020. Due to the late disclosure by Ms Gillan, on 10 June 2020, of her intention to adduce evidence of matters beyond those in her Statement of Facts and Contentions, I adjourned the hearing.

2. By order dated 10 June 2020, I ordered that pursuant to s 558(3) of the Act, to the extent provided by s 132(2) of the Workers' Compensation and Rehabilitation Regulation 2014 ('the Regulation'), Ms Gillan pay the Regulator's costs thrown away by the adjournment of her appeal on 10 June 2020.

3. The appeal was then heard on 24 and 25 September 2020.

   The parties' submissions

4. The Regulator submits, having regard to the decision of Davis J, President, in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees ('QNMU'),[2] that:

   ·the power to award the costs of the hearing comes from the Act;

   ·section 558(3) of the Act is limited to the costs of the hearing; and

   ·the Commission must give reasons for the exercise of the discretion to award costs.

   [2] [2021] ICQ 13 ('QNMU'), [16]-[32].

5. There can be no dispute about the correctness of those submissions.

1. Section 558 of the Act provides:

   558     Powers of appeal body

   (1)In deciding an appeal, the appeal body may-

   (a)confirm the decision; or

   (b)vary the decision; or

   (c)set aside the decision and substitute another decision; or

   (d)set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.

   (2)If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.

   (3)Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.

1. In addition, QNMU is authority for the proposition that, having regard to the power to award costs under s 558 of the Act, costs ought ordinarily follow the event.[3]

   [3] QNMU (n 2) [16].

1. The Regulator seeks an order that Ms Gillan pay its costs to the extent permitted pursuant to s 132(2) of the Regulation.

2. Section 132 of the Regulation provides:

   132     Costs-proceeding before industrial magistrate or industrial commission

   (1)A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission.

   (2) If the magistrate or commission awards costs-

   (a) costs in relation to counsel’s or solicitor’s fees are as under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, scale C; and

   (b)costs in relation to witnesses’ fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and

   (c) costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2.

   (3) The magistrate or commission may allow costs up to 1.5 times the amounts provided for under subsection (2)(a), in total or in relation to any item, if the magistrate or commission is satisfied the amounts are inadequate having regard to-

   (a) the work involved; or

   (b) the importance, difficulty or complexity of the matter to which the proceeding relates.

1. The Regulator further submits that it was successful in defending the appeal and has incurred costs of the hearing, including on 10 June 2020, and that those costs may be awarded pursuant to s 558(3) of the Act and should be so awarded in this case.

2. Having regard to scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, the Regulator seeks the following itemised costs:

   (a)      Item 8 (f) Counsel's fees first day of hearing - $1,545.00

   (b)      Item 8 (g) Counsel's for [sic] 2 subsequent days of hearing @ $1032 = $2,064.00

   (c)      Item 10(b) Clerk attendance with Counsel - 3 days @ $281.10 = $843.30

   (d)      Total = $4,452.30

3. The Regulator seeks an order that Ms Gillan pay the Regulator's costs of the hearing, fixed in the amount of $4,452.30.

4. Ms Gillan consents to the order sought by the Regulator.

   A costs order should be made in favour of the Regulator

5. I have already made, on 10 June 2020, an order that Ms Gillan pay the Regulator's costs thrown away from the adjournment of the hearing on 10 June 2020.

6. In my view, to do justice between the parties, an order should be made that Ms Gillan pay the Regulator's costs of the hearing on 24 and 25 September 2020. The Regulator was successful in defending the appeal. There are no reasons as to why costs should not follow the event and therefore the Regulator should be awarded its allowable costs for hearing on 24 and 25 September 2020.

7. Having regard to the history of Ms Gillan's appeal, the itemised costs sought by the Regulator are reasonable.

8. I assume, given the order sought by the Regulator and given Ms Gillan's consent to that order as sought, that she has not paid the Regulator's costs thrown away from 10 June 2020.

9. For the reasons given above, I will make the order sought by the Regulator.

   Order

10. I make the following order:

The Appellant pays the Respondent's costs fixed in the sum of $4,452.30.