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[2014] QIRC 172
General information, not legal advice.
Queensland Industrial Relations Commission
2014-10-29
Mr J
Original judgment source is linked above.
WORKERS' COMPENSATION - APPLICATION FOR COSTS - Appeal withdrawn during hearing - Appellant awarded costs for two days of the hearing - Jurisdictional challenge not warranted - Ambiguity in Appellant's claim - Costs thrown away
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) No. 2, 13 October 2010
_Trimble v Q-COMP and State of Queensland (for Queensland Audit Office) (_WC/2012/73) 5 September 2013
Mr J. Morris of Counsel, instructed by Murphy Schmidt Solicitors for the Appellant.
Mr P. O'Neill of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the 1st Respondent.
Dr M. Spry of Counsel, instructed by Crown Law for the 2nd Respondent.
[1] This matter relates to costs sought by Simon Blackwood (Workers' Compensation Regulator) ("The Regulator") relating to a partly heard matter (WC/2012/73). In that matter, Mr Craig Trimble was the Appellant ("Appellant"). The employer, the State of Queensland (Queensland Audit Office) ("Crown") had been granted leave to appear. Towards the end of completing his case, the Appellant sought to withdraw his application.
[2] The Appellant and the Crown have resolved issues regarding costs. However, the Appellant has questioned the Regulator's Schedule of Costs and has also sought costs against the Regulator.
[3] Section 558(3) of the Workers' Compensation and Rehabilitation Act 2001 (The "WCRA") relates to the award of costs in respect of appeals to the Commission.
"Costs or the hearing are in the appeal body's discretion, except to the extent provided under regulation."
[4] The relevant regulation is Regulation 113 of the Workers' Compensation & Rehabilitation Regulations 2001 ("WCRR") which governs the award of costs in this jurisdiction. The regulation relevantly provides -
"113 Costs proceeding before Industrial Magistrate of Industrial Commission
(1) The costs of a proceeding before an industrial magistrate or the industrial commission are in the discretion of the magistrate or commission.
(2) However, if the magistrate or commission allows costs -
(a) for costs in relation to counsel's or solicitor's fees -
(i) the costs are to be under the Uniform Civil Procedure Rules 1999, schedule 3, scale E; or
(B) the importance, difficulty or complexity of the matter to which the proceedings relate; the industrial magistrate or the industrial commission considers the amount of costs provided for under subparagraph (i) are inadequate remuneration, the magistrate or commission may allow costs (in total or in relation to any item) in an amount up to 1.5 times the amount provided for under subparagraph (i) (in total or in relation to that item); and
(b) for costs in relation to witnesses' fees and expenses - the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, part 4; and
(c) for costs in relation to bailiff's fees - the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, schedule 2, part 2.
(a) the Authority or an insurer is required to pay costs in a hearing in relation to a witness who is a doctor or otherwise is of a professional description; and
(b) the amount of fees and expenses payable in relation to the witness by the party that called the witness is more than the amount of costs allowed by the industrial magistrate or the industrial commission.
(4) The Authority or the insurer may, on the application of the party that called the witness, pay an additional amount on account of the costs that the Authority or the insurer accepts as reasonable, having regard to the subject matter of the hearing."
[5] In Simon Blackwood (Workers' Compensation Regulator) and Peter Egan[1] C/2014/14, the President of the Industrial Court, Martin J referred to "the well-known principles enunciated in a number of cases but particularly by the High Court in Latoudis v Casey[2]". In that case Mason CJ, and Toohey and McHugh JJ discussed the nature of an award of costs. At 543, Mason CJ said:
"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings".
"Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings."
"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory."
[6] Further, in Q-COMP v Australian Language Schools Pty Ltd[4], President Hall stated in paragraph 14:
"Each of s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 and s 113 of the Regulation emphasize that the award of costs involves the exercise of discretion. However, in the ordinary case, costs have traditionally followed the event. This is a very ordinary case."
[7] A considerable number of hearing dates were allocated for the hearing for this matter. Those dates commenced in June 2013 and continued through to June 2014.
[8] On 20 June 2014, the Appellant, Mr Trimble, advised the Regulator, the Crown and the Commission that he sought to withdraw his application. The matter had been set for a continuation of hearing on 23, 24, 25, and 26 June 2014.
[9] The Appellant and the Crown have settled on costs with each side bearing their own costs.
[10] Costs are sought by the Regulator for almost all of the days - the exceptions are for a Public Holiday, and a day vacated for the consideration of submissions on a jurisdictional challenge mounted by the Regulator and ultimately supported by the Crown. As well the dates of 25 and 26 June 2014 have not been pursued by the Regulator.
[11] The primary issue in contention relates to the jurisdictional challenge which was raised on the second day of hearing on 12 June 2013.
[12] The jurisdictional claim taken by the Regulator and supported by the Crown was as follows:
"... whether or not the Appellant is able to rely upon, and whether the Commission has jurisdiction to hear and make determinations on, the matters identified in the Notice of Appeal and Statement of Stressors in circumstances where they did not form part of the Appellant's initial Workers' Compensation Application of Appeal to Q-Comp."
[13] That challenge was rejected by the Commission. In the ensuing decision, the Commission noted:
".....I believe that there had been reasonable notice of stressors 1, 2 and 3 and that this was the course to be pursued by the Appellant. This was the case at the time of the Notice of Appeal (filed 28 February 2012), the Conference before the Commission on 3 October 2012, in the Statement of Stressors lodged by the Appellant on 21 December 2012 and at the time of the Mention before the Commission on 20 May 2013.
There was ample opportunity to raise these issues at the Mention of the matter held on 20 May 2013. The identification of stressors is contemplated in the Mention held prior to an Appeal being heard. However, this issue of the nominated stressors was not mentioned. Having been made aware of the nominated stressors and not mentioning the point until the commencement of the hearing is really an issue only for Q-COMP and the employer."
[14] In giving its written decision on the primary issue (the jurisdictional point), the Commission found, for other reasons, that the scope of the Appellant's case was ambiguous.
[15] When that issue was addressed on 11 October, 2013 the Commission determined to let the matter proceed for the purpose of permitting evidence to ensure that all perspectives were considered, whilst noting that this had the potential to lengthen the case. The parties were given time to consider this decision and advised that if they wished to challenge it they should do so within two weeks. No challenge occurred.
[16] The Appellant believed that it should be awarded costs for the dates of 12 and 13 June 2013 on the basis that it had to defend an application that in its view was unnecessary, unreasonably brought and brought at a late stage when the issues had been known to it for over 15 months.
[17] The Regulator in rejecting this submission, says that if the Commission were minded to award costs to the Appellant for those two days, then it should do so with costs being borne equally between the Regulator and the Crown.
[18] The case instigated by the Regulator (and later supported by the Crown) had no prospect of success when the full history of the application was considered. It was a claim which was brought unnecessarily and unreasonably in my view. On that point, I accept that the Appellant should be awarded its costs for those two days - 12 and 13 June 2013. Those costs are awarded against the Regulator.
[19] I am not persuaded that extra uplift costs sought by the Appellant for those dates should be awarded in these circumstances. The Appellant had stated that the jurisdictional challenge was a "black and white issue I think in terms of either the Commission will determine that it has jurisdiction or it doesn't" [T3-22]. I agree with that assessment.
[20] Much of the costs sought by the Regulator were accepted by the Appellant and require no further mention.
[21] The Appellant challenged the Regulator's Conference Fee for Counsel (Item 6(d) of UCP) of 7.5 hours at $175.00. The Appellant stated that as the Regulator had one witness (a Psychiatrist), with the Crown calling 5 lay witnesses, the claim was excessive and the conference fee should only be for one hour.
[22] A random assessment of the time taken by the Regulator to conduct its conference/s is problematic and arguably unfair. Given that this matter traversed a very long period of time, I have accepted the Regulator's claim.
[23] There is confusion around the Regulator's claims for Refresher Fees and the Appellant's response to these claims.
[24] It is clear in the Regulator's amended Schedule of Costs that it is seeking 11 days after the first day of the hearing. The Appellant says it should be 8 days.
[25] The Appellant says that if one considers the 4 days from 11-14 June 2013, plus 5 days from 9-13 December 2013 and 4 days from 23-26 June 2014. Then that equals a maximum total of 13 days being sought by the Regulator.
[26] If the first day of hearing on 11 June 2013 is withdrawn (see s 73 Uniform Civil Procedure Rules 1999) that leaves 12 days.
[27] Withdrawing 12 and 13 June 2013 where the Appellant is awarded costs leaves 10 days. For the vacated day of 14 June 2013 (where the Regulator does not seek costs) leaves 9 days.
[28] However, the Regulator has been awarded costs for 23 and 24 June 2014 which leaves a total of 11 days. With regard to the dates of 23 and 24 June 2014, while I have not received particular submissions on this point from the Regulator, it seems highly improbable that with only one day's notice of an application being withdrawn, the Regulator would have been able to schedule other work for Monday 23 June and also 24 June 2014.
[29] The Refresher Fees for 11 days is awarded to the Regulator.
[30] Under Item 6(j) which relates to an Application in a proceeding, the Regulator has claimed an amount of $186.00. The Regulator states that this claim is in respect of the costs application and the requirement to prepare written submissions. Those costs are awarded to the Regulator.
[31] Item 8 (b) (incorporating $275.00 x 2 days and $184.00 x 6 days) relates to the attendance of a clerk. The Regulator has claimed the amount of $825.00 ($270.00 x 3 days). The Appellant says that 8 days can only be claimed. The Regulator says that no claim had been made for the vacated day of 14 June 2013 (or for the week) as the Appeals Officers were able to undertake other work. A similar submission was made in this regard as was made relating to Item 6(g). The Regulator's claim is granted.
[32] The Appellant seeks further costs as it relates to the days which were abandoned for the purpose of considering the jurisdictional argument.
[33] Concerning the Costs of Application identified by the Appellant for the week of 11-14 June 2013 the claim is as follows:
[34] The Appellant has identified Thrown Away Costs as a consequence of the manner in which the application proceeded in the week of 12-14 June 2013. This claim is granted.
[35] Under the heading of Item 10, Other Applications to the court fees were sought of $370.00. This was granted.
[36] As well an uplift fee is sought pursuant to s 113(2) of the Workers' Compensation and Rehabilitation Regulation 2003 of $537.50. This claim is not granted for reasons earlier cited.
[37] The Appellant seeks costs regarding travel undertaken by Mr Jeff Davis and costs associated with Dr Lockwood.
[38] The Regulator questioned whether Mr Davis and Dr Lockwood would have been able to give evidence during the week of 11-14 June 2013.
[39] In my view, the prospect of both Mr Davis and Dr Lockwood giving evidence during the week of 11 - 14 June 2013, had the week run its full course, would be impossible.
[40] From the Transcript of 11 June 2013, Mr Davis had been scheduled for Day Two of the hearing, together with Dr Korman and Ms Papadolopous and Drs Konkoly and Lockwood on Day Three. That programme would never have been met when one considers ultimately how long it had taken to finalise the Appellant's actual evidence.
[41] The Regulator has set out the time taken, post the week of 11-14 June 2013, for the hearing of the Appellant's evidence.
[42] The Appellant's evidence was first heard on 11 June 2013, then heard on 9, 10, and 11 December 2013 until interposed by medical practitioners Dr Korman and Dr Konkoly. On 12 December 2013, the Appellant continued under re-examination until 11.40am on that day.
[43] If that time frame was allocated to the earlier days of 11-14 June 2013, then the Appellant would not have finished his evidence until after Friday 14 June 2013.
[44] Dr Lockwood subsequently was called to give evidence on 13 December 2013 and the Regulator was not clear whether any further fee was charged by her for her evidence at that time. This is a matter requiring further clarification and resolution by the parties.
[45] I am not prepared to award any costs thrown away on the week of 11-14 June 2013 as it relates to Mr Davis.
[46] The submissions in this matter contain many errors and are not set out, in some instances, in a logical manner. Because of the nature of the application, numerous decisions have been required.
[47] The decisions made are referenced throughout the judgment. While it is accepted that, in an "ordinary case", costs traditionally follow the event, this matter has not been an "ordinary case". Save for the dates of 12 and 13 June 2013, costs have followed the event.
[48] Unfortunately, reducing the decision into specifically listed amounts of money awarded is problematic for reasons earlier outlined. The parties are to perform this task. The parties are directed to supply their adjusted Schedule of Fees (based upon the decision) to the other side before an agreed document is forwarded to the Commission.
[49] The parties are directed to provide that agreed documentation in monetary terms within two weeks from the release of this decision. After the receipt of that document, the Commission will specifically identify the monetary outcome of the decision and issue the appropriate Orders.
[2] Latoudis v Casey3 [1990] HCA 59; (1990) 170 CLR 534
[4] Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) No. 2, 13 October 2010
Trimble
Simon Blackwood
(1990) 170 CLR 534