Wang v Workers' Compensation Regulator

Workers' Compensation and Rehabilitation Regulation 2014, s 132

Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302

Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163

Wang v Workers' Compensation Regulator (No. 3) [2023] QIRC 164

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No.2) [2021] ICQ 13

Mr S. Sapsford of Counsel directly instructed by Ms R. Jamieson of the Respondent.

[1] By decision dated 5 June 2023, I made an order that two applications in existing proceedings filed by Mr Wang on 13 and 27 March 2023, which were in effect to reopen his appeal made under the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), which was heard in Cairns on 7 and 8 March 2023, be dismissed.[1] I reserved any question of costs in relation to those two applications.[2]

[2] By further decision dated 5 June 2023, I made an order that the review decision of Respondent dated 2 December 2021, against which Mr Wang had appealed, be confirmed.[3] That order was made pursuant to s 558(1)(a) of the Act.[4] 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. [5]

[5] The Regulator submits, having regard to the decision of Davis J, President, in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No.2) ('QNMU'),[6] 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.

[6] There can be no dispute about the correctness of those submissions.

[7] Section 558 of the Act provides:

(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.

[8] In addition, QNMU is authority for the proposition that, having regard to the power to award costs under s 558(3) of the Act, costs ought ordinarily follow the event.[7]

[9] The Regulator further submits that Mr Wang's applications in existing proceedings filed on 13 March 2023 and 27 March 2023 are '... part of the costs of the hearing of the matter and costs properly awarded to the Respondent for the reasons set out herein.' The reasons given were that counsel and instructing clerk were required to attend the hearing of the appeal on 7 and 8 March 2023 and to then respond to Mr Wang's two applications in existing proceedings, which were filed on 13 March 2023 and on 27 March 2023, at a subsequent hearing date on 28 April 2023.

[10] The Regulator seeks an order that Mr Wang pay its costs to the extent permitted pursuant to s 132(2) of the Workers' Compensation and Rehabilitation Regulation 2014 ('the Regulation').

[11] Section 132 of the Regulation provides:

1. 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.

(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.

[12] The Regulator further submits that it has incurred considerable costs in attending to the hearing in Cairns, the preparation of written submissions and in responding to Mr Wang's two Applications in existing proceedings, for which it will not be reimbursed. The Regulator further submits that having regard to Mr Wang's affidavit filed on 12 June 2023 (which is to be read with Mr Wang submissions on costs) that Mr Wang is not without income on a regular basis.

[13] Having regard to scale C under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, the Regulator applies for the following itemised costs:

• Item 8 (f), Counsel's fee to appear at hearing - 7 March 2023: $1,686.00;

• Item 8 (g), Counsel's refresher fee - 8 March 2023: $ 1,126.00;

• Item 8 (j), Counsel's fee to respond to application in existing proceedings filed on 13 March 2023 - 28 April 2023: $ 271.40;

• Item 8 (j), Counsel's fee to respond to application in existing proceedings filed on 27 March 2023 - 28 April 2023: $ 271.40; and

• Item 10(b), attendance of clerk at hearing - 7 and 8 March 2023 at $306.75 per day: $613.50

[14] The Regulator seeks an order that Mr Wang pay its costs of the hearing, fixed in the amount of $ 3,968.30.

• he is an injured worker and his injuries give rise to an entitlement to compensation, pursuant to the Act, on and from 28 August 2019;

• his work related injuries deteriorated and resulted in him having surgery on his left foot on 18 March 2021 and that surgery resulted in his total or significant incapacity for work for more than 12 months, and that further surgery on his left foot on 7 July 2021 resulted in his total or significant incapacity for some months;

• his work-related injuries are still not stable and stationary and may deteriorate again;

• on 1 June 2023, he obtained a Work Capacity Certificate because he is still partially incapacitated for work;

• his work-related injuries resulted in his permanent impairment such that his work capacity and earning capacity have been permanently reduced and that is life has been difficult for many years because of his work-related injuries; and

• it is unreasonable to make an order that he pay the Regulator's costs having regard to human rights and public interest considerations and the fact that he is a person with a disability, is a needy person and as the victim of an accident.

A costs order should be made in favour of the Regulator

[16] As referred to earlier, pursuant to s 558(3) of the Act, my discretion to award costs is limited to the costs of the hearing.

[17] A question arises as to whether Mr Wang's applications in existing proceedings filed on 13 and 27 March 2023, being applications subsequently filed to the hearing of Mr Wang's substantive appeal on 7 and 8 March 2023 in Cairns, can be considered to be part of the hearing of Mr Wang's appeal in respect of which my discretion to make an order for costs is triggered pursuant to s 558(3) of the Act.

[18] On the face of it, these two applications in existing proceedings were part of the hearing because they were, for all practical purposes, applications to reopen Mr Wang's case after the parties called evidence and made their final submissions in Cairns on 7 and 8 March 2023, but prior to an order being made by me pursuant to s 558(1)(a) of the Act.

[19] This view is supported by authority. In QNMU,[8] Davis J, President, relevantly stated:

[28] However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act.12 In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.

[29] In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing".

[30] The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:

"1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."

[31] I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.

[32] Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.[9]

[20] The Regulator was successful in defending Mr Wang's substantive appeal as well as Mr Wang's two subsequent applications in existing proceedings.

[21] There are no reasons as to why costs should not follow these events. I do not accept Mr Wang's submissions about costs. Contrary to Mr Wang's submissions, he does not have a compensable injury within the meaning of the Act. This is because my decision about Mr Wang's substantive appeal was that he did not have a valid and enforceable application for workers' compensation.

[22] Mr Wang's submissions about his partial incapacity to work because of various surgeries to his left foot and, as a consequence, his limited earning capacity, is not a reason to deny the Regulator its costs. In Council of the Law Society of New South Wales v Hislop,[10] Brereton JA stated:

1. Why should the position be any different here? It must be accepted that neither the mere impecuniosity of the unsuccessful party, nor the futility of making a costs order because it could not be satisfied, is sufficient reason for declining to make such an order, where one is otherwise appropriate. In Northern Territory v Sangare, the issue was "whether, in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of the unsuccessful party is a consideration that, without more, may justify a decision to deny the successful party its costs". With reference to Board of Examiners v XY, the High Court referred to it being "basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party", and added:

That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation.

1. The Court also referred to Oshlack v Richmond River Council - in which, by majority, a decision of this court had been set aside and that of the Land & Environment Court that there be no order as to costs in respect of an appellant's unsuccessful challenge to the local authority's consent to a development application restored - explaining that the basis of that decision was that there was a "public interest" in the outcome of the litigation objectively speaking, and that it was not unfair to require the local authority to bear its own costs of litigation where it had an interest in resolving uncertainty attending the valid exercise of its powers. Those considerations were said to be of no relevance in Sangare, because "[t]he litigation here was brought to vindicate the respondent's private interest in his reputation by the recovery of damages". The Court said that it was erroneous to decline to make the order sought because of a perception that the award would be futile, concluding:

The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant.[11]

[23] Further, while it may well be the case that Mr Wang is partially incapacitated from the various surgeries to his left foot, his affidavit filed in support of his submissions about costs confirms that from November 2022 to the present time, he has been employed albeit on a casual basis.

[24] Therefore the Regulator should be awarded its allowable costs for the hearing on 7 and 8 March 2023. I will also allow the Regulator's costs for responding to Mr Wang's two applications in existing proceedings filed on 13 and 27 March 2023. While both those applications were heard at the same time and on the one day, being 28 April 2023, they were, nevertheless, two separate applications to which the Regulator had to respond[12] by which different relief was sought and which involved different considerations.

[25] Having regard to the history of both Mr Wang's substantive appeal and his applications in existing proceedings, the itemised costs sought by the Regulator are reasonable.

The Appellant pays the Respondent's costs of the hearing fixed in the sum of $ 3,968.30.

[1] Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163.

[3] Wang v Workers' Compensation Regulator (No. 3) [2023] QIRC 164.

[6] [2021] ICQ 13 ('QNMU'), [16]-[32].

[10] [2019] NSWCA 302.

[12] T 1-15, l 32 to T 1-16, l 36 (Transcript, 28 April 2023).