Bennedick v Workers' Compensation Regulator (No. 2) [2025] QIRC 372

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bennedick v Workers' Compensation Regulator (No. 2) [2025] QIRC 372 PARTIES: Bennedick, Nathan (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2021/174 PROCEEDING: Costs DELIVERED ON: 24 December 2025 HEARING DATES: Decided without oral hearing MEMBER: HEARD AT: O'Connor VP On the papers ORDERS: 1. The respondent pay the appellant’s costs of the hearing fixed in the amount of $10,026.10. 2. Costs to be paid within 14 days of the date of this decision. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL AGAINST REVIEW DECISION – COSTS OF HEARING - where application was one for acceptance in hearing before the Queensland Industrial Relations Commission pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 – where appellant has sought costs – where -- 1 of 7 -- 2 parties ordered to file submissions on the costs of hearing pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 – whether costs should be awarded. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 451 s 545 Uniform Civil Procedure Rules 1999 (Qld) Schedule 2, part 2 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 558 Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45 Uniform Civil Procedure (Fees) Regulations 2019 (Qld) r 22, r24, r27 Workers' Compensation and Rehabilitation Regulation 2014 (Qld) r 132 Baigorri v Workers' Compensation Regulator (No 2) [2024] ICQ 7 Northern Territory v Sangare (2019) 265 CLR 164 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No. 2) [2021] ICQ13. Reasons for Decision [1] This is the determination of costs consequent upon the decision of the Queensland Industrial Relations Commission ('the Commission') released on 5 September 2025, in which the decision of the Workers' Compensation Regulator ('the respondent') dated 12 October 2021 was substituted with another decision namely, that the appellant had sustained an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') . -- 2 of 7 -- 3 [2] In my decision of 5 September 2025 an order was made that costs be determined on the exchange of written submissions unless otherwise ordered, with the decision on costs to be determined on the papers. 1 [3] Pursuant to the order, written submissions were filed by the respondent on 19 September 2025. On even date the appellant filed their written submissions also. [4] It is submitted that the appellant was successful in the substantive appeal before the Commission, and that, as a general rule, costs follow the event, thus the appellant should have its costs. 2 [5] The appellant seeks costs of $10,026.10 pursuant to Schedule 2 scale of costs – Magistrates Courts, Part 2, scale C of the Uniform Civil Procedure Rules 1999 (Qld) ('the UCPR') as applying at the time of the hearing on 20, 21 and 22 May 2024 as follows: 1. Counsel's fees to appear at hearing on 20 May 2024.3 $1,770.00 2. Counsel's refresher fee to appear at hearing on 21 and 22 May 2024.4 $2,364.00 3. Counsel's out of chambers.5 $180.00 4. Attendance of solicitor with counsel on 20, 21 and 22 May 2024. 6 $2,137.20 5. Statement of Facts and Contentions.7 $1,289.00 6. Requesting Disclosure.8 $384.15 7. Making Disclosure.9 $693.85 8. Attendance and travelling allowance for lay witnesses.10 Leight Marvin $116.80 Raymond Fraser $99.30 Greg Stratford $142.70 Nathan Bennedick $89.50 9. Attendance allowance for professional witnesses.11 1 Bennedick v Workers' Compensation Regulator [2025] QIRC 240. 2 Appellants Submissions as to costs, filed 19 September 2025, [3]-[4]. 3 See r 132(2)(a) of Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('the WCR Regulation') and the UCPR Schedule 2, part 2, Scale C, Item 8(f). 4 UCPR Schedule 2, part 2, Scale C, Item 8(g). 5 Ibid, 8(i). 6 Ibid, 10(a). 7 Ibid,1. 8 Ibid, 13(a)(i). 9 Ibid, 13(a)(ii). 10 R 132(2)(b) of the WCR Regulation and Uniform Civil Procedure (Fees) Regulations 2019 ('the UCPR Regulations'), Part 3, rr22 and 24(1)(b). 11 Ibid, rr25 and 27. -- 3 of 7 -- 4 Dr Hussain $103.20 Dr Herkes $274.80 Dr White $274.80 10. Service fee.12 Dr Hussain Notice to Attend $53.40 Dr White Notice to Attend $53.40 Total: $10,026.10 [6] In respect of disclosure, the appellant relies on the decision of Baigorri v Workers' Compensation Regulator (No 2)13 and submits it is entitled to claim for items 13(a)(i) and 13 (a)(ii) of the UCPR (items 6 and 7 on the above table). Consideration [7] Costs before the Commission are calculated in accordance with s 558(3) of the Act; schedule 2 – Scale of costs – Magistrates Courts, Part 2, scale C of the UCPR and r 132 of the Workers' Compensation and Rehabilitation Regulation 2014 ('the WCR Regulation'). [8] Section 558(3) of the WCR Act provides: 558 Powers of appeal body … (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation. [9] Regulation 132 of the WCR Regulation states the following: 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 12 See r132(2)(c) of the WCR Regulation and the UCPR Regulations Schedule 2, Part 2, Item1. 13 [2024] ICQ 7. -- 4 of 7 -- 5 (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. [10] Section 558 of the WCR Act and r 132 of the WCR Regulation provide the Commission the statutory power to award costs. [11] In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No. 2)14 the Industrial Court confirmed the position in respect to costs under the Act as follows: 1. The power of the Commission to award costs derives from the WCR Act and is not restricted by s 545 of the Industrial Relations Act 2016; 2. The power to award costs in s 558(3) of the WCR Act is limited to costs of the hearing and does not include costs of the appeal; and 3. The Commission must give reasons for the exercise of its discretion to award costs. [12] It follows that s 558(3) of the WCR Act ought to be read to limit the exercise of the discretion to the awarding of 'costs of the hearing'; and secondly, to the extent provided for in r 132 of the WCR Regulation. [13] The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission.15 However, the discretion under s 558(3) is not unfettered. [14] The respondent concedes that it should pay the appellant’s costs which it has quantified in the sum of $7,927.30. However, what appears to be in contention is: Item 3 Counsel’s out of chamber, $180.00; Item 5 for $1,289.00 being the Statement of Facts and Contentions; Item 8 the allowances for the lay witnesses; Item 9 the allowances for two of the professional medical witnesses; and Item 10 the service fees of $106.80. Those costs total $2098.80. [15] The discretion to make an order for costs must be exercised judicially by reference only to considerations relevant to its exercise and upon facts with or leading up to litigation.16 14 [2021] ICQ13. 15 The WCR Regulation, r 132. 16 Northern Territory v Sangare (2019) 265 CLR 164, 172-3[24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ). -- 5 of 7 -- 6 [16] The claim for Counsel’s out-of-chamber of $180.00 is allowable under Item 8(i) of the UCPR, schedule 2, part 2, scale C. [17] In respect of the claim for the filing of the Statement of Facts and Contentions, the appellant relies on the decision of Baigorri v Workers' Compensation Regulator (No 2)17 and submits it is entitled to claim for item 1 of the UCPR. In Baigorri, a claim was sought for the costs of disclosure in the proceedings made pursuant to an order of the Commission. Davis J allowed a claim for costs of disclosure based upon the directions given by the Commission for the conduct of the proceedings.18 [18] In appeals brought to the Commission under the WCR Act, it is now standard practice for a direction to be given requiring the appellant to file and serve a Statement of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (the 'IR Act'). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction. The filing of the Statement of Facts and Contentions was in accordance with a direction of the Commission in the proceedings before the Commission. There is no reason why the appellant ought not have those costs. [19] The appellant claims under Item 8 for the attendance and travelling for three lay witnesses, and an attendance fee for the appellant. The costs claimed are allowable under r 132(2)(b) if the WCR Regulations and Schedule 2 Part 3, rr22 and 24(1)(b) of the UCPR. The costs claimed are allowable. [20] Item 8 on the table are reflective of the actual amounts paid to the lay witnesses, Marvin, Fraser and Stratford, in accordance with r 32(2)(b) of the WCR Regulations. 19 [21] Item 9 are also claimed in accordance with r 132(2)(b) of the WCR Rules however, in respect of Dr Herkes and Dr White, as they are specialist Neurologists, an uplift to the maximum amount to be paid of $274.80 is claimed for each. 20 [22] Item 10 are service fees for Notice to Attend to both Dr Hussain and Dr White. The amount claimed is in accordance with r 132(2)(c) of the WCR Rules.21 17 [2024] ICQ 7. 18 Ibid, [7] 19 Appellant's Submissions as to costs filed 19 September 2025, [11] See "LRM – 1" to Affidavit of Linda McEnery sworn 19 September 2025. 20 Appellant's Submissions as to costs filed 19 September 2025, [12] See "LRM – 2" to Affidavit of Linda McEnery sworn 19 September 2025. 21 Ibid, [13] See "LRM – 2" and "LRM-4" to Affidavit of Linda McEnery sworn 19 September 2025. -- 6 of 7 -- 7 [23] The discretion to award costs has been enlivened. No grounds have been advanced by the respondent to persuade me not to exercise my discretion. There is no reason why the appellant should not pay the respondent's costs. [24] Under item 9, the appellant claims for the three medical witnesses called. In respect of Dr Hussain, a general practitioner, an amount of $103.20 is sought. In relation to Dr Herkes and Dr White, both specialist neurologists an uplift to the maximum amount of $274.80 is sought in reliance on r 27(1) of the Uniform Civil Procedure (Fees) Regulations 2019 (Qld) for special circumstances. For the purposes of the rule, a special circumstance includes a doctor who is a specialist health practitioner.22 I would allow the claim in respect of Dr Herkes and Dr White. [25] Finally, a service fee is sought for the Notice to Attend for both Dr Hussain and Dr White. The amount claimed is in accordance with r 132(2)(c) of the WCR Regulation. This is an allowable cost. [26] Accordingly, the respondent should pay the respondent costs fixed in the amount of $10,026.10. Order 1. The respondent pay the appellant’s costs of the hearing fixed in the amount of $10,026.10. 2. Costs to be paid within 14 days of the date of this decision. 22 The UCPR Regulations, r27(2) -- 7 of 7 --