Baigorri v Workers’ Compensation Regulator (No 2) [2024] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND CITATION: Baigorri v Workers’ Compensation Regulator (No 2) [2024] ICQ 7 PARTIES: HORACIO AUGUSTO BAIGORRI (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) FILE NO: C/2023/30 PROCEEDING: Appeal DELIVERED ON: 28 March 2024 DELIVERED AT: Brisbane HEARING DATE: Decided without oral hearing MEMBER: Davis J, President ORDERS: 1. The respondent pay the appellant’s costs of the hearing before the Queensland Industrial Relations Commission in WC/2021/204 fixed at $3,391.30. 2. There is no order as to costs of the appeal. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – COSTS – where the appellant was successful in his appeal to the Industrial Court of Queensland – where he sought costs – where it was conceded that the costs were limited to the costs incurred in the hearing in the Queensland Industrial Relations Commission – where the respondent, regulator conceded costs – where disclosure of documents had been given and sought by the appellant – whether the costs of the disclosure were costs incurred in the Queensland Industrial Relations Commission or costs on the appeal LEGISLATION Uniform Civil Procedure Rules 1999 Schedule 2 Workers Compensation and Rehabilitation Act 2003 CASES: Baigorri v Workers’ Compensation Regulator [2024] ICQ 2 related. Workers’ Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 13 cited COUNSEL: M Horvath with D Payard for the Appellant PB O’Neill for the Respondent SOLICITORS: AMK Lawyers for the appellant Mr O’Neill was directly briefed by the Workers’ Compensation Regulator -- 1 of 3 -- 2 [1] This is the determination of costs consequent upon the appellant’s success on appeal from a decision of the Queensland Industrial Relations Commission (QIRC).1 [2] The appellant, Horacio Augusto Baigorri, made a claim for workers’ compensation under the Workers Compensation and Rehabilitation Act 2003 (WCR Act). WorkCover rejected the claim, the Regulator confirmed WorkCover’s decision and the QIRC dismissed Mr Baigorri’s appeal from the decision of the Regulator. Mr Baigorri appealed the QIRC’s decision to this Court and was successful. An order was made that costs be determined on the exchange of written submissions in the absence of any application for leave to make oral submissions on costs. [3] Pursuant to the order, written submissions were exchanged. No application for leave to make oral submissions on costs was filed. [4] It is common ground between the parties that generally in WorkCover matters, costs follow the event2 and that there is no power to award costs of the appeal. Costs are limited to the costs of the hearing in the QIRC.3 The appellant claims costs in the sum of $3,391.30 being as follows: 1. Counsels’ fee to appear at the hearing in the QIRC4 $1,686.00 2. Attendance of solicitor at the hearing before the QIRC5 $678.55 3. Appellant requesting disclosure6 $365.90 4. Appellant making disclosure7 $660.85 $3,391.30 [5] The respondent, the Regulator, concedes that it should pay Mr Baigorri’s costs but says that the two items for requesting and giving disclosure are costs of the appeal and not costs of the hearing before the QIRC. Those costs total $1,026.75. The Regulator concedes costs in the sum of $2,364.55. [6] There is then a factual issue as to whether the disclosure was sought and received in the proceedings before the QIRC or in the appeal to this Court. [7] On 22 December 2021, directions were made in the QIRC for the management of the proceedings then before the Commission. Included were the following directions: “1. That the Appellant supply to the Respondent by 4.00pm on 19 January 2022, a list of documents in their possession or under their control directly relevant to a matter in issue in the proceeding. 1 Baigorri v Workers’ Compensation Regulator [2024] ICQ 2. 2 Workers’ Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 13. 3 Workers’ Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 13 at [26]. 4 Item 8(f) of the Uniform Civil Procedure Rules 1999, Schedule 2, Part 2, Scale C. 5 Item 10(a) of the Uniform Civil Procedure Rules 1999, Schedule 2, Part 2, Scale C. 6 Item 13(a)(i) of the Uniform Civil Procedure Rules 1999, Schedule 2, Part 2, Scale C. 7 Item 13(a)(ii) of the Uniform Civil Procedure Rules 1999, Schedule 2, Part 2, Scale C. -- 2 of 3 -- 3 2. That the Respondent supply to the Appellant, by 4.00pm on 19 January 2022, a list of documents in their possession or under their control directly relevant to a matter in issue in the proceeding. 3. That the Appellant supply to the Respondent, by 4.00pm on 26 January 2022, copies of those documents contained in the list disclosed which the Respondent requests for which the Appellant has no legal claim to privilege. Copies of documents already provided to the Respondent in the Review or Appeal process need not be further copied and provided. 4. That the Respondent supply to the Appellant, by 4.00pm on 26 January 2022, copies of those documents contained in the list disclosed which the Appellant requests for which the Respondent has no legal claim to privilege. Copies of documents already provided to the Appellant in the Review or Appeal process need not be further copied and provided.” [8] It seems that disclosure was given and taken by Mr Baigorri in the proceedings before the QIRC. There is no reason why he ought not have those costs. [9] The Regulator should pay Mr Baigorri’s costs fixed at $3,391.30. It is appropriate to make no order as to costs of the appeal to this Court. [10] It is ordered: 1. The respondent pay the appellant’s costs of the hearing before the Queensland Industrial Relations Commission in WC/2021/204 fixed at $3,391.30. 2. There is no order as to costs of the appeal. -- 3 of 3 --