Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 266 PARTIES: Adcock, Malcolm (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO.: WC/2019/64 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 15 September 2023 MEMBER: Power IC HEARD AT: On the papers ORDER: The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65 CATCHWORDS: WORKERS' COMPENSATION – MISCELLANEOUS MATTERS – COSTS – appeal decision in favour of Appellant – where an order for costs made that Respondent pay the costs of an incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission – where parties do not agree on costs payable LEGISLATION: Industrial Relations Act 2016 (Qld), s 545 Uniform Civil Procedure (Fees) Regulation 2019 (Qld), pt 3, ss 25 and 27 Uniform Civil Procedure Rules 1999 (Qld), sch 2 pt 2 scale C Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 144A and 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld), s 132 -- 1 of 11 -- 2 CASES: Adcock v Workers' Compensation Regulator [2021] QIRC 227 BM Alliance Coal Operations Pty Ltd v BCG Contracting Pty Ltd & Ors (2012) 1 Qd R 228 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Jackson v Purton [2011] TASSC 28 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Local Government Association of Queensland v Queensland Services Industrial Union of employees [2020] QIRC 068 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Truenergy Australia Pty Ltd v minister for Industrial Relations (2005) 93 SASR 393 Workers' Compensation Regulator v Adcock [2022] ICQ 016 Workers' Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) [2021] ICQ 013 Reasons for Decision [1] On 25 June 2021, the reasons for decision were published in Adcock v Workers' Compensation Regulator ('the substantive decision').1 [2] In the substantive decision, the Commission as currently constituted made orders setting aside the decision of the Workers' Compensation Regulator ('the Respondent') and varying the Respondent's decision made pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). The following order was also made: 4. That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 1 [2021] QIRC 227. -- 2 of 11 -- 3 [3] The substantive decision was subsequently appealed by the Respondent. The appeal decision was delivered by President Davis on 24 May 2022 in Workers' Compensation Regulator v Adcock.2 [4] On 29 November 2022, Mr Malcolm Adcock's ('the Appellant') legal representative informed the Commission that the parties were unable to reach agreement with respect to the costs of the substantive decision. Legislative framework [5] Section 558 of the WCR 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. [6] Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('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. [7] Section 558(3) of the WCR Act and s 132 of the Regulation confers the Commission with the power to award costs. 2 [2022] ICQ 016. -- 3 of 11 -- 4 Appellant's submissions [8] The Appellant refers to the Respondent's assertion that the only costs that can be paid relates to the physical attendance in the Commission for the hearing, relying exclusively on the decision of President Davis J in Workers' Compensation Regulator v Queensland Nurses and Midwives Union of Employees (No 2) ('QNMU').3 [9] The Appellant submits that the Respondent's argument fails on two grounds, that: 1. even if costs were only allowable for the costs of the hearing, that must also mean costs associated with the written closing submissions, including consideration of the Respondent's written closing submissions, of the hearing; and 2. there is an express order allowing for costs incidental to the appeal to which the Respondent is bound. [10] The Appellant attached a letter sent to the Respondent, dated 8 November 2022, which outlines an itemised list of costs. Respondent's submissions [11] The Respondent submits that it was confirmed in QNMU that: (a) the power to award costs comes from the WCR Act and is not restricted by s 545 of the Industrial Relations Act 2016 (Qld); (b) section 558(3) of the WCR Act is limited to costs of 'the hearing' and not costs of the appeal; and (c) the Commission must give reasons for the exercise of the discretion to award costs. [12] The Respondent submits that, as noted in QNMU, the power to award costs is not a common law power and is one granted by statute. Consequently, where the Commission is not vested with the power by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so. [13] The Respondent further submits that the Appellant was successful in the appeal, has incurred costs of the hearing including for his solicitor who appeared at the hearing, and that there is no compelling reason why costs of the hearing should not be ordered in the exercise of the Commission's discretion. [14] In relation to the solicitor's fees, the Respondent submits that the Commission is bound to apply sch 2 pt 2 scale C of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR') pursuant to s 132(2)(a) of the Regulation. In this regard, the Respondent submits that: (a) the costs in relation to claim and statement of claim and service; (b) the combined costs in relation to preparation for the trial; and 3 [2021] ICQ 013. -- 4 of 11 -- 5 (c) the costs regarding disclosure are all costs for the appeal and not of the hearing and are, therefore, not claimable. [15] The Respondent submits, with respect to the costs of written submissions, including submissions in reply, and the costs in considering the Respondent's written submissions, that the hearing concluded on 27 October 2020 and costs associated with subsequent written submissions are costs of the appeal and are not claimable. The Respondent further submits that written submissions are not contemplated by any item contained within sch 2 pt 2 of the UCPR. [16] The Respondent submits the Commission would not be satisfied this matter involved facts, issues or evidence such that the discretion to uplift those costs should be exercised pursuant to s 132(3) of the Regulation in the Appellant's favour and that the Appellant should be awarded solicitor's costs as follows: (a) Item 9 (a) Solicitor appearance at hearing without counsel (first day) – $1,255.00 (b) Item 9 (b) Solicitor appearance at hearing without counsel (second day) - $865.00 Total solicitor's fees - $2,120.00 [17] The Respondent submits, with respect to the claimed disbursements, that the Appellant is entitled to costs for professional witness fees pursuant to s 132(2)(b) of the Regulation and s 25 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) in the amount of $95.70 for an absence from their employment of a period of three hours or less. The Respondent further submits that they are agreeable to the Appellant being awarded an amount of $576.95 pursuant to s 27 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) on account of professional fees for Dr Dion Suyapto's evidence at the hearing. [18] The Respondent submits that the total amount payable by the Respondent to the Appellant should be fixed in the amount of $2,792.65. Appellant's submissions in reply [19] In reply, the Appellant submits that the decision in QNMU was delivered after the substantive decision in this matter was determined and so does not have retrospective application and that there was no reason for the Commission to consider and be bound by QNMU at the time of the substantive decision. [20] The Appellant further submits that the Respondent's issue is a point of law, namely, the assertion that the Commission would be acting ultra vires is a failure by the Respondent to properly understand the doctrine of stare decisis. [21] The Appellant submits the Respondent has erred in submitting that the 'hearing concluded' on 27 October 2020 as the hearing does not conclude until closing submissions and responses are provided. The Appellant submits that if a hearing was to conclude at the point where the evidence has been heard and tested, this would mean that a decision could then be made without further notice to the parties. -- 5 of 11 -- 6 [22] In respect of the disbursements, the Appellant does not dispute the Respondent's submissions relating to Dr Suyapto's attendance fee, however, submits that Dr Suyapto's reports as well as the flights are claimable as they are incidental to the hearing. [23] The Appellant agrees that sch 2 pt 2 scale C of the UCPR applies, however, submits that the work involved as well as the importance, complexity and difficulty of the matter enlivens the discretion under s 132(3) of the Regulation. In support, the Appellant submits that: (a) there were legal issues that was considered relating to a capacity to sell labour in the open labour market and references were made to High Court authorities where the High Court commented on a similar complexity; (b) the date regarding when the Appellant's incapacity ceased was not simple and required multiple expert medical doctors to comment on that issue; (c) the facts were complex and required a thorough examination of the Appellant, and the pre-injury employer; (d) a further degree of complexity arose with the tendering of evidence, with the industrial issues that pre-dated the workers' compensation claim; and (e) there were issues relating to mitigation which needed to encapsulate the multiple erroneous decisions made by the compensating authority throughout the Appellant's claim, which commenced in 2015. Consideration [24] The Appellant was successful in appealing the Respondent's decision to the Commission. As one of a number of orders outlined in the appeal decision, the Commission as currently constituted ordered that ''the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.''4 This was a common order used in the Commission in circumstances where costs follow the event. [25] A number of months after the appeal decision, President Davis heard and determined the matter in QNMU. In QNMU, President Davis 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. 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''. 4 Adcock v Worker's Compensation Regulator [2021] QIRC 227. -- 6 of 11 -- 7 [26] QNMU also confirms that costs ordinarily follow the event, whilst noting that discretion exists for the Commission to make some other costs order.5 [27] The Respondent has not submitted that costs should not follow the event in this matter, and I can see no reason that a costs order in favour of the Appellant should not be made. [28] The general practice of the Commission prior to the decision in QNMU had been to make orders for the 'costs of the appeal' in favour of the successful party in matters under the WCR Act. However, the decision in QNMU is authority that the discretion to award costs pursuant to s 558(3) of the WCR Act is limited to the costs of the hearing. [29] The Appellant submits that the costs of appeal rather than the costs of hearing should be obtainable on the basis that the appeal was determined and the relevant order made prior to the decision in QNMU. The Appellant submits that there was an express order allowing for costs incidental to the appeal and the Respondent is bound by that order, noting that the Respondent did not appeal the order relating to costs. [30] In QNMU, President Davis determined that the Commission does not have the power to order costs of the appeal, stating: [26] The power to award costs is not a common law power. It is one granted by statute. Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so. [31] The issue of orders made outside of power granted by statute was considered by the Full Bench in Local Government Association of Queensland v Queensland Services, Industrial Union of employees6 ('LGAQ'). The Full Bench referred to the case of Minister for Immigration and Multicultural Affairs v Bhardwaj ('Bhardwaj'),7 stating the following: [16] In that case, the Immigration Review Tribunal cancelled Mr Bhardwaj's student visa. At the time of making the decision, because of an administrative oversight by the Tribunal, it was not aware that Mr Bhardwaj had requested an adjournment of the hearing because of illness. [17] The High Court found that the initial failure to provide a hearing breached the procedural fairness requirements of the Migration Act 1958 (Cth), constituting a failure to properly exercise the decision-making power. In a joint judgment, Gaudron and Gummow JJ wrote: It is sometimes convenient to ask whether administrative decisions which involve reviewable error are either void or voidable, the former signifying that the decision is "ineffective for all purposes" and the latter that it is "valid and operative unless and until duly challenged but ... deemed to have been void ab initio." The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings. Thus, it was said by Lord Wilberforce in Calvin v Carr that: Their Lordships' opinion would be, if it became necessary to fix upon one or other of [the] expressions ['void' or 'voidable'], that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some 5 QNMU at [16]. 6 [2020] QIRC 068 7 (2002) 209 CLR 597. -- 7 of 11 -- 8 effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as "void", "voidable", "invalid", "vitiated" or, even, as "nullities". To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. [18] Their honours went on to observe: There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.8 [32] The Full Bench in LGAQ considered that Bhardwaj is authority for the proposition that until a decision in accordance with the statute had been made, there was no decision. [33] In LGAQ the Full Bench gave consideration to a number of other cases on the issue of jurisdictional error: [21] In the High Court case of Plaintiff S157/2002 v The Commonwealth of Australia, Gaudron, McHugh, Gummow, Kirby and Hayne JJ, referring to passages from the reasons of Bhardwaj wrote: This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".9 [22] More recently, in Hossain v Minister for Immigration and Border Protection, Kiefel CJ, Gageler and Keane JJ said: 8 Bhardwaj (n 6) 612-615 [45], [46], [51], [53] (citations omitted). 9 (2003) 211 CLR 476, 506 [76] citing Bhardwaj (n 6) 614-615 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646-647 [152] (Hayne J). -- 8 of 11 -- 9 Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void".10 [23] In Jadwan Pty Ltd v Secretary, Department of Health & Aged Care, Gray, Kenny and Downes JJ wrote: In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority: 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.'11 [24] In BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors, the court considered a submission that the provisions of the Building and Construction Industry Payments Act 2004 did not support a conclusion that an adjudicator's decision affected by jurisdictional error is necessarily of no legal effect.12 Muir J, (Holmes JA and A Lyons J agreeing) wrote: That proposition, with respect, may be accepted but, absent statutory provisions necessitating a contrary conclusion, the general principle identified in [Bhardwaj applies.13 [34] The Full Bench in LGAQ ultimately determined that absent statutory provisions necessitating a contrary conclusion, the general principle identified in Bhardwaj apply. Accordingly, a decision made outside jurisdiction is a decision in fact which is properly 10 (2018) 264 CLR 123, [23] (citations omitted). 11 (2003) 145 FCR 1, 16 [42] (citations omitted). 12 (2013) 1 Qd R 228, [61] citing Truenergy Austraia Pty Ltd v Minister for Industrial Relations (2005) 93 SASR 393, 413 [107]; Jackson v Purton [2011] TASSC 28, [60]–[61]; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, 16 [42]. 13 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (2013) 1 Qd R 228, [66]. -- 9 of 11 -- 10 to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". [35] Adopting the rationale of the Full Bench, the order made prior to the QNMU decision was made outside jurisdiction and consequently is not a decision at law. Costs [36] The Appellant was successful in its appeal before the Commission and, accordingly, the discretion to award costs has been enlivened pursuant to s 558(3) of the WCR Act. An award of costs is not opposed by the Respondent. [37] Pursuant to r 132(2) of the WCR Regulation the appropriate scale for solicitor's fees is schedule 2, part 2 scale C of the UCPR and for witness' fees and expenses, pt 3 of the Uniform Civil Procedure (Fees Regulation) 2019. [38] The Appellant's costs outlined in correspondence to the Respondent dated 8 November 202214 is as follows: Item Description Costs incl GST A Claim and Statement of Claim and service $1,552.00 B Trial preparation, up to and including settlement conference $1,947.00 C Balance of trial preparation, no counsel $1,847.00 D E Solicitor on hearing (a)Appearance without counsel on hearing – first day (b)Appearance without counsel on hearing – second day $1,670.00 $1,145.00 F Written submissions (12 hours) $3,379.20 G Consider written submissions Respondent (2 hours) $563.20 H Applicants written submissions in reply (5 hours) $1,408.00 I Instructions – (a)for disclosure, preparing list of documents and making inspection and copies of documents – • Allowance to party requesting disclosure • Allowance to party making disclosure $433.00 $796.60 14 Referred to in the Appellant's submission as Annexure AW1. -- 10 of 11 -- 11 Disbursements Item Particulars Amount incl GST J Return flight to Qld for worker $529.38 K Accommodation for worker $150.00 L Return flight to Qld for solicitor $529.38 M Accommodation for solicitor $150.00 N Dr Suyapto invoice $144.43 O Dr Suyapto invoice $576.95 P Dr Suyapto invoice $1,227.71 [39] In circumstances where the substantive matter did not involve complex issues or work warranting uplift of costs, the Appellant is awarded solicitor's costs as follows: (a) Item 9 (a) Solicitor appearance at hearing without counsel (first day) – $1,255.00; and (b) Item 9 (b) Solicitor appearance at hearing without counsel (second day) - $865.00 [40] The Appellant is entitled to costs for professional witness fees pursuant to s 132(2)(b) of the Regulation and s 25 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) in the amount of $95.70 for absence from their employment of a period of three hours or less. [41] The Appellant is entitled to costs for the professional fees for Dr Dion Suyapto's evidence at the hearing pursuant to s 27 of the Uniform Civil Procedure (Fees) Regulation 2019 (Qld) in the amount of $576.95. [42] There is no entitlement to costs associated with items outlined at A, B, C and I, as these items are costs of the appeal rather than costs of hearing. Similarly, there is no entitlement to travel expenses associated with the Appellant's claim and the costs of Dr Suyapto's reports as these are incidental to the appeal rather than the costs of hearing. [43] The difficulty with the Appellant's request for costs associated with the written submissions for the substantive appeal (F, G and H in table above) is that such costs are not contemplated by sch 2 pt 2 scale C of the UCPR. Accordingly, such an order cannot be made. Order [44] Having considered s 558(3) of the WCR Act and regulation 132 of the WCR Regulation 2014, I make the following order: The Respondent pay the Appellant's costs of the hearing fixed in the sum of $ 2,792.65. -- 11 of 11 --