Deceased Estate of Barry James Willis v Workers' Compensation Regulator (No. 2) [2020] QIRC 94

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Deceased Estate of Barry James Willis v Workers' Compensation Regulator (No. 2) [2020] QIRC 094 PARTIES: Deceased Estate of Barry James Willis (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/189 PROCEEDING: Application in existing proceedings DELIVERED ON: 24 June 2020 MEMBER: Merrell DP HEARD AT: On the papers ORDER: The Appellant's application for costs is dismissed. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - death - whether claimant was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 - objection to notice requiring non-party production - application in existing proceedings to lift stay of notice of non-party production - stay lifted - application for costs by claimant's estate - application of r 64G(3) of the Industrial Relations (Tribunals) Rules 2011 - application for costs dismissed LEGISLATION: Industrial Relations Act 2016, s 541 Industrial Relations (Tribunals) Rules 2011, r 24, r 64A, r 64D and r 64G CASES: Deceased Estate of Barry James Willis v Workers' Compensation Regulator [2020] QIRC 077 -- 1 of 5 -- 2 Gambaro v Workers' Compensation Regulator [2017] ICQ 5 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Re JJT; ex parte Victorian Legal Aid [1998] HCA 44; (1998) 195 CLR 184 APPEARANCES: Mr P. O'Neill of Counsel directly instructed by Ms R. Jamieson of the Workers' Compensation Regulator Mr G. Beard of Brighthill Lawyers for the Deceased Estate of Barry James Willis Reasons for Decision Introduction [1] In this proceeding, by decision dated 29 May 2020,1 I ordered, pursuant to r 64G(2)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), that the stay of a notice of non-party production dated 13 December 2019 directed to the Director-General of the Department of Education be lifted. [2] That notice of non-party production was issued by the Workers' Compensation Regulator. It arose out of an appeal by the Estate of Mr Barry James Willis ('the Estate') against a review decision of the Regulator dated 14 October 2019. That review decision was that Mr Willis, who passed away on 25 May 2019 following him being injured at the premises of Brisbane Auto Recycling Pty Ltd, was not a worker within the meaning of the Workers' Compensation and Rehabilitation Act 2013 ('the Act'). The stay came about due to a notice of objection by Brisbane Auto Recycling Pty Ltd to the notice of non-party production. The Regulator applied to lift the stay ('the application'). [3] At the conclusion of my decision, I gave the parties and persons who appeared in the hearing of the application the opportunity to be heard as to costs. [4] The only party that is seeking costs is the Estate. The issue for my determination is whether the Regulator should be ordered to pay the Estate's costs of the application. The parties' submissions [5] The Estate, in its submissions filed on 15 June 2020, does not set out the statutory provision upon which it seeks costs. 1 Deceased Estate of Barry James Willis v Workers' Compensation Regulator [2020] QIRC 077 ('Willis No. 1'), [118]. -- 2 of 5 -- 3 [6] It submits, however, that: • it had no inclusion, knowledge or hand in the Regulator filing the notice of non-party production; • it stood blameless of and incidental to the application; and • the Regulator was the sole cause of the Estate's involvement and subsequent professional costs in the application. [7] It is on that basis, that the Estate seeks an order that the Regulator pay its costs of and incidental to the application '… thrown away with those costs to be reserved on the substantive proceedings.' [8] Rule 64G(3) of the Rules provides: (3) Unless the relevant industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application. [9] The Regulator submits that there was nothing presented by the Estate's submissions to displace the starting position provided for in r 64G(3) of the Rules. Further, the Regulator, in response to the Estate's submissions referred to above, submits that: • it is disingenuous for the Estate to submit that it (the Estate) had no hand in the Regulator filing the notice of non-party production in circumstances where the Estate's solicitor failed to supply copies of the relevant documents during disclosure and then provided information to the Regulator regarding the existence of the documents and their potential relevance to the substantive hearing; • it is incorrect to submit that the Regulator was the sole cause of the Estate's involvement in the application because, pursuant to r 64D of the Rules, the Regulator was required to give the Estate notice of the application and that it was then a matter of choice for the Estate as to whether it chose to be involved or not; and • the Estate has incurred costs as a consequence of its own decision to become involved in the application. [10] The Regulator goes further and submits that s 541 of the Industrial Relations Act 2016 is not a source of power to award costs because there is authority for the proposition that s 541 does not apply to an appeal under the Act. My determination [11] The evidence of Ms Ruth Moroney, Senior Appeals Officer of the Regulator, who has carriage of the Estate's appeal on behalf of the Regulator, was that the Estate's solicitors provided information to the Regulator that put the Regulator on notice of the existence -- 3 of 5 -- 4 of mobile telephones, which were in the possession of Workplace Health and Safety Queensland, and of some text messages, which may have had relevance to the appeal.2 [12] There was also an email from the solicitors for the Estate to Ms Moroney, sent on 11 December 2019, in which advice was provided that the Estate was the lawful owner of the mobile telephones and that the Estate consented to the Regulator recovering text messages located on the mobile telephones in the possession of Workplace Health and Safety Queensland.3 [13] A costs provision, such as r 64G(3) of the Rules, must be construed to achieve its identified purpose.4 A section empowering orders for costs will be construed in the context of any peculiarities of the legislation in which it appears.5 On the plain words used in r 64G(3) of the Rules, the purpose of that rule is that each 'party' to an application, to decide an objection to a notice of non-party disclosure, must bear the party's own costs of the application. [14] The relevant exception is where the Queensland Industrial Relations Commission exercises its discretion and orders otherwise. A grant of discretion to make an order for costs must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.6 [15] An application to lift a stay of a notice of non-party production may involve, as in the present appeal under the Act, participation by the party that issued the notice of non-party disclosure, the other party to the appeal, the person objecting to the notice of non-party disclosure and the non-party. [16] In the hearing of the application, the interests of the Regulator and that of the Estate were not inconsistent. Both wanted disclosure of the documents from the Director-General of the Department of Education as set out in the notice of non-party production.7 The Regulator's application to lift the stay of the objection to the notice of non-party production had to be served on the Estate.8 It was a matter for the Estate as to whether it took part in the application. The Estate subsequently supported the submissions of, and the relief sought by, the Regulator in the application.9 [17] Having regard to the evidence, it is not correct to submit that the Estate had 'no hand' in the Regulator issuing the notice of non-party production. One of the factors motivating the Regulator, in issuing the notice of non-party production to the Director-General of the Department of Education, was the information provided by the solicitors for the Estate to Ms Moroney.10 2 Exhibit 1, paras. 17-22 and 25-27. 3 Exhibit 1, para. 28. 4 Re JJT; ex parte Victorian Legal Aid [1998] HCA 44; (1998) 195 CLR 184, [41] (Kirby J). 5 Ibid. 6 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). 7 The submissions of the Workers' Compensation Regulator filed on 14 February 2020, para. 74 and the submissions of the Deceased Estate of Barry Willis filed on 3 March 2020, paras. 3-4. 8 The Industrial Relations (Tribunals) Rules 2011, r 24(1). 9 The submissions of the Deceased Estate of Barry Willis filed on 3 March 2020, para. 5. 10 Willis No. 1, [14]-[15]. -- 4 of 5 -- 5 [18] In addition, there was no conduct on the part of the Regulator that would give rise to any consideration of the Regulator having to pay the Estate's costs of the application. [19] The relevant facts do not compel any conclusion that to do substantial justice between the parties, the Regulator should pay the Estate's costs of the application. For this reason, the general position concerning the parties' costs of applications about objections to notices of non-party production, contained in r 64G(3) of the Rules, should not be displaced. [20] The Estate did not claim that the Regulator should pay its costs by the Commission exercising discretion under s 541(c) of the Industrial Relations Act 2016. In any event, it seems to me that s 541(c) of the Industrial Relations Act 2016 would not be a source of power to order that the Regulator pay the Estate's costs in the present case. This is because it is unlikely that an appeal under the Act would fall within the phrase 'industrial cause' as contained in s 541 of the Industrial Relations Act 2016.11 Conclusion [21] For the reasons given above, the Appellant's application for costs is dismissed. 11 Gambaro v Workers' Compensation Regulator [2017] ICQ 5, [6] (Martin J, President). -- 5 of 5 --