Connolly v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 104

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Connolly and Connolly v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 104 PARTIES: Connolly, Trevor and Cheryl (Applicants) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2013/174 PROCEEDING: Application for Costs DELIVERED ON: 11 October 2016 HEARING DATE: 3 August 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Thompson ORDER: The Regulator is ordered to pay the Applicants an amount of $10,610.90 for costs relating to matter WC/2013/174 within 21 days of the release of this decision. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - APPLICATION FOR COSTS - Legislation - Regulator ordered to pay Applicants an amount of $10,610.90 for costs relating to matter WC/2013/174 within 21 days of the release of this decision. CASES: Workers' Compensation and Rehabilitation Act 2003, s 558 Workers' Compensation and Rehabilitation Regulation 2014, s 132 Uniform Civil Procedure Rules 1999 Uniform Civil Procedures (Fees) Regulation 2009 Industrial Relations Act 1999, s 335 Industrial Relations (Tribunals) Rules 2011, r 70 John Henry Edwards AND Q-COMP (WC/2012/52) - Decision - <http://www.qirc.qld.gov.au> -- 1 of 15 -- 2 APPEARANCES: Mr P. Sergeyev, of Colwell Wright Solicitors, for the Appellant. Mr S. Sapsford, Counsel directly instructed by Workers' Compensation Regulator, Respondent Decision (No. 2) [1] On 2 June 2016 an application was lodged on behalf of Trevor and Cheryl Connolly (Applicants) with the Industrial Registrar for a determination of costs in accordance with an Order made by the Commission on 22 January 2015. [2] The application was made as a consequence of the failure of the Workers' Compensation Regulator (Regulator) and the Applicants to reach an agreement as to the quantum of costs payable to the Applicants in matter WC/2013/174. [3] The application identified the quantum sought by the Applicants as $19,389.81 and included documentation in terms of an assessment of legal costs undertaken by Hartwell Legal Costs (dated 27 March 2015). [4] Further attached was correspondence generated by the Regulator (dated 27 October 2015) which confirmed an offer in terms of costs in the amount of $10,905.60. [5] On 29 January 2016 Solicitors acting on behalf of the Applicants rejected the proposal of the Regulator and put forward a slightly amended costs claim of $19,436.51. [6] A Directions Order was issued on 9 June 2016 requiring the parties to file and serve an outline of argument and supporting material by 4.00 pm on Wednesday 29 June 2016 with any outlines in reply and supporting material to be filed by 4.00 pm on Wednesday 20 July 2016. [7] The matter was set down for hearing at 10.00 am on 3 August 2016. Written Submissions Applicants [8] The Applicant's calculation of the costs payable were set out in their written submissions as follows: Item Description Amount 1 Instructions to sue $825.00 5(a) Preparation for trial $2,505.00 6(d) To conference with witnesses (6 hours) $1,086.00 6(e) To advise on evidence $201.00 6(f) On trial or hearing - first day $1,120.00 6(g) On each subsequent day (3 days) $2,250.00 8(a) Attendance of solicitor $2,250.00 11(a)(i) Instructions for disclosure - allowance to party requesting disclosure $284.00 -- 2 of 15 -- 3 11(a)(ii) Instructions for disclosure - allowance to party requesting disclosure $555.00 s 16 Lay witness attendance allowance $72.45 x 8 $579.60 s 17 Professional witness attendance allowance 1 day x 1 $230.30 Disbursements As per Hartwell Legal Costs assessment dated 27 March 2015 and not including witness allowance $323.61 Disbursements Injury Validation Group invoices as per Hartwell Legal Costs assessment dated 27 March 2015 $6,224.43 Disbursements Hartwell Legal Costs preparation of party and party assessment of costs $846.00 Disbursements Postage and Petties $109.87 TOTAL $19,389.81 [9] The submission went on to identify what the parties, by way of correspondence, had agreed were to be paid by the Regulator. They were itemised as follows: Item Description Amount 5(a) Preparation for trial $2,505.00 6(d) To conference with witnesses (6 hours) $1,086.00 6(e) To advise on evidence $201.00 6(f) On trial or hearing - first day $1,120.00 6(g) On each subsequent day (3 days) $2,250.00 11(a)(i) Instructions for disclosure - allowance to party requesting disclosure $284.00 11(a)(ii) Instructions for disclosure - allowance to party requesting disclosure $555.00 s 16 Lay witness attendance allowance $72.45 x 8 $579.60 s 17 Professional witness attendance allowance 1 day x 1 $230.30 The sections of the Applicant's claim that remained in dispute were: Item Description Amount 1 Instructions to sue $825.00 8(a) Attendance of solicitor $2,250.00 Disbursements As per Hartwell Legal Costs assessment dated 27 March 2015 and not including witness allowance $323.61 Disbursements Injury Validation Group invoices as per Hartwell Legal Costs assessment dated 27 March 2015 $6,224.43 Disbursements Hartwell Legal Costs preparation of party and party assessment of costs $846.00 Disbursements Postage and Petties $109.87 Legislation [10] The legislation relevant to the recovery of costs was identified as:  Section 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) which provides: "Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." -- 3 of 15 -- 4  Section 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (Regulation) which 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 3, part 2, scale E; and (b) costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2009, part 4…". [11] The submission argued that s 132 of the Regulations did not provide a limit on the amount that was recoverable with respect to outlays and disbursement with all costs able to be recovered in full. [12] There was a presumption at general law that costs follow the event with the onus in this case being on the Regulator to establish a basis for departure from such presumption. As the term "costs" is not defined in the Regulations, the term in context of orders for costs has an ordinary and accepted meaning which includes disbursements. [13] The submission went on to present a case for the matters that remained in dispute between the parties in respect of the costs payable:  Instructions to Sue: Whilst the Notice of Appeal was described as brief, prior to the filing there had been a requirement to obtain extensive legal advice in the preparation of the filing of the Notice of Appeal. The complexity of the matter was evident in the decision of the Commission. The legislation to allow for costs was described as "unambiguous" in allowing the costs of Instructions to Sue. It is a well-established principle of statutory interpretation that "a court cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of the Parliament arises".  Attendance of a Solicitor: The liability of the Regulator to pay the costs of the solicitor's attendance was not disputed, calculated at five days at $450.00 per day however the Regulator in correspondence (dated 27 October 2015) reduced their offer to $1,800.00. The appropriate amount remained at $2,250.00.  Disbursements: The amounts paid by the Applicants as disbursements and outlays were said to be recoverable.  Outlays: The Applicants reject argument advanced by the Regulator that outlays and disbursements are encompassed within Item 5(a) Preparation -- 4 of 15 -- 5 for Trial. Section 132(2)(a) of the Regulation specifically states that only "costs in relation to counsel's or solicitor's fees" are awarded under the relevant scale. This contrasts with s 132(2)(b) which makes provision for "costs in relation to witness fees and expenses". Section 132(2)(a) of the Regulation does not limit costs in relation to Counsel's or Solicitor's expenses or the Applicant's expenses.  Injury Validation Group (IVG): The evidence obtained by IVG prior to trial and the testimony given at trial by Lena Ogilvie (Ogilvie) played a crucial role in establishing credibility of the Regulator's key witness Kerry Jahnke (Jahnke). As a consequence of this evidence and because s 132 of the Regulation does not provide a limit on the amount that is recoverable with respect to outlays and disbursements. The IVG costs were recoverable in full.  Hartwell Legal Costs, Postage and Petties: Payment for outlays and disbursements are not limited under s 132 of the Regulations and all of these costs are therefore recoverable in full. Regulator [14] On 22 January 2015 the Commission in matter WC/2013/174 gave judgement for the Applicants against the Regulator following hearings on 24, 25, 26 February 2014 and 4, 5 August 2014. [15] The Applicants by way of correspondence (dated 12 October 2015) sought costs in the sum of $19,396.96 which prompted a response from the Regulator setting out what it considered to be appropriate costs pursuant to the Uniform Civil Procedure Rules 1999 (UCPR), Schedule 3, Part 2, Scale E as follows: Item Description Amount 5(a) Preparation for trial $2,505.00 6(d) Counsel's fees to conference with witnesses ($181.00 x 6 hrs) $1,086.00 6(e) Counsel's fees to advise on evidence $201.00 6(f) Counsel's fee on trial or hearing - first day $1,120.00 6(g) Counsel's fees on trial or hearing - Day 2, 4 and 5 $2,250.00 8(a) Attendance of solicitor ($450 x 5 days) $2,250.00 11(a)(i) Instructions for Disclosure - Allowance to party requesting disclosure $284.00 11(a)(ii) Instructions for Disclosure - Allowance to party requesting disclosure $555.00 Part A Sub-Total $10,251.00 s 16 Lay witness attendance allowance on 24 & 25 February 2014 ($72.45 x 8) $579.60 s 16 Lay witness attendance allowance on 4 August 2014 ($75.00 x 1) $75.00 Part B Sub-Total $654.60 Part A + Part B TOTAL $10,906.60 -- 5 of 15 -- 6 [16] Over a period of time the parties engaged by correspondence in respect of the following components of the costs subject to the Applicant's claim:  instructions to sue;  outlays;  conduct money to witnesses;  costs payable to IVG; and  costs of Hartwell Legal. Legislation [17] Section 558(3) of the Act provides as follows: "Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." [18] Section 132 of the Regulation relevantly provides as follows: "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 3, part 2, scale E; and (b) costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2009, part 4; and (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." [19] The Applicants made no allegations of the work involved, importance, difficulty or complexity of the matter to which the proceeding related and would attract the operation of s 132(3) of the Regulation. [20] The costs outlined by the Regulator were taken from and represented the costs allowed pursuant to UCPR, Schedule 3, Part 2, Scale E together with those allowable for witness attendances pursuant to the Uniform Civil Procedures (Fees) Regulation 2009, Part 4. [21] The only discretion available to the Commission is allowed for at s 132(3) and that section is not part of the application, therefore no power exists for this Commission to award costs beyond the amounts outlined by the Regulator (dated 27 October 2015). -- 6 of 15 -- 7 Specific Items Instructions to Sue [22] The Regulator submitted there was no entitlement to costs for this claim under the UCPR in circumstances where this item is designed to apply to the taking of instructions in order to institute proceedings by way of Claim and Statement of Claim which involves substantial work as opposed to the pro forma Notice of Appeal. [23] The Notice of Appeal in the present circumstances was said to be scant in relevant particulars and should not as such attract an award of costs for this item. The Regulator relied upon the matter of Edwards v Q-COMP1 which was an authority for the disallowance of this item in similar circumstances. Outlay Items for Hartwell Legal [24] These costs were said to be subsumed in the allowance provided for in legislation at Item 5(a) being preparation for trial. Additional costs for Ogilvie of IVG [25] The Applicant's allegation that the evidence of Ogilvie "played a crucial role in establishing credibility (sic) the Regulator's key witness, Kerry Jahnke" was disputed by the Regulator on the basis that the findings of the Commission in the substantive allegation had made no specific mention of such a crucial role regarding this evidence. The Commission's finding in relation to witness credibility was simply as follows at paragraph 236 of the Decision: "I have, in reaching my conclusions, preferred the evidence of Connolly to that of Jahnke who I found to have not been a witness of credit although that is not to say Connolly was necessarily an outstanding witness. There were issues around certain of his denials however it was safer to accept in all the circumstances the veracity of his evidence as opposed to Jahnke where the evidence conflicted." [26] In spite of correspondence generated by solicitors (dated 29 January 2016) acting for the Applicant's there had been no mention of any "crucial role" played by Ogilvie in the Applicant's submissions. [27] Further there was no evidence that established Ogilvie as a "professional witness". Conclusion [28] The legislature had seen fit to limit costs which may be awarded to a successful party in proceedings before the Industrial Magistrate or Industrial Commission. The only discretion allowed in relation to the quantum of costs is provided for by s 132(3) which is not relevant to the present application. [29] Accordingly there is no power for the Commission to award the Applicant's costs they seek. 1 John Henry Edwards AND Q-COMP (WC/2012/52) - Decision - <http://www.qirc.qld.gov.au> -- 7 of 15 -- 8 Orders [30] The Regulator seeks an order that this application for costs be dismissed and that costs incurred in defending this application be awarded to the Regulator. Applicants in Reply [31] The Applicant's took exception to the Regulator's submission regarding ss 132(2)(a) and 132(2)(b) in that only costs referred to in these sections are permitted to be awarded by the Commission because in their view s 132 does not state that is the case. Further the submissions around the "specific items" advanced by the Regulator were disputed with reliance again on the earlier submissions of the Applicants. Additionally there was dispute in terms of the Regulator's position on the Hartwell Legal Costs. [32] On the issue of Jahnke's evidence it was crucial to the outcome of the substantive matter regardless of whether it had been explicitly mentioned by the Commission or otherwise. Given that the evidence of Trevor Connolly was also criticised by the Commission, the Applicants submit that any evidence having effect on discrediting Jahnke as a witness was vitally important. [33] The Commission had at paragraphs 149, 158 and 185 of the substantive decision raised issues regarding Jahnke being a witness of credit and in particular in paragraph 149 stated: "Other issues that impacted adversely on her credit were identified as…  her attendance and involvement in the R-Lee Fashions launch". The reference to the fashion launch having been directly obtained by Ogilvie through IVG. [34] With respect to the definition of a "professional witness" it is the Uniform Civil Procedures (Fees) Regulation 2009 that defines such a person "as a witness, who attends court to give evidence of a professional nature". The word "professional" is not specifically defined and should be interpreted in accordance to the natural meaning of the word. [35] It had been established at the trial that Ogilvie was an investigator employed by IGV, therefore deriving her income from the employment and therefore in the case a "professional witness". [36] The Applicants submit that the Commission may award costs of the IVG and that those costs are recoverable in full. Regulator in Reply [37] On the primary submission of the Applicant's their position that "Rule 132 of WCRR does not provide a limit on the amount that is recoverable with respect to the outlays and disbursement, and it is submitted that such costs are recoverable in full" it was said -- 8 of 15 -- 9 to be not consistent with the wording of the Act and Regulation where the following is outlined:  costs of the hearing are in the appeal body's discretion except to the extent provided under a regulation; and  s 132 of the Regulation limits costs recoverable to those outlined in the UCPR, Schedule 3, Part 2, Scale E ("Scale E"). [38] Scale E has no provision for "outlays and disbursement" making the Applicant's submission contrary to the legislation. [39] The Regulator does not cavil with the general proposition outlined by the Applicants regarding the presumption at general law that costs follows the event and the onus is upon the Regulator to establish a basis for departure from such presumption. However these proceedings relate not to the award of costs but rather the general quantum of costs. [40] On the absence of a definition of the term "costs" not being defined in the regulations and relied upon by the Applicants, such a position is of no assistance to the Commission as the quantum of costs is specifically addressed at s 558 of the Act, s 132 of the Regulation and Scale E. [41] Finally the allowance of "Instructions to Sue" within Scale E is subject to work being performed which properly attracts costs under that item and as previously submitted no such work was performed by the Applicants. Hearing [42] The hearing on 3 August 2016 was for the purpose of allowing the parties the opportunity to provide final submissions in regards to the application before the Commission and in particular to orally address the content of the written submissions previously received by the Commission. Applicants [43] The Applicants relied upon the previous written submissions and identified that the main argument was whether the costs as they were provided under common law are restricted by legislation. [44] On the evidence of Ogilvie there had been mention in the Applicant's written response to her evidence having referred to either directly or indirectly and it remained the position of the Applicants that she was a specialist in her field and the surveillance conducted by her, along with her evidence went directly to the credit of the Regulator's main witness (Jahnke) which they believed was vital to the case. [45] Hartwell Legal Costs were also a disbursement and the argument remains that the Commission has a discretion to award such costs. -- 9 of 15 -- 10 [46] On the matter of witness costs whilst there had been some disagreement between the parties those differences no longer existed with the Regulator accepting agreement that those payments were:  $72.45 for eight lay witnesses; and  $230.30 for Ogilvie. Regulator [47] The position on the payment of Ogilvie's witness expenses was confirmed in accordance with the Applicant's understanding of the agreed position between the parties. The import of Ogilvie's evidence on the credit of Jahnke was said to be somewhat marginal and was not of such a cataclysmic nature to warrant the exorbitant expenses charged by IVG and now sought by the Applicant's in the form of $6,224.43. [48] In addressing the points still in contention between the parties the claim for "Instructions to Sue" was opposed on the basis that the work undertaken was nothing more than was necessary to properly invoke the jurisdiction of the Commission and in this particular case was only a scant outline of a Notice of Appeal. In the matter of Edwards v Q-COMP2 there had been a claim for the same item and whilst Vice President Linnane did not in her decision provide an analysis why the claim was disallowed, the claim was nevertheless disallowed. The Regulator remained opposed to this item being part of the costs order. [49] The matter of the Applicant's seeking payment for the attendance of a solicitor at the hearing for five days is really whether the payment should be for four or five days. Clearly on one of the days there had been virtually no evidence which had already been accepted as such in correspondence (dated 2 February 2016) generated by the Applicant's solicitors. [50] The final issue for consideration of the Commission is the interrelationship between s 558 of the Act and s 132 of the Regulation. The question that arises is whether s 132(2)(a) of the Regulation refers to all fees that may be recoverable or only to Counsel or Solicitor's fees. The Regulator maintained in enacting s 132 was clearly twofold being to firstly limit the total amount of fees recoverable by a successful party to proceedings referred to in s 558 of the Act to a referable scale, being Scale E of the UCPR. [51] The Regulator drew attention to s 563 of the Act that was to be contrasted with s 558 of the Act as it had a different mechanism for the calculation of costs and did so by reference to r 70 of the Industrial Relations (Tribunal) Rules 2011 (the Tribunal Rules). Section 563 of the Act states: "Costs of appeal to industrial court (1) On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause. 2 John Henry Edwards AND Q-COMP (WC/2012/52) - Decision - <http://www.qirc.qld.gov.au> -- 10 of 15 -- 11 (2) Costs of the order are to be in accordance with the Industrial Relations (Tribunals) Rules 2011, rule 70." Rule 70 of the Tribunal Rules states: "Costs (1) This rule applies if the court or commission makes an order for costs under section 335 of the Act. (2) The court or commission, in making the order, may have regard to - (a) for a proceeding before the commission - the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 3; or (b) for a proceeding before the full bench - the costs payable on the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999, schedule 2; or (c) for a proceeding before the court - the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or (d) any other relevant factor. (3) The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A." [52] Rule 70 of the Tribunal Rules may be read in conjunction with s 335 of the Industrial Relations Act 1999 (IR Act): "General power to award costs (1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied - (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement—the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings. (2) In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party." [53] The difference in the approach between the costs awarded pursuant to s 558 of the Act and costs awarded pursuant to s 563, it can be gleaned that the legislature intended those costs, in the consequent provision of s 132 of the Regulation. A second distinction of importance between both of these sections is that s 563 of the Act contains within itself the discretion that it may have regard through r 70 of the Tribunal Rules to the UCPR but it does not have what s 132(3) of the Regulation has is a discretion to increase an -- 11 of 15 -- 12 allowance by 1.5 times the amounts provided under s 132(3)(a) of the Regulation if complexities existed. [54] The Regulator contended that the fees payable are those in accordance with UCPR - Schedule 3, Part 2, Scale E. Applicants in Reply [55] The Applicants recorded their disagreement with the Regulators interpretation of s 132 of the Regulation regarding the intention of the legislature to limit costs. Conclusion [56] The matter for determination with regards to the application before the Commission is squarely in terms of the quantum of costs payable to the Applicants following the release of the decision in WC/2013/174 on 22 January 2015 and that is a position freely acknowledged in the course of these proceedings by the Regulator based upon legislative requirements that allow for the payment of costs to a successful party in matters relating to appeals against decisions of the Regulator. [57] The parties in the period between the release of the decision in WC/2013/174 on 22 January 2015 and 2 February 2016 engaged in discussions relating to the quantum of the costs payable however were unable to reach an accommodation of each other's position to the extent that at the time of the filing of the application to have costs determined by the Commission remained significantly in dispute over the quantum as was evident in these proceedings. [58] There was agreement reached in respect of certain items that as such were not required to be considered by the Commission. They were set out in the written submission of the Applicants in the following terms: Item Description Amount 5(a) Preparation for trial $2,505.00 6(d) To conference with witnesses (6 hours) $1,086.00 6(e) To advise on evidence $201.00 6(f) On trial or hearing - first day $1,120.00 6(g) On each subsequent day (3 days) $2,250.00 11(a)(i) Instructions for disclosure - allowance to party requesting disclosure $284.00 11(a)(ii) Instructions for disclosure - allowance to party requesting disclosure $555.00 s 16 Lay witness attendance allowance $72.45 x 8 $579.60 s 17 Professional witness attendance allowance 1 day x 1 $230.30 [59] The abovementioned amounts will feature, undisturbed, as part of the eventual order in terms of the costs payable. [60] The section of the application to which no agreement had been reached was identified in the Applicant's written submissions as follows: -- 12 of 15 -- 13 Item Description Amount 1 Instructions to sue $825.00 8(a) Attendance of solicitor $2,250.00 Disbursements As per Hartwell Legal Costs assessment dated 27 March 2015 and not including witness allowance $323.61 Disbursements Injury Validation Group invoices as per Hartwell Legal Costs assessment dated 27 March 2015 $6,224.43 Disbursements Hartwell Legal Costs preparation of party and party assessment of costs $846.00 Disbursements Postage and Petties $109.87 Legislation [61] The Commission in the determination of costs is bound by firstly s 558(3) of the Act which indicates that costs are at the discretion of the appeal body "except to the extent provided under a regulation". [62] The Regulations which operate in conjunction with the Act refer to the discretion of an Industrial Magistrate or Industrial Commission to award costs however if such costs are to be awarded then they must be in the following terms under s 132 of the Regulation: "(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 3, part 2, scale E; and (b) costs in relation to witnesses' fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2009, part 4; and (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." [63] In respect of this application it is the intention of the Commission in the exercise of the discretion regarding the costs payable to the Applicants to be firmly guided by and to adhere to the legislative provisions of the statute. [64] The items that remain in dispute between the parties are now addressed as follows: Instruction to Sue [65] The UCPR at Schedule 3, Part 2, Scale E allowed (as at 19 December 2014) costs for this item to be awarded in the amount of $825.00. On examination of the Notice of Appeal I accept the commentary advanced by the Regulator that the input of Solicitors acting for the Applicants was "scant" and they simply met the requirements to have such Notice of Appeal filed within the time constraints identified in the Act. There was certainly no level of complexity associated with undertaking such a task. -- 13 of 15 -- 14 [66] In Edwards v Q-COMP3 the Applicant had sought the payment of $800 for undertaking the "Instruction to Sue" and in the course of submissions the Respondent in that matter stated at paragraph 23 of the Decision: "…the instructions to sue item included preparation of a claim or statement of claim which clearly envisaged more substantial work than that required in this appeal. The Notice of Appeal was scant in relevant particulars and it was submitted that this claim should be substantially reduced…". [67] Vice President Linnane in determining nil payment in relation to the Instruction to Sue claim chose not to provide reasoning however it cannot be successfully argued that such claim was not rejected by the Vice President. [68] I am not satisfied that the Applicants had established reasonable grounds that would allow for a determination that any costs are payable for this item of the claim and accordingly the claim is rejected. Attendance of Solicitor [69] The Applicants claim for attendance at hearing was identified in monetary terms as $2,250.00 with the counter position argued by the Regulator that the costs of this item ought to be $1,800.00. [70] The Regulator opposed the Applicant's claim on the basis of the third day of hearing (26 February 2014) "occupied only 1 hour and 15 minutes of the day, due to your client's witness Ms Ogilvie being unable to be contacted that day". The Regulator submitted as "costs thrown away" on that day the payment of costs were not recoverable for Counsel. It follows that Solicitor's attendance fees for that day are not recoverable also. The amount recoverable for these attendance fees is found to be that of $1,800.00. Disbursements Hartwell Legal Costs - Assessment and Preparation [71] The Commission is lacking in jurisdiction to award costs sought by the Applicants for this particular cost therefor the claim is refused. IVG [72] The Applicants engaged IVG to carry out covert surveillance on Jahnke, a key witness for the Regulator and also the workers' compensation claimant. In the substantive hearing the Commission viewed a video recording of Jahnke at a fashion launch in North Queensland far from her place of residence in South-East Queensland as well as taking the evidence of Ogilvie as the person who conducted the surveillance. [73] There is no question that the abovementioned evidence did little to advance Jahnke's status as a witness of credit however it was not the "game breaker" in the decision by the Commission to prefer the evidence of Trevor Connolly as opposed to that of Jahnke. 3 John Henry Edwards AND Q-COMP (WC/2012/52) - Decision - <http://www.qirc.qld.gov.au> -- 14 of 15 -- 15 [74] The Applicants embarked upon a course regarding Jahnke's activities whilst absent from the workplace on workers' compensation and whilst they may have had reasonable grounds for questioning her conduct at the time there is on my understanding no item under Schedule 3, Part 2, Scale E of the UCPR that allows for this considerable expenditure to be recovered. The claim is refused. Postage and Petties [75] The Commission's understanding of this claim is that the item relates to costs associated with the engagement of Hartwell Legal Costs and is rejected for reasons the same as those documented to other items relating to Hartwell Legal Costs. [76] On consideration of the submissions and material before the Commission, I have determined the following costs be awarded to the Applicants: Item Description Amount 5(a) Preparation for trial $2,505.00 6(d) To conference with witnesses (6 hours) $1,086.00 6(e) To advise on evidence $201.00 6(f) On trial or hearing - first day $1,120.00 6(g) On each subsequent day (3 days) $2,250.00 8(a) Attendance of solicitor $1,800.00 11(a)(i) Instructions for disclosure - allowance to party requesting disclosure $284.00 11(a)(ii) Instructions for disclosure - allowance to party requesting disclosure $555.00 s 16 Lay witness attendance allowance $72.45 x 8 $579.60 s 17 Professional witness attendance allowance 1 day x 1 $230.30 TOTAL $10,610.90 [77] The Commission in consideration of all before the proceedings was unable to form a view that would warrant the enlivening of s 132(3) of the Regulation which allowed for a discretion to be exercised to allow for costs recoverable to be increased up to 1.5 times the amount provided for at s 132(2)(a) of the Regulation. [78] The Regulator is ordered to pay the Applicants an amount of $10,610.90 for costs relating to matter WC/2013/174 within 21 days of the release of this decision. [79] There is no order regarding costs for this application with each party to meet their own costs of and incidental to the application. [80] I order accordingly. -- 15 of 15 --