Edwards v Q-COMP [2013] QIRC 17

CITATION: John Henry Edwards AND Q-COMP (WC/2012/52) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal John Henry Edwards AND Q-COMP (WC/2012/52) VICE PRESIDENT LINNANE 4 February 2013 DECISION [1] This is an application by the John Henry Edwards (Appellant) for an order for costs filed on 6 December 2012. The application for costs relates to an appeal by the Appellant in respect of a decision of the Review Unit of Q-COMP (Q-COMP) dated 13 February 2012. That decision confirmed a decision of WorkCover Queensland to reject the Appellant's application for compensation. [2] On 23 November 2012 Q-COMP initially notified the Appellant of its intention to concede his appeal. On 27 November 2012 Q-COMP advised the Appellant that it was now in a position to concede his appeal and, by consent, substitute the following order that: "(a) The appeal is allowed; (b) The decision of the Review Unit (Review No. 30754) in relation to WorkCover Queensland claim file S10CD889859 is set aside: (i) The Applicant has sustained an injury in accordance with s. 32 of the Workers' Compensation and Rehabilitation Act 2003 and s. 32(5) of the Act does not operate to exclude his psychological disorder from the definition of 'injury'; (ii) The injury is an Adjustment Disorder with Mixed Anxiety and Depressed Mood.". [3] The parties however were unable to agree on the amount of costs to be paid to the Appellant. The Appellant now seeks an order that Q-COMP pay the Appellant's costs in the sum of $7,563.75. On the other hand, Q-COMP contends that an award of costs of $1,909.00 would be an appropriate order. [4] The Appellant relied upon the Affidavit of Esetia Jane Cox, a member of the firm Connolly Suthers, Solicitors for the Appellant. In that Affidavit Ms Cox detailed the history of the Appellant's application for workers' compensation and the appeal currently before the Commission. Q-COMP relied upon the Affidavit of Kia Natalie Cameron, an Appeals Officer with Q-COMP which also outlined the history of the appeal. [5] The chronology of events in the appeal was outlined by Mr Gray, Counsel for Q-COMP, as follows: 15 February 2012 Q-COMP was served with a copy of the Notice of Appeal. 6 March 2012 Ms Cameron contacted Ms Cox from Connolly Suthers and asked her intentions for the callover for 7 March 2012. It was agreed that this matter would be listed for a s. 552A Conference. 26 March 2012 The matter was mentioned before Deputy President Swan and listed for a s. 552A Conference for 21 May 2012 at 9:30 a.m. 24 April 2012 Ms Cameron contacted Ms Cox and discussed postponing the conference to wait for Mr Edwards to be examined by Dr Likely and for his report to be provided. Ms Cox informed Ms Cameron that the appointment with Dr Likely was in early May 2012 and they should therefore be able to proceed with the s. 552A Conference as scheduled. 21 May 2012 Ms Cox sent email correspondence advising that her barrister would be appearing at the s. 552A Conference by telephone and that they were waiting for the report of Dr Likely. 21 May 2012 Shortly after the s. 552A Conference commenced, the report of Dr Michael Likely was received and the conference was adjourned for approximately ten minutes to consider this report. Dr Likely’s report dated 16 May 2012, indicated that Mr Edwards’ psychological injury developed from 20 December 2010. -- 1 of 7 -- 2 Q-COMP indicated that it would be carrying out some further investigations into the matter. 5 June 2012 The matter was set down for hearing from 7 to 10 January 2013. 12 July 2012 Q-COMP’s Counsel, Mr Gray and Ms Cameron conducted witness conferences with various employees of the Department of Community Safety (the Appellant's employer). 17 July 2012 Ms Cameron sent a letter to Connolly Suthers asking that they identify the stressors that contributed to Mr Edwards’ psychiatric or psychological disorder. 1 August 2012 Ms Cameron received a letter from Connolly Suthers requesting disclosure of various documents relating to the complaints made against Mr Edwards and the investigation relating to these complaints and attached a supplementary report from Dr Likely dated 25 June 2012. Dr Likely identified that Mr Edwards suffered an adjustment disorder in March 2011. Dr Likely formed the view that had the investigations been completed by March 2011, Mr Edwards would not have developed an adjustment disorder with mixed anxiety and depressed mood at all, or had he done so, this disorder would have remitted with the completion of the investigation. 10 August 2012 Ms Cameron sent an email to Connolly Suthers advising that Q-COMP was not in the possession of the requested documents and also asked for a response to the letter 17 July 2012, regarding the contributory stressors. 27 August 2012 Ms Cameron received a letter from Connolly Suthers advising that they were waiting for Counsel to finalise a response to Q-COMP’s request for the identification of the stressors and they anticipated receiving that advice “this week”. 14 September 2012 Ms Cameron received a phone call from Ms Cox, proposing a conference with Mr Gray and her barrister Justin Greggery on 20 September 2012 to discuss this matter. 20 September 2012 A conference was conducted and Mr Edwards’ legal representatives indicated that they were not in a position to discuss the contributory stressors until they had received various documents that they had requested from the Department of Community Safety, through a Notice to Produce. Other than these statements being made, there was virtually no benefit from the conference because the discussion about the contributory stressors could not proceed. 22 October 2012 Ms Cameron received a statement of stressors from Connolly Suthers. 31 October 2012 Ms Cameron requested a supplementary advice from Mr Gray. 14 November 2012 Ms Cameron received a further e-mail from Ms Cox advising of further steps taken by the employer and inviting Q-COMP to reconsider its position. 21 November 2012 Ms Cameron received supplementary advice from Mr Gray. 21 November 2012 Ms Cameron received an email from Ms Cox advising of the reinstatement of Mr Edwards' employment and requesting that Q-COMP advise of its position within 14 days. 23 November 2012 Ms Cameron prepared a proposal to management to concede the appeal, which was approved by Q-COMP management on the same day. 23 November 2012 Ms Cameron contacted Ms Cox and advised her that it was Q-COMP's intention to concede the appeal, however Ms Cameron would allow the employer until 10 December 2012 to advise of their position. 27 November 2012 Ms Cameron received e-mail correspondence from the employer's representative advising they did not wish to make an application to be heard. Ms Cameron sent email correspondence to Connolly Suthers advising that Q-COMP was now in a position to concede the appeal and Ms Cameron attached the proposed consent orders. 27 November 2012 Ms Cameron received an e-mail from Ms Cox setting out a schedule for costs. -- 2 of 7 -- 3 27 November 2012 Ms Cameron replied by e-mail to Ms Cox, advising her that Q-COMP would not be prepared to pay costs, noting that she had requested that the Appellant’s representatives identify the contributory stressors on 17 July 2012, however those particulars were not received until the letter from Connolly Suthers dated 22 October 2012. 7 December 2012 Q-COMP was served the application for costs. [6] This chronology was not disputed by the Appellant. The Appellant's appeal was scheduled to be heard on 7 - 10 January 2013. Appellant's Submission [7] Mr Greggery, Counsel for the Appellant, referred the Commission to s. 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (Act) which provides that costs of the hearing are in the Commission's discretion, except to the extent provided under a regulation. Thus the presumption at general law in respect of costs, namely that although costs are in the discretion of the Commission, as a general rule costs follow the event and it is for Q-COMP to establish a basis for departing from that rule: see Verhagen v Q-COMP1. The submission went only to provide that the presumption would only be displaced where there had been some sort of disentitling conduct on the part of the Appellant which was "calculated to occasion unnecessary expense": see Oshlack v Richmond River Council2 . [8] The submission then went to state that the open correspondence from Ms Cox to Ms Cameron dated 22 October 2012 which set out the manner in which the Appellant intended to conduct his appeal and that this correspondence persuaded Q-COMP to concede the appeal. This correspondence, it was submitted, went above and beyond what is ordinarily required of an Appellant and demonstrated a consistent "cards on the table" approach by the Appellant to the litigation. In the absence of this correspondence the matter would have proceeded to a four day hearing before the Commission. [9] It was further submitted that the documents produced by the Appellant's employer, the Department of Community Safety, were critical to the identification of the factual issues which demonstrated unreasonable management action. The material ultimately obtained via a Notice to Produce provided information to both parties that had not previously been disclosed by the employer. [10] It was the Appellant's submission that he had properly conducted his appeal and only incurred reasonable costs. Further the reasonable and co-operative approach of both parties saved significant time and cost to the Commission and the parties however this did not disentitle the Appellant to his costs. The Appellant further submitted that the volume of material and the potential factual complexity of the appeal warranted the uplifting of the standard fees by 50% in accordance with r. 113 of the Workers' Compensation and Rehabilitation Regulations 2003 (Regulations). [11] The Appellant 's claim for costs of and incidental to his appeal are itemised as follows: Item 1 Instructions to sue - QIRC Notice of appeal $800.00 Item 5 Preparing for trial $2,420.00 Item 6(a) Counsel settling QIRC Notice of appeal $175.00 Item 6(b) Counsel settling particulars (letter dated 22 October 2012) $100.00 Item 6(d) Counsel attendance at conference (x2 in Brisbane) Conference on 21 May 2012 - 1.5 hours via telephone $262.50 Item 6(e) Counsel provide opinion on witnesses and documents $195.00 Item 11(a)(i) Disclosure (employer Notice to produce) $275.00 QIRC copying fees $222.00 Item 11(a)(i) Disclosure (allowance to party requesting with Q Comp) $275.00 Item 11(a)(ii) Disclosure (allowance to party making with Q Comp) $540.00 $5,264.50 With the uplift due to complexity and the difficulty of the issues considered, the claim was presented as $5,264.50 x 1.5 being a claim for $7,896.75. 1 Verhagen v Q-COMP (2008) 189 QGIG 542 - Decision <http://www.qirc.qld.gov.au> 2 Oshlack v Richmond River Council (1998) 152 ALR 83 -- 3 of 7 -- 4 Q-COMP's Submission [12] Mr Gray, Counsel for Q-COMP, submitted that the power to award costs was contained in the Act with the quantum being regulated by the Regulations. Section 558(3) of the Act provides that "[c]osts of the hearing are in the appeal body's discretion, except to the extent provided under a regulation". Regulation 113 provides that costs of a proceeding before the Commission are in the discretion of the Commission however if the Commission were to allow costs then the costs are to be under the Uniform Civil Procedure Rules 1999, schedule 3, scale E or if the work involved or the importance, difficulty or complexity of the matter to which the proceedings relate warrants it then the Commission may allow costs in an amount up to 1.5 times the amount provided for under schedule 3 Scale E. [13] Q-COMP submitted that the fundamental tenet of statutory interpretation was that a provision for an Act should be interpreted in accordance with its express and clear language: see Pritchard v Q-COMP3. It was thus submitted that the authority of the Commission to order costs was only enlivened when there had been a "hearing". In this instance there had been no hearing. Q-COMP did however concede that, as a matter of common sense, it was not suggested that there must be a complete hearing before the power to award costs arises. Rather, it was submitted that the closer in time to the allocated hearing dates a matter is discontinued or resolved, a more persuasive argument existed for the exercise of a discretion to order costs. [14] On the other hand, Q-COMP submitted that the more distant the resolution of the appeal is achieved before the hearing date, the less likely it would be that the discretion to order costs would be exercised: see Ardent Leisure Limited v Q-COMP and Jasmine Rolfe 4 where Fisher C observed that in circumstances where Q-COMP conceded an appeal and there was an early discontinuance, the usual arrangement was that each party bore their own costs. [15] It was further submitted that when all relevant evidence was placed before Q-COMP it acted in a timely fashion and correctly conceded the appeal. The resolution of the appeal occurred as a result of a reasonable and co-operative approach adopted by both the Appellant and Q-COMP. The concession occurred well in advance of the allocated hearing dates of the appeal and therefore the usual practice should be adopted and no order for costs made against Q-COMP. [16] An alternative submission was made by Q-COMP i.e. that if the Commission determined that the usual practice should not be adopted then it was necessary to consider whether it was appropriate to exercise the discretion to order costs for the Appellant. It was submitted that the authorities relied upon by the Appellant should be treated with caution as they related t orders for costs made after full hearings and not the resolution of appeals prior to hearing. In this regard the Commission was referred to the decision of McGill J in Kilvington v Grigg & Ors (No. 2)5. [17] Given the provisions of s. 320 of the Industrial Relations Act 1999 it was submitted that an award of costs was completely discretionary, unfettered by any notion of disentitling conduct and was influenced by those factors outlined in s. 320 of the Industrial Relations Act 1999. In this regard the following factors were relevant: • the appeal is a hearing de novo from a decision of the Review Unit of Q-COMP which is a decision made on the papers and based on the evidence placed before the Review Unit. There was no power for the Review Unit to interview witnesses or otherwise properly test the reliability of the evidence put before it; • the appeal is not governed by rules requiring pleadings and therefore the issues do not become apparent until substantial steps have been taken in the proceeding; • there is no provision for offers of settlement in these appeals unlike provisions in the Uniform Civil Procedure Rules 1999. In these appeals the claim is either accepted or rejected and there is no middle ground promoting negotiations between the parties. The imposition of costs orders when timely concessions are made may discourage resolution of some claims resulting in matters being heard and determined by the Commission; • the Commission can take judicial notice of the large number of matters that are resolved prior to hearing where no order for costs are made. This is often the case when the matters resolve close to the allocated hearing dates; 3 Pritchard v Q-COMP (2006) 181 QGIG 643 4 Ardent Leisure Limited v Q-COMP and Jasmine Rolfe (WC/2010/112) - Decision <http://www.qirc.qld.gov.au> at para [20] and [25] 5 Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 -- 4 of 7 -- 5 • in so far as the Appellant's interests are concerned, the matters considered by Bloomfield DP in Panas v Q-COMP6 are relevant i.e.: ¾ the work undertaken by Solicitors for the Appellant was not wasted and could be utilised in the foreshadowed claim for damages; ¾ there was a blurring of the lines as to what costs truly relate to the prosecution of the appeal when regard is had to the e-mail from Ms Cox to Ms Cameron. The costs sought by the Appellant must not relate solely to the appeal but must include all steps taken with respect to the application for review to Q-COMP, the preliminary steps of the appeal which cannot be the subject of an award of costs and the anticipated claim for damages as well as the fees relating to responding to the employer's conduct; ¾ the Appellant now has a certain result which enables him the right to claim for damages; and ¾ substantial costs have been saved by the timely concession by Q-COMP. [18] Thus it was submitted, that in all of the circumstances the principles of equity and good conscience support an order that there be no order as to costs. [19] At an early stage Q-COMP requested the Appellant to identify the transactions or events that were to be the subject of the appeal. The Appellant was further asked to nominate those events that contributed to the development of the Appellant's psychiatric or psychological disorder. It was only as a result of the s. 552A Conference that one uncertainty (i.e. the argument the Appellant would make about the necessity for the employer to undertake the investigation once it had received the complains from the Appellant's co-workers) was identified. There was however no impediment to the Appellant identifying the stressors that he would rely upon in the appeal. Thus there was no justification for the delay in providing such information to Q-COMP only on 22 October 2012. [20] The submission provided by the Appellant in the correspondence dated 22 October 2012, whilst being of some assistance to Q-COMP, were essentially consistent with the submissions previously made on behalf of the Appellant at the Review stage. The only real matters of significance were the identification of documents that previously had not been available. The factors influencing Q-COMP to concede the appeal were as follows: • the comparison between the redated report given to the Appellant by the employer and the complete report; and • The fact that, as at 29 October 2012, the investigation by the employer still had not been completed. [21] These two aspects supported the Appellant's argument that his employer's actions had not been reasonable nor had the actions been taken in a reasonable way. This decision was reinforced by the fact that the employer had decided to reinstate the Appellant effective from 23 November 2012. [22] Q-COMP had acted in a timely fashion by conferring with relevant witnesses on 12 July 2012, requesting the identification of stressors at an early stage, and, upon receipt of the relevant evidence, taking appropriate steps to concede the appeal. [23] The following observations were made by Q-COMP in the event that the Commission determined to award costs to the Appellant: • 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; • the preparation for trial was claimed at the full amount and did not in any way reflect the considerable savings given the early and appropriate concession made by Q-COMP. Regard has not been made for work that was undertaken in the review process which then significantly reduced the amount of work required in the appeal. Most of the work done in the submission of 22 October 2012 had been performed during the review process; • there should be no allowance for Counsel settling the Notice of Appeal; 6 Panas v Q-COMP (WC/2010/78) - Decision <http://www.qirc.qld.gov.au> -- 5 of 7 -- 6 • the expenses associated with the attendance at the s. 552A Conference has traditionally not been allowed by the Commission; • the Registry copying fees for the documents obtained are not wasted as those documents can be used by the Appellant in not only a claim for damages, but also any claim relating to the ongoing conduct of his employer and his uncertain employment future; and • the claim for disclosure from the employer is excessive when the Appellant is already compensated by the allowance for making disclosure, which, as is apparent form the attached list of documents essentially only restates the documents that were relied upon at the review stage. The Appellant is adequately compensated by the allowance for completing disclose. [24] If costs are to be awarded to the Appellant then Q-COMP submit that an appropriate award of costs would be as follows: Item 1 Instructions to sue 0.00 Item 5(a) Preparation for trial $800.00 Item 6(a) Counsel settling QIRC Notice of appeal 0.00 Item 6(b) Conference settling particulars in letter dated 22 October 2012 $100.00 Item 6(d) Counsel's attendance at conferences 0.00 Item 6(e) Counsel's advice $195.00 Item 11(a)(i) Disclosure by employer 0.00 QIRC copying fees 0.00 Item 11(a) (i) Requesting Disclosure $245.00 (ii) Making Disclosure $485.00 Item 6(k) Counsel fee to hear deferred judgment $84.00 $1,909.00 Conclusion [25] It is apparent that Q-COMP sought from the Appellant's Solicitors, on 17 July 2012, the identification of the stressors said to have contributed to the Appellant's psychiatric or psychological disorder. The identification of those stressors was not provided until 22 October 2012. On 21 November 2012 the Appellant's Solicitors requested that Q-COMP reassess its position within 14 days given the advice that the Appellant had been reinstated in the employ of the Department of Community Safety. [26] Q-COMP immediately notified the Appellant's Solicitors of its intention to concede the appeal i.e. on 23 November 2012. Q-COMP was also obliged to notify the Department of Community Safety of its intention to concede the appeal and it gave the Department an opportunity to advise of its position by 10 December 2012. The Department of Community Safety advised of its position on 27 November 2012 and Q-COMP immediately notified the Appellant's Solicitors that it was conceding the appeal and attached a proposed consent order. The hearing of this appeal was scheduled to commence on 7 January 2013 i.e. some six plus weeks after receipt of Q-COMP's initial advice of its intention to concede the appeal. [27] It should also be noted that the Appellant's Solicitors in this appeal were also his Solicitors during the process whereby a Review of the WorkCover decision was undertaken by Q-COMP. Any costs involved in that process are to be borne by the Appellant. [28] Having considered the material before me and the submissions of the parties I have formed the view that the following costs should be awarded to the Appellant: Item 5(a) Preparation for trial $1,600.00 Item 6(b) Counsel settling particulars (letter 22 October 2012) $100.00 Item 6(e) Counsel opinion on witnesses and documents $195.00 Item 11(a) (i) Requesting disclosure $245.00 (ii) Making disclosure $485.00 QIRC copying fees $120.00 Item 6(k) Counsel fee for attending hearing on 10 January 2013 $84.00 Total $2,829.00 [29] I have not been able to identify any aspect of this appeal, whether it be in respect of the work involved or the importance, difficulty or complexity of the matter to which the appeal related, that would warrant a claim for the additional 50% of costs as provided for in regulation 113(2)(ii) of the Regulations. -- 6 of 7 -- 7 [30] I thus order that Q-COMP pay an amount of $2,829.00 to the Appellant in respect of the costs of this appeal within 21 days of the release of this decision. [31] Order accordingly. D.M. LINNANE, Vice President Hearing Details: 2012 June 5 2013 January 10 Released: 4 February 2013 Appearances: Mr J. Greggery of Counsel, instructed by Connolly Suthers Lawyers for the Appellant. Mr S. Gray of Counsel, directly instructed by Q-COMP. -- 7 of 7 --