Ardent Leisure Limited v Q-COMP [2012] QIRC 458

CITATION: Ardent Leisure Limited AND Q-COMP AND Jasmine Rolfe (WC/2010/112) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 558 - powers of appeal body Ardent Leisure Limited AND Q-COMP AND Jasmine Rolfe (WC/2010/112) COMMISSIONER FISHER 15 November 2012 Appeal against decision of Review Unit, Q-COMP - Worker discontinued defence of appeal - Q-COMP conceded appeal - Applications for costs - Opposed by worker - Written submissions - Background to appeal - Applicant entitled to its costs for preparation and conferences with witnesses - Issue extent of liability of worker and first respondent - Adjournment applications - Whether an uplift in costs should be granted - Determined not of such magnitude as to attract uplift in costs - Orders made that worker pay costs. DECISION [1] On 2 October 2012, Counsel for the worker, Jasmine Rolfe, who had become a party to the appeal by Ardent Leisure Limited (Ardent) against the decision of the Review Unit, Q-COMP, (Q-COMP), advised the other two parties of her decision to discontinue her defence of the appeal. The advice was given approximately an hour before the hearing of the appeal was listed to commence. This advice was given in the context of Q-COMP having earlier made a decision to concede the appeal. [2] Both Q-COMP and Ardent made applications from the bar table seeking that Ms Rolfe pay their costs. Those applications were opposed by the worker's Counsel, Ms Perkiss. She asked to file written submissions because her instructing Solicitor, Michael Coughlan, who had detailed knowledge of the case was on leave. The Queensland Industrial Relations Commission (the Commission) acceded to this request and gave both Q-COMP and Ardent the opportunity to make written submissions in reply. In light of the submissions made on behalf of the Appellant the submissions in reply departed from the oral submissions made in support of the applications to the Commission both in terms of substance and quantum. [3] Without rehearsing the details of the submissions made by Q-COMP and Ardent at this point, the written submissions sought that costs be awarded for the dates the hearing was listed (2-4 October 2012) as well as for proceedings before the Vice President on 9 and 22 August 2012, where the worker sought adjournments of the hearing; the preparation of written submissions and other costs related to the preparation for and the conduct of the hearing. Ms Perkiss resisted any costs order being made against the Appellant alone. [4] To understand the submissions it is necessary to recount some background to the appeal. [5] In her Application for Compensation (as amended) Ms Rolfe stated that the injury to her left knee occurred on 10 October 2009. By decision dated 24 September 2010 Q-COMP confirmed the insurer's decision to accept the Application for Compensation. Ardent filed its appeal against the decision of Q-COMP on 18 October 2010. In November 2011 Q-COMP received from Ardent a copy of various records, including detailed internal records of Dreamworld, where Ms Rolfe was employed when she claimed to have sustained the injury, and a record from Dr D. Smith whom Ms Rolfe consulted on 9 October 2009. Dr Smith's record had not previously been disclosed to the insurer or Q-COMP. The record was of a left knee complaint. Q-COMP later became aware that the worker had lodged a Notice of Claim for Damages and received a copy of it on or about 11 January 2011. It revealed a different mechanism of injury to that specified in the Application for Compensation. [6] Further investigations were undertaken by Q-COMP including a conference with Ms Rolfe on 7 December 2011 where she was shown Dr Smith's record of 9 October 2009. Ms Rolfe apparently disputed Dr Smith's record claiming that her attendance on him that day related to a cramp in her right upper leg. Q-COMP also conducted a site inspection and held another conference with Ms Rolfe on 27 March 2012. Again Ms Rolfe disputed Dr Smith's record. These investigations led Q-COMP to the preliminary view that the appeal by Ardent should be conceded. [7] In an affidavit by the Q-COMP appeals officer who had carriage of the appeal, Leanne Hedges, it is stated that Mr Coughlan was informed on 14 June 2012 that Q-COMP had concerns about continuing to resist the appeal in view of the information which had come to light. An opportunity was given to Ms Rolfe to provide any further information before a final determination was made. [8] On 21 June 2012 Q-COMP forwarded to Mr Coughlan a copy of Dr Smith's record of 9 October 2009 and a spreadsheet prepared by Ardent with various documents relating to 10 October 2009 including duty rosters for -- 1 of 6 -- 2 Ms Rolfe; the breakdown log for a ride called the "Tower of Terror" and the Healthcare log for Dreamworld staff. Mr Coughlan was advised of Q-COMP's concern in regard to its prospects of successfully defending the appeal and that Ms Rolfe had been informed that she could make an application to be heard in the appeal. [9] According to the affidavit of Ms Hedges, Q-COMP advised Mr Coughlan of its intention to concede the appeal in July 2012. That position was adopted in light of the number of "incongruent versions in relation to the mechanism of injury", to use the terminology of Ardent, given by Ms Rolfe in various records and reports ,including Dr Smith's record, and as stated in the Application for Compensation and Notice of Claim for Damages. On 31 July 2012 Q-COMP advised Mr Coughlan that trial dates of 4 and 5 September 2012 had been set before the Vice President and suggested that Mr Coughlan liaise with the Commission about Ms Rolfe becoming involved in the appeal. [10] On 31 July 2012 Ms Rolfe made an application to be heard in the appeal. Vice President Linnane issued an order to that effect on 1 August 2012. [11] On 9 August 2012 Mr Coughlan sought an adjournment of the hearing. The request was opposed by both Q-COMP and Ardent. Vice President Linnane refused the request. The transcript does not disclose the reason for that decision. [12] A further application for an adjournment was heard on 22 August 2012. According to the affidavit of Mr Coughlan the request was made on the basis that advice had been received from Q-COMP on 16 August 2012 that it did not intend to call any witnesses or tender any documents except for those necessary to establish the jurisdiction of the Commission. This caused concern because no steps had been taken to call witnesses and was despite advice given by Q-COMP to the Vice President on 9 August 2012 that it was ready to proceed to trial on 4 and 5 September 2012. [13] Against the submissions of Q-COMP and Ardent, the request was granted albeit that only a one month adjournment was allowed. It seems that the request was granted on the basis that only a short delay was involved in the context of the length of time the appeal had been on foot and Counsel and doctors were available for the proposed new dates. At the time of granting the adjournment the Vice President reserved the question of costs of both adjournment applications. [14] It is Ardent's submission that Ms Rolfe's failure to disclose her attendance on Dr Smith was the genesis of the claim for compensation being accepted, the review decision and the delay in the conduct of the appeal. On 20 October 2011 the Solicitor acting for WorkCover Queensland (WorkCover) in respect of the damages claim sent a copy of Dr Smith's medical records to Ms Rolfe's Solicitors. The medical records were twice more provided to her Solicitors in November 2011. The submission from Ardent is that armed with this knowledge Ms Rolfe should never have sought to become a party to the appeal. [15] Various submissions have been made on behalf of the worker that Q-COMP did not act appropriately by not providing documents to the Solicitor acting for Ms Rolfe in a timely manner. Having read the affidavit of Ms Hedges and Mr Coughlan, the Commission is satisfied that Q-COMP acted appropriately. Q-COMP was not required to disclose documents to Ms Rolfe before she became a party to the appeal. As a witness she had no entitlement to disclosure. In any event the documents were discussed with her as part of Q-COMP's investigation to determine its position in relation to the appeal. Consideration and Findings [16] Although the submissions and other material provided have not been addressed in detail, they have nonetheless been considered in reaching this decision. [17] The submissions made on behalf of Ms Rolfe are that as there were two parties which formally opposed the appeal, both Q-COMP and Ms Rolfe should jointly share the costs in respect of preparation for trial, fees for Counsel and the attendance of a clerk on hearing. [18] Ardent have sought that Ms Rolfe pay these and other costs of the appeal such as instructions to sue, on site inspections and conferences with witnesses. Ardent argued that Ms Rolfe is liable for these costs because not only was she aware of her attendance on Dr Smith on 9 October 2009 but the medical records of Dr Smith were disclosed to her Solicitors on 20 October 2011 and 28 November 2011. Moreover, had this attendance been disclosed during the Application for Compensation and review processes then it is more than likely that the application would not have been accepted. [19] Q-COMP supported this submission and provided an affidavit from Lesley Shaw, the Review Officer of Q-COMP, who made the decision to confirm the decision of WorkCover. Ms Shaw deposes that although she was provided with a bundle of medical records in relation Ms Rolfe, the medical records of Dr Smith were not included. Had they been disclosed it was likely that she would have returned the matter to WorkCover with a -- 2 of 6 -- 3 direction for Ms Rolfe to undertake an independent medical assessment. Ms Shaw was unable to depose to the likely outcome of that course of action, however, she stated that she would not have disregarded Dr Smith's record of 9 October 2009 had she been made aware of it. In light of Ms Shaw's affidavit and the actions of Ms Rolfe, Q-COMP contended that there is a direct link between Ms Rolfe's "initial deceit at both WorkCover and Q-COMP's Review Unit stages and lodging of the Appeal". In the circumstances it was submitted that Ms Rolfe should be liable for all of the Appellant's costs. [20] Further, had it not been for Ms Rolfe joining as a party, the appeal would have been finalised in July 2012. In circumstances where there is an early discontinuance usually no order is made as to costs. However, this stage was not reached because Ms Rolfe joined as a party to the appeal. Once that occurred and had the appeal proceeded to trial it is likely that Ardent would have been successful and Ms Rolfe liable for its costs. Q-COMP said it would have also sought costs from Ms Rolfe given it had been put to substantial work and costs. Moreover, for the reasons given in the preceding paragraph, had Ms Rolfe disclosed the attendance on Dr Smith during the application and review processes it is unlikely that an appeal would have been lodged. [21] Were the Commission to find that it was liable for some of Ardent's costs then Q-COMP sought that no order be made at this stage to allow it the opportunity to reach agreement with Ardent. [22] Although Ardent has sought costs for Instructions to sue (Item 1) I am not satisfied that an entitlement exists. At that time the Notice of Appeal was a simple document requiring not much more than parties details to be inserted and the decision of the Review Unit to be attached. [23] Ardent is entitled however to its costs in respect of preparation for trial and conferences with witnesses. The issue is the extent of liability of each of Q-COMP and Ms Rolfe. [24] The appeal was instituted against a decision of Q-COMP which was made without all medical information having been disclosed. Given the affidavit of Ms Shaw, the Commission considers that Q-COMP was led into error in the decision it made and against which Ardent lodged its appeal. Like Ms Shaw, the Commission is uncertain what decision would have been made had the information been disclosed, however, the Commission is reasonably satisfied that further investigation would have been undertaken and there was a reasonable prospect of a different result ensuing. In those circumstances I am satisfied that Ms Rolfe has to bear some responsibility for the course of action which followed. [25] In respect of the preparation for trial I accept that Ardent would have done some preparation prior to Ms Rolfe becoming a party and some after Q-COMP had conceded the appeal. Had Q-COMP conceded the appeal then the usual costs arrangement is that each party bears its own costs. In those circumstances the Commission is not inclined to award costs against Q-COMP. With Ms Rolfe becoming a party to the appeal after Q-COMP made its decision the circumstances changed such that, regrettably, she is liable for part of the costs of preparation. I have apportioned the amount at 50%. Ms Rolfe is therefore required to pay costs in the amount of $1210.00 (Item 5(a)). [26] For the same reasons I find Ms Rolfe liable to pay costs of 50% of the cost of conferences with witnesses (Item 6(d)). The costs are in the amount of $437.50. [27] The Commission is satisfied that Ms Rolfe should pay costs to both Q-COMP and Ardent in respect of certain matters. A party to an appeal cannot reasonably consider that a decision to discontinue conveyed one hour before the start of a hearing will be accepted without penalty. Both Q-COMP and Ardent had retained Counsel for the three days the hearing was estimated to take. Had earlier notice been provided then it is possible that they could have been obtained other work. [28] It is not to the point that Q-COMP did not intend to take an active part in the appeal hearing. Q-COMP remains a party to the proceedings and may be called upon by the Commission to assist or otherwise become involved in the proceedings. As Q-COMP noted in its written submissions, the late notification of discontinuance required agreement by Q-COMP and, in the circumstances of this case, the issue of costs to be ventilated before the Commission. [29] It is argued on behalf of Ms Rolfe that only half a day was scheduled for the first day and thus costs for this day should be discounted. Schedule 3 Scale of costs-Magistrates Courts of the Uniform Civil Procedure Rules 1999 does not provide for proportionate amounts for Counsel's fees for the first day of a hearing. In the circumstances the Commission considers that the full amount of Scale E for item 6(f) should be awarded in respect of both Ardent and Q-COMP. [30] Given the late notice of the discontinuance, both Ardent and Q-COMP would have been liable for the costs of Counsel for the next two days of the hearing. Ardent has sought that the amount in item 6(g) be awarded whereas Q-COMP has submitted that item 6(h) is the appropriate item. Item 6(g) relates to Counsel's fees on each subsequent day of hearing if the matter occupies two or more hours of the day and the appearance is -- 3 of 6 -- 4 certified by the court. Item 6(h) concerns Counsel's fees on each subsequent day of hearing not included in item 6(g). The Commission considers that item 6(h) is the more appropriate item given the hearing did not continue on the either the second or third day. Accordingly, an order is made that Ms Rolfe pay costs in respect of both Counsel for the first day in accordance with item 6(f) of the Magistrates Court scale of $1085.00 and in accordance with item 6(h) of $370.00 per day for the second and third days. [31] Both Ardent and Q-COMP seek costs in respect of their instructors. Although Q-COMP does not have instructing Solicitors, a Q-COMP appeals officer attends the hearing and acts as an instructor to Q-COMP's Counsel. Q-COMP rightfully concedes that the appeals officer would have been usefully engaged on the subsequent days and no claim for costs for the second and third days was made. However, the Commission considers that as the appeals officer was in attendance for only a short time, costs should, and would ordinarily, not be awarded. [32] The position of Ardent is different. A clerk attended the hearing with Counsel and Ardent sought that the Commission certify that her attendance was necessary. The Commission is prepared to certify the clerk's costs for the first day of hearing but not for the other two. The Commission considers that the clerk, having been freed from the hearing before the Commission, would have had other useful, remunerative work to which she could return. Ms Rolfe is to pay costs in accordance with item 8(b), that is, in the amount of $275.00 to Ardent. [33] Costs have also been sought by Ardent in respect of conduct money for two medical witnesses and a lay witness as well as reimbursement of costs of serving documents. These witnesses were required to be called because of the worker's defence of the appeal. The Commission is satisfied that the worker should pay the conduct money of the two medical witnesses. One of those witnesses was scheduled to give evidence on the first day of the hearing. The second medical witness, Dr Smith, was due to give evidence on the second day. It was possibly too late for him to schedule appointments given that the hearing was adjourned at 3.45 p.m. on 2 October 2012. However, I am not satisfied that personal service upon Dr Smith was necessary. The lay witness is the Registered Nurse of the Healthcare station at Dreamworld. It is not clear on the material whether Ms Chalker was an employee of Dreamworld or whether the conduct money paid to her is otherwise recoverable. In the circumstances the Commission is only prepared to award the total amount of $325.00 as reimbursement of conduct money for the two medical witnesses. [34] Two site inspections were undertaken by Ardent - one at the request of Q-COMP undertaken on 27 March 2012 and the other at the request of Ms Rolfe after the appeal had been conceded. Ms Rolfe is liable to pay costs for the site inspection undertaken on her behalf in the amount of $350.00 in accordance with item 6(d). [35] Ardent has sought costs for Instructions for making disclosure (Item 11 (a)(ii)). Ardent was initially directed to make disclosure to Q-COMP before Ms Rolfe became a party. However, unlike Q-COMP, Ardent was directed in the Further Directions Order issued on 9 August 2011 to disclose all relevant documents under its possession and control and to provide copies although there was no requirement to provide copies that had been provided as part of the Review of appeal processes. [36] The Commission considers that Ardent is entitled to costs for this item, however I consider that the bulk of the work would have already been undertaken before Ms Rolfe became a party. Only a copy of the list of documents and copies of certain documents were required. In the circumstances the Commission has discounted the costs prescribed by Item 11(a)(ii) to $54.00. [37] Q-COMP has also sought costs for Instructions for making disclosure on the basis that a direction was issued by the Commission for documents to be disclosed. Perusal of the transcript of 9 August 2008 before the Vice President shows that Q-COMP offered to photocopy all of the material in its possession and make it available for collection by Ms Rolfe's Solicitor on 13 August 2012. In the result the Solicitors did not attend and Q-COMP arranged for it to be delivered to their offices. The Further Directions Order issued by the Vice President after the hearing of 9 August 2012 does not include a direction that Q-COMP disclose all the documents in its possession or under its control and which are relevant to a matter in issue. In the circumstances this item is refused. [38] Q-COMP has also sought costs for the preparation of written submissions in relation to costs. As mentioned, the Commission granted an adjournment so that Ms Perkiss could be properly instructed as to costs given the absence of the Solicitor who had carriage of the matter. At the time I expressed my surprise at the absence of the Solicitor in circumstances where the hearing dates had been set and ordinarily the appeal would have been heard. In my view the costs submissions ought to have been able to be properly argued on the day. By the adjournment both Q-COMP and Ardent were put to additional cost that ought to have been unnecessary. In the circumstances the Commission indicated that it would give consideration to any application for costs for the preparation of written submissions. -- 4 of 6 -- 5 [39] Counsel for Q-COMP has referred the Commission to a decision of Industrial Magistrate Cull in Hammond v Q-COMP1 where costs in the amount of one further day was found to be reasonably required to prepare written submissions at the end of a trial. Having since decided to award costs for three days for each Counsel and only part of one day was used for the trial I am of the view that this award of costs can be considered to compensate for the preparation of written submissions. Adjournment applications [40] Another issue is whether the costs of the hearings before the Vice President on 9 and 22 August 2012 should be granted. Both Q-COMP and Ardent seek their costs for these days even though one application made for an adjournment was successful and one was not. The Commission has perused the transcripts of the proceedings on those two days and has considered the submissions made. In the circumstances the Commission is disposed to not grant costs for either of these two hearings. The Commission certainly understands that Ardent and Q-COMP were put to cost in attending the hearings. The Commission also understands Ardent's submissions in respect of whether Ms Rolfe should have become a party to resist the appeal in view of the availability of medical and other information. Given the appeal had been on foot for some time and Ms Rolfe also had cause to file the Notice of Claim for Damages the Commission accepts that her Solicitors ought to have been across the material. Dr Smith's medical records had also been disclosed to Ms Rolfe's Solicitors in October and November 2011. There is certainly an argument that in light of this disclosure consideration should have been given about the utility of Ms Rolfe joining as a party and her prospects on appeal. However, it is a material change in circumstances when Q-COMP decides to not play an active part in proceedings, effectively leaving the affected worker with a decision as to whether to become a party to the proceedings. I accept that in the particular circumstances of this case given the proximity of the hearing dates to Q-COMP's decision and the preparation which is necessary for a hearing it was not unreasonable for Ms Rolfe's Solicitor to seek an adjournment. In any event one adjournment request was successful. Consideration of whether an uplift in costs should be granted [41] Ardent has also sought that, in accordance with s. 113(2)(a)(ii)(A) and (B) of the Workers' Compensation and Rehabilitation Regulation 2003, the Commission grant an uplift of 1.5 times the costs allowed. That section allows an uplift in costs of up to 1.5 times if, because of the work involved or the importance, difficulty or complexity of the matter to which the proceedings relate, the Commission considers the amount of remuneration is inadequate. It was submitted that the "importance" arose because of the failure to disclose and the appeal was unduly prolonged by the worker being joined as a party and making groundless contentions. [42] The Commission is not disposed to award an uplift in any amount. In my view, there is nothing in the work involved or concerning the importance of the matter which leads to the conclusion that the costs in the ordinary amount should be increased. The Commission accepts that the worker is deserving of criticism for not disclosing the attendance upon Dr Smith on 9 October 2009 and that the result of this omission was that the appeal was prolonged. However, these issues were dealt with in detail in making the costs order against Ms Rolfe. [43] The Commission also accepts that late notice of the decision was given and work had been done by the Ardent in preparation for the trial, however, once Ms Perkiss was seized of the matter, and given the limited time available, the decision was made to discontinue the defence of the appeal in relatively short order. That it came too late for the Ardent is regrettable but it is not of such magnitude as to attract an uplift in costs. Conclusion [44] Although no submissions have been made by Ms Perkiss for the worker to be given time to pay, the Commission considers that some consideration should be made in this regard. I have gleaned from the material that Ms Rolfe would be unlikely to have substantial funds at her disposal. [45] The following Orders are made: 1. That Ms Rolfe pay total costs to Ardent Leisure Limited in the amount of $4476.50; 2. That Ms Rolfe pay $2238.25 to Ardent Leisure Limited within 28 days of the date of release of this decision and $2238.25 within 56 days of the date of release of this decision; 3. That Ms Rolfe pay total costs to Q-COMP in the amount of $1825.00; and 1 Hammond v Q-COMP Unreported, 1 August 2007. -- 5 of 6 -- 6 4. That Ms Rolfe pay to Q-COMP an amount of $912.50 within 28 days of the date of release of this decision and $912.50 within 56 days of the date of release of this decision. [46] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2012 2 October Submissions received: 2012 12 October (2nd Respondent) 19 October (Appellant) 22 October (1st Respondent) Released: 15 November 2012 Appearances: Mr D. Cormack, Counsel instructed by Moray & Agnew Solicitors for the Appellant. Mr F. Lippett, Counsel instructed by Ms L. Hedges, Q-COMP. Ms O. Perkiss, Counsel instructed by Colin Patino & Company, Lawyers for Jasmine Rolfe. -- 6 of 6 --