Dalby v Swift Australia Pty Limited [2010] ICQ 20

CITATION: John Andrew Dalby AND Swift Australia Pty Limited (C/2010/1) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate John Andrew Dalby AND Swift Australia Pty Limited (C/2010/1) PRESIDENT HALL 31 May 2010 DECISION [1] This is an Appeal about a decision of an Industrial Magistrate delivered at Brisbane on 4 December 2009. [2] The proceeding before the Industrial Magistrate had been initiated by John Andrew Dalby. The proceeding was an appeal under s. 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). It was an appeal against a Review Decision of Q-COMP dated 7 August 2008. By that decision, Q-COMP had rejected Mr Dalby's claim for compensation for injuries said to have been sustained to his right shoulder, both elbows and both wrists over a period of time from 1 July 2001 to 15 June 2006. By a decision delivered on 21 October 2009, the Industrial Magistrate dismissed the appeal and confirmed the decision of Q-COMP. Q-COMP sought costs. An order about costs in favour of Q-COMP was not opposed and such an order was made. Swift Australia Pty Limited (Swift) also sought costs. Counsel for Mr Dalby did oppose the making of such an order. The issue was adjourned until written submissions had been taken. By the decision of 4 December 2009, the Industrial Magistrate granted Swift an order that the company's costs occurred in the appeal (in an amount to be agreed upon between the parties or as ordered by the Court) be paid by Mr Dalby. [3] Swift was not a party to the proceedings in the Industrial Magistrates Court. Swift was the employer. Swift was also a self-insurer. Neither the employer nor a self-insurer may be made a party to an appeal by a worker to an Industrial Magistrate pursuant to s. 549 of the Act. Swift participated in the appeal, to which the parties were Mr Dalby and Q-COMP, pursuant to a grant of leave to be heard. Materially, I note that Swift was not asked for an undertaking that it would not ask for costs if successful in the appeal: neither was any submission made on behalf of Mr Dalby that it should be a condition of any grant of leave to be heard that Swift might not seek costs, compare Australian Meat Holdings Pty Ltd v Janice Margaret Saunders and Review Unit Q-COMP1. [4] Some matters are common ground. It is accepted that the Industrial Magistrate's power to award costs is derived from s. 558(3) of the Act and s. 113 of the Workers' Compensation and Rehabilitation Regulation 2003. It is accepted that the power extends to the award of costs to a person (like Swift) granted leave to be heard, compare Australian Meat Holdings Pty Ltd v Kennedy and Q-COMP2. It is common ground that, whilst unfettered, the discretion must be exercised judicially. Importantly, whilst the Appellant continues to maintain that the learning about the award of costs to and against interveners may be drawn upon in what is said to be the analogous situation of a person granted leave to be heard, the Appellant now accepts, as the Industrial Magistrate concluded, that no universal principle may be derived from the authorities, compare University of Wollongong v Metwally at 7283. [5] The essence of the Appellant's submission is that the Industrial Magistrate did not exercise the discretion about costs judicially in that, the Industrial Magistrate failed to advert to the factors which weighed against the exercise of the discretion in favour of Swift, and failed to weigh the factors favouring the exercising of discretion against the factors which would lead to the rejection of Swift's application for costs. [6] It is convenient to reproduce the penultimate paragraph viz., paragraph [14] of the Industrial Magistrate's decision: "14. Matters which favour the exercise of a discretion in awarding costs to the successful intervener here are as follows:- 1. The intervener through its Counsel greatly assisted in the final determination of this matter in the cross examination conducted of the Appellant and in particular the production of the first aid records between 2000 and 2006 of the Appellant's attendance upon the nurse's station and the eliciting from the Appellant that on not one of those occasions (some 70) did he attend because of injury to his elbow, wrists or right shoulder. 1 Australian Meat Holdings Pty Ltd v Janice Margaret Saunders and Review Unit Q-COMP (2006) 182 QGIG 158 2 Australian Meat Holdings Pty Ltd v Angela Merilyn Kennedy and Q-COMP (2006) 181 QGIG 474 3 University of Wollongong v Metwally [1985] 1 NSWLR 722 at 728 -- 1 of 3 -- 2 2. Further the intervener's Counsel assisted in the eliciting of evidence from doctors called by the Appellant and the Respondent. 3. The intervener necessarily has incurred fees in protection of its own pecuniary interests which I have found to be a proper protection given that the appeal was dismissed. 4. The cross examination by the intervener and the calling of the witnesses did not unnecessarily prolong the hearing of this matter. It was all helpful in the ultimate resolution of it.". At no point did the Industrial Magistrate expressly refer to the factors which weighed against the grant of an order of costs. Those factors were: (a) that Swift was not a necessary party to the appeal and had sought leave to appear of its own volition; and (b) that grant of an order for costs in favour of Swift would expose Mr Dalby to a double burden in costs. [7] To put the Appellant's submissions in context, it is necessary to say something about the argument upon the matter of costs at first instance. The Appellant's first written submission was that the Industrial Magistrate did not have power to make an order in favour of Swift. After Swift replied to that submission, correctly identified the source of power and made submissions as to the proper exercise of that power, the Appellant filed further written submissions (to which Swift in due course replied). By those written submissions, the Appellant explicitly raised the argument that a worker assessing whether to appeal against a Review Decision would inevitably take account of the possibility that s/he might fail and be ordered to pay Q-COMP's costs. Such a worker would be disadvantaged to find that (additionally) s/he might have to pay his former employer's costs. Whilst the Industrial Magistrate did not expressly deal with that submission, it is difficult to accept that His Honour was not aware of it. Indeed, as Counsel for the Respondent submits, paragraph [2] of the Industrial Magistrate's reasons for decision suggests that His Honour was perfectly well aware of the argument: "On that date, by a consent, I ordered that the Appellant pay Q-COMP its costs in the matter in the sum of $4,608. I reserve my decision on the application of the intervener Swift Pty Ltd to be paid its costs by the Appellant to a date to be fixed.". As to the submission that Swift was not an essential party and participated on its own volition, I find it impossible to accept that an Industrial Magistrate, who was aware that Swift appeared pursuant to leave to be heard would think for a moment that Swift was a party. To say that Swift appeared pursuant to leave to be heard, recognises that Swift itself was not a party. As to the submission that subparagraphs (1), (2) and (4) of paragraph [14] of the Industrial Magistrate's reasons are repetitive, it seems to me that the matters were developed because of a submission (which failed) at first instance, that there was an agreement between Counsel for Swift and Counsel for Q-COMP as to the role that each would play and that Q-COMP might have played a greater role had Swift not been present. For fullness, I should say that I accept the Appellant's submission that the circumstance that a trial has not been unduly delayed and the circumstance that a Court derives assistance from the person granted leave to be heard, is not determinative of the question of whether costs should be awarded. [8] The award of costs is a quintessential exercise of discretion. The discretion is vested in the Industrial Magistrate: not in this Court. It is not the function of this Court to intervene because it would have taken a different course. Intervention is permissible only where some error has been made in exercising a discretion, compare House v The King at 504 to 505 per Dixon, Evatt and McTiernan JJ4 and Norbis v Norbis at 15 to 16 per Mason and Deane JJ5 . In a case such as this, where the Industrial Magistrate was required to make a value-judgement of a type which permits of reasonable differences of opinion, it would be wrong to allow an appeal because such a difference of opinion exists between the appellate court and the court which dealt with the matter at first instance, compare Attorney-General (Qld) v Yeo6 at [42] per Muir JA with whom McMurdo P and Chesterman JA agreed. [9] For the above reasons, I dismiss the Appeal. I reserve all questions as to costs. Dated 31 May 2010. D.R. HALL, President. Appearances: Mr D. Rangiah SC and with him Mr J. Wiltshire, instructed by Maurice Blackburn Lawyers, for the Appellant. Dr G. Cross instructed by AK Compensation Lawyers, for the 4 House v The King (1936) 55 CLR 499 5 Norbis v Norbis (1986) 65 ALR 12 6 Attorney-General (Qld) v Yeo [2010] QCA 69 -- 2 of 3 -- 3 Released: 31 May 2010 Respondent. -- 3 of 3 --