Cedar v Q-COMP [2009] QIRC 3

CITATION: Robert Cedar v Q-COMP (WC/2008/69) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Robert Cedar AND Q-COMP (WC/2008/69) COMMISSIONER FISHER 11 November 2009 Appeal withdrawn at commencement of proceedings - Order for costs sought by respondent - Approval to withdraw appeal granted - Appeal dismissed - Costs ordered to be paid by appellant in instalments - Timetable determined. DECISION [1] The Appellant, Robert Cedar, filed an appeal on 25 August 2008 against the decision of the Review Unit, Q- COMP. The matter was listed on a number of dates in 2009 in an endeavour to have it heard and determined as expeditiously as possible. Delays in proceeding to hearing were encountered as a result of various difficulties experienced by Mr Cedar. [2] The appeal was listed for hearing in Townsville from 17 to 19 August 2009. The hearing could not proceed on the dates listed due to Mr Cedar suffering a family tragedy. [3] The appeal was relisted for hearing in Townsville from 4 to 6 November 2009. At the commencement of proceedings on 4 November 2009 Mr Cedar advised that he wished to withdraw his appeal. After ascertaining that Mr Cedar was aware of the decision he was making, Q-COMP then sought an order for costs. No costs were sought in respect of the scheduled August 2009 hearing in Townsville. The costs sought only related to the November 2009 proceedings. [4] Mr Sapsford, who appeared for Q-COMP, acknowledged that costs in a proceeding before the Industrial Commission are at the discretion of the Commission.1 However, it was the submission of Q-COMP that costs ought to be awarded in this matter due to the last minute withdrawal of the appeal. [5] An order for costs in the following amounts was sought in accordance with the Uniform Civil Procedure Rules 1999, Schedule 3, Scale E as provided by s. 113 of Workers' Compensation and Rehabilitation Regulation 2003: Item 5(a) Preparation for trial if counsel engaged $2,250.00 Item 6(d) Counsel's fees for conferences (5 hours x $160.00 per hour for 3 lay witnesses) $800.00 Item 6(f) On trial for the first day of Counsel $1,010.00 Item 8(b) Attendance of clerk with Counsel each day $177.50 (1/2 day only sought) Item 11(a)(ii) Instructions for disclosure - allowance for party $500.00 making disclosure Witness expenses2 (3 x$65.00) $195.00 [6] At the hearing the Commission was advised that the total amount of costs sought was $4,212.50. In preparing this decision the calculations were checked and found to be in error. Q-COMP sought half of the costs for Item 8(b). Scale E provides that the costs in the matter are $255.00. Half of that amount is $127.50. The correct total is $4,882.50. My Associate informed Q-COMP of the errors. Q-COMP advised that the costs being sought were the amended total of $4,882.50. [7] At the hearing Mr Cedar did not oppose an order for costs but sought time to pay. He asked that he not be required to pay any costs prior to Christmas. [8] The Commission informed the parties at the hearing that approval to withdraw the appeal was granted and that the appeal was dismissed. Further, the Commission would exercise its discretion and make an order for costs given the withdrawal of the appeal at such a late stage. However, the Commission wished to consider the matters raised by Mr Sapsford and give consideration to the period of time for Mr Cedar to pay the costs ordered. [9] The Commission notes that the costs sought would be significantly less than the costs actually incurred by Q- COMP. They also do not include costs which might ordinarily be awarded e.g. costs for instructions to defend. 1 Workers' Compensation and Rehabilitation Regulation 2003 s. 113. 2 Uniform Civil Procedure Rules (Fees) Regulation 2009 s. 16. -- 1 of 2 -- 2 Additionally, Q-COMP has not sought costs for any of the preceding hearings. However, in the circumstances of this case I am not minded to approve all of the costs sought for Item 6(d) or the costs for Item 11(a)(ii). I have allowed four hours of Counsel's fees for conferences. In accordance with the requirements of Schedule 3 I certify that the attendance of a clerk under Item 8(b) was reasonably required and have used the correct amount for ½ day as $127.50. Taking all of this into account I have decided to order Mr Cedar to pay Q-COMP's costs in the amount of $4,222.50. [10] I am aware from earlier proceedings of Mr Cedar's difficult financial situation and have decided to order that the costs be paid to Q-COMP in instalments. I have had to balance Mr Cedar's request that no moneys be paid prior to Christmas with the need to ensure that the costs are paid in a timely manner in order to discharge his obligation under this order. I have determined that the costs are to be paid by Mr Cedar to Q-COMP in accordance with the following timetable: 2 December 2009 $500.00 28 January 2010 $500.00 24 February 2010 $1,000.00 24 March 2010 $1,000.00 21 April 2010 $1,222.50 [11] Should Mr Cedar fail to make the required payment within the timeframe specified then the total amount owing to Q-COMP will become due and payable by Mr Cedar immediately. [12] The Order in respect to this Appeal accompanies the release of this decision. [13] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 18 February 28 May 30 June 17 July 17 August 4 November Released: 11 November 2009 Appearances: Mr R. Cedar on his own behalf. Mr S.P. Sapsford, Counsel instructed by Ms R. Jamieson on behalf of Q-COMP. -- 2 of 2 --