Dalby v Q-COMP (No 2) [2009] QMC 10

MAGISTRATES COURTS OF QUEENSLAND CITATION: Dalby v Q-COMP (No 2) [2009] QMC 10 PARTIES: JOHN ANDREW DALBY (appellant) v Q-COMP (respondent) SWIFT AUSTRALIA PTY LTD (Intervener) FILE NO/S: MAG168351/08(9) DIVISION: Industrial Magistrates Court PROCEEDING: Appeal against decision of QCOMP ORIGINATING COURT: Industrial Magistrates Court at Brisbane DELIVERED ON: 4 December 2009 DELIVERED AT: Brisbane HEARING DATE: 21 October 2009 MAGISTRATE: C J Callaghan ORDER: The Appellant pay Swift Australia Pty Ltd its costs incurred in this appeal in an amount to be agreed upon between the parties or as ordered by the Court. CATCHWORDS: INDUSTRIAL MAGISTRATES COURT – APPEAL AGAINST Q-COMP DECISION – PROCEDURE – COSTS – should Intervener receive costs COUNSEL: J Wiltshire for the appellant G Cross for the intervener SOLICITORS: Maurice Blackburn for the appellant A K Compensation Lawyers for the intervener [1] On 21 October 2009 I delivered judgment in this matter confirming the decision of Q-Comp of 7 August 2008 rejecting the claims of the Appellant. [2] On that date, by consent, I ordered that the Appellant pay Q-Comp its costs in the matter in the sum of $4,608.00. I reserved my decision on the application of the -- 1 of 5 -- 2 intervener Swift Australia Pty Ltd to be paid its costs by the Appellant to a date to be fixed. [3] Also on that date some argument was heard with the Appellant submitting that the Court had no power to order the Appellant pay the intervener’s costs. [4] I will deal with that matter firstly. In State of Queensland (Queensland Health) v Q- Comp and Coyne1 Hall P. said in relation to Section 506 of the “WorkCover Queensland Act 1999” (“the 1999 Act”) which is similar in its terms to Section 558 of the Workers Compensation and Rehabilitation Act 2003(“the 2003 Act”) the following:- “By s 506(3) costs of the hearing in the Industrial Magistrates Court are „in the Magistrate‟s discretion, except to the extent provided under a regulation‟. … Construing s 506(3) against the background of the decision of the High Court in Knight v F.P. Special Assets Ltd (1992) 174 CLR 178 it seems to me that sub-section (3) has to be read as authorising the Industrial Magistrate to make orders for costs in favour of and against persons who are not parties on the record. (The reference to a „party‟ at s 508(1)2, which deals with recovery of costs, is plainly a reference to a party to the costs order.) Consistently with the decision of the High Court the limitations on the award of costs in favour of or against a person who is not a party are to be found in an appropriate exercise of the discretion, not in consideration of power.” Plainly this Court has power to make an order that the Appellant pay a successful intervener its costs. [5] I then move to the second matter which needs to be considered, namely: the exercise of the discretion whether or not to award costs. [6] The decision of the High Court in O‟Toole v Charles David Pty Ltd (No 2)3 requiring that special circumstances be shown before making an award for costs against an intervener only relates to costs against an intervener not for an intervener. I do not read the decision of the New South Wales Court of Appeal in University of 1 [2003] QIC 134. 2 This would now be S 560(1) of the 2003 Act. -- 2 of 5 -- 3 Wollongong v Metwally4 as saying that an intervener must show “special circumstances” in order to obtain a costs order as that decision related to intervening Attorneys – General in matters concerning the validity of statutes and not interveners generally. Further the Court, after examining the variety of cases of that genre and the variety of costs orders made said, “…No universal principle can be derived.” [7] Section 558(3) of the 2003 Act provides that “Costs of the hearing are in the appeal body‟s discretion, except to the extent provided under a regulation.” Section 113 of the “Workers Compensation and Rehabilitation Regulation 2003” provides “The costs of a proceeding before an industrial magistrate or the industrial commission are in the discretion of the magistrate or commission”. In other words there is no restriction to the discretion which resides to award costs. The discretion of course must be exercised judicially. [8] Upon reading the cases such as Johnston v Cameron5 and Ruddock v Vadarlis6 I am of the view that the Court in exercising its discretion on whether or not to grant costs to a successful intervener, acting judicially, must consider the peculiarities of the particular matter. [9] In this case the intervener was rightly allowed to be heard in the appeal and was rightly given leave to participate in the appeal. I say rightly because not only was it the employer of the Appellant but also the self-insurer. It had a direct pecuniary interest in the outcome of the appeal and as such had a different interest to that of the Respondent Q-Comp. Q-Comp, whilst agitating for the same outcome, that is, to uphold its earlier decision, did not have the same interest as the intervener. [10] Hall P in Australia Meat Holdings Pty Limited v Kennedy and Q-Comp7 said ”…it would be wrong for Q-Comp to treat an employer, WorkCover or a licensed self- insurer as a client and/or to accept instructions from an employer, WorkCover or a licensed self-insurer. The extent of the collaboration with an employer, WorkCover or a licensed self-insurer in which Q-Comp may properly engage may be left to another day, but it is plain that Q-Comp has no duty to call witnesses at the request of an employer, WorkCover or a licensed self-insurer. Neither is Q-Comp required 3 (1991) 171 CLR 722 4 (1985) 1 NSWLR 722 5 [2002] FCAFC 301 6 [2001]FCA 1865 -- 3 of 5 -- 4 to develop a case considered to be appropriate by an employer, WorkCover or a licensed self-insurer.” [11] It is argued in paragraph 13 of the Appellant’s submissions “that an agreement was reached between the Respondent Q-Comp and the intervener that Counsel for the intervener would cross examine first and have primary conduct of the defence and that one should therefore not conclude that if the intervener had not been represented at the hearing then cross examination of the same or similar substance would have been conducted by Counsel for the Respondent.” [12] The allegation of that agreement is denied in paragraph 8 of the intervener’s submissions. Accordingly there is no evidence of any such agreement. I certainly do not infer it from a reading of the transcript or from my recollections of how the case was conducted. [13] I reject the second part of the argument contained in the Appellant’s paragraph 13 that “it would be entirely wrong to conclude that if the intervener had not been represented at the hearing then cross examination of the same or similar substance would not have been conducted by Counsel for the Respondent”. [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 any injuries to or any symptoms arising from any perceived injury to his elbow, wrists or right shoulder. 2. Further the intervener’s Counsel assisted in the eliciting of evidence from doctors called by the Appellant and the Respondent. 7 [2006] QIC 11 -- 4 of 5 -- 5 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. [15] For the above reasons I exercise my discretion in favour of an award of costs for the intervener against the Appellant. ORDER [16] I order that the Appellant pay Swift Australia Pty Ltd its costs incurred in this appeal in an amount to be agreed upon between the parties or as ordered by the Court. -- 5 of 5 --