AEG Interstate Transport (Nominees) Pty Ltd v Q-COMP [2006] QIRC 128 (2006) 183 QGIG 790

[Extract from Queensland Government Industrial Gazette, dated 20 October, 2006, Vol. 183, No. 12, pages 790-792] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission AEG Interstate Transport (Nominees) Pty Ltd AND Q-Comp (WC/2006/39) COMMISSIONER ASBURY 11 October 2006 Appeal by employer under s. 550 Workers' Compensation and Rehabilitation Act 2003 - Adjournment sought by Q- Comp to enable unrepresented injured worker to decide whether to be a party - Adjournment granted - No prejudice to positions of parties to appeal - Weight given to potential prejudice to unrepresented injured worker - Application by employer party for costs thrown away as a result of adjournment - Application for costs thrown away refused in circumstances where there was no default by either party - Costs may be pursued following hearing of appeal. DECISION 1. Overview By notice filed with the Industrial Registrar on 5 June 2006, AEG Interstate Transport (Nominees) Pty Ltd, appealed under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) against a decision of the Q-Comp Review Unit dated 8 May 2006. In that decision, the Q-Comp Review Unit confirmed a decision of WorkCover that an injured worker, Peter Anthony Athanitis, employed by AEG Interstate Transport (Nominees) Pty Ltd, did not have an entitlement to compensation in Queensland. The basis of the decision was that the injured worker was usually based in the State of New South Wales. The appeal was listed for hearing before the Commission as presently constituted, on 19 September 2006. At the commencement of the hearing, Mr Rashleigh for Q-Comp sought an adjournment, submitting that the injured worker, Mr Athanitis, should be given an opportunity to seek legal advice in relation to whether he wished to make an application to be made a party to the present appeal. 2. Facts Relevant to the Application for Adjournment The background to this appeal relevant to the application for an adjournment is as follows. As a result of the refusal by WorkCover to accept Mr Athanitis' claim for compensation, he made a claim under legislation in New South Wales which provides a liability and indemnity scheme for uninsured workers. That claim was accepted and Mr Athanitis received benefits from that fund for medical expenses associated with his injury. AEG Interstate Transport (Nominees) Pty Ltd continued to pay his wages. AEG Interstate Transport (Nominees) Pty Ltd subsequently received a notice issued on 5 September 2006, requiring it to reimburse the New South Wales workers' compensation authority for amounts paid by it to Mr Athanitis under the liability and indemnity scheme. The New South Wales legislation provides that a person on whom such a notice has been served, may apply to the New South Wales Commission for a determination as to liability for the payment sought by the notice. There is no right of review until such notice has been received. AEG Interstate Transport (Nominees) Pty Ltd intends to seek a review in New South Wales in relation to the notice. Section 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) provides that compensation is only payable in relation to employment which is connected with the State of Queensland, and goes on to stipulate how such a connection may be found. Section 114 provides for the determination of a court in another State, about a workers connection with that other State, to be recognised for the purposes of s. 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), as the State to which the worker's employment is connected. Section 114 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) has operated, by virtue of the predecessor to that Act, since 2002. A corresponding provision did not come into effect in the New South Wales workers' compensation legislation until 31 January 2006. As a result, when Mr Athanitis sustained his injury in July 2005, there was no provision requiring a decision of a Queensland court under the Workers' Compensation and Rehabilitation Act 2003 (Qld) about whether Mr Athanitis' employment was connected to the State of Queensland, to be recognised by a New South Wales Court which may be considering the same issue. It was submitted by Mr Rashleigh for Q-Comp, that the possible result of the present appeal to the Queensland Industrial Relations Commission and the review application being pursued by AEG Interstate Transport (Nominees) Pty Ltd in New South Wales, could be to deprive Mr Athanitis of any entitlement to compensation in either jurisdiction. It was also submitted that as Mr Athanitis was not a party to the current proceedings before the Queensland Industrial Relations Commission, he would be unable to appeal any outcome unfavourable to him. -- 1 of 3 -- 2 Mr Horneman-Wren for AEG Interstate Transport (Nominees) Pty Ltd opposed the application for an adjournment. Mr Horneman-Wren pointed to provisions of the New South Wales legislation to the effect that an employer could not seek a review of a decision that an injured worker was entitled to a benefit under the scheme for uninsured employees, until a notice had been served on that employer requiring repayment of amounts paid to the worker from the scheme. Such a notice had not been served upon AEG Interstate Transport (Nominees) Pty Ltd until 5 September 2006. The Company would at least reserve its rights in relation to seeking a review in New South Wales. However, the issues that would be determined in those proceedings related to the uninsured liability scheme in New South Wales, and would not answer the same question alive in the current appeal, because the legislation dealing with the cross-border scheme for recognition of decisions, was not operative at the relevant time. Mr Horneman-Wren submitted that while it was true that Mr Athanitis was not a party to the current appeal, and that he could make application to be a party, an adjournment did not really offer a solution. The questions before the Commission as presently constituted, and any review body in New South Wales would still need to be determined. While AEG Interstate Transport (Nominees) Pty Ltd sought to challenge decisions in both Queensland and New South Wales, it did so consistently. The basis for the challenge in New South Wales was that Mr Athanitis did not have an entitlement under legislation in that State. However, AEG Interstate Transport (Nominees) Pty Ltd did not seek to argue that Mr Athanitis did not have an entitlement to compensation in Queensland. Adjourning the current proceedings could have no purpose other than to allow Mr Athanitis to seek advice and to be independently represented. Further, AEG Interstate Transport (Nominees) Pty Ltd did not seek to assert that Mr Athanitis should fall between the two State schemes and have no entitlement to compensation. 3. Application by AEG Interstate Transport (Nominees) Pty Ltd for Costs It was submitted by Mr Horneman-Wren for AEG Interstate Transport (Nominees) Pty Ltd that if the Commission was minded to grant an adjournment to protect the interests of an unrepresented party, then it should be on the basis that his client should have its costs thrown away as a result. The Company was ready to proceed and had engaged counsel. Witnesses were present at the Commission, including Mr Athanitis, who had been transported from New South Wales at the expense of AEG Interstate Transport (Nominees) Pty Ltd. The issue giving rise to the adjournment application was not of the Company's making, and had been potentially there to be raised from the outset of the appeal. Mr Horneman-Wren also submitted that as regulator of the Workers' Compensation and Rehabilitation Act 2003 (Qld), it was understandable that Q-Comp would have an interest in ensuring that those whose rights may be affected are given every opportunity to be informed of what their rights might be. While AEG Interstate Transport (Nominees) Pty Ltd had not made Q-Comp aware that it was in the process of seeking a review in New South Wales prior to the morning of 19 September 2006, this was not relevant, as the issues giving rise to the application by Q-Comp for an adjournment had been ripe in any event, because the Company was not paying medical expenses in respect of Mr Athanitis. In relation to the application for costs thrown away, Mr Rashleigh for Q-Comp submitted that Q-Comp had known nothing of the claim by Mr Athanitis under the uninsured liability scheme in New South Wales or of the notice received by AEG Interstate Transport (Nominees) Pty Ltd under that scheme. Further, Q-Comp had not known that AEG Interstate Transport (Nominees) Pty Ltd was considering a review in relation to the notice. Q-Comp had discovered these matters on the date that the present appeal was to be heard, and had become aware at that point of the potential for Mr Athanitis' rights to be compromised. There was nothing prior to this date to alert Q-Comp to the situation. Mr Rashleigh submitted that the Commission had a discretion to award costs, but argued that in the current circumstances where neither party was at fault, the question of costs should, at best, be reserved to the trial. 4. Conclusions At the hearing on 19 September 2006 I decided to adjourn the proceedings. The basis of that decision was that an adjournment would have no impact on the substantive rights of the parties to the appeal. This situation could be contrasted with the situation of Mr Athanitis, whose substantive rights could be adversely affected if the adjournment was refused. Further, Mr Athanitis was to give evidence in the present appeal in circumstances where there were outstanding proceedings in the State of New South Wales relating to his entitlement to compensation. On balance, in all of the circumstances of this case, fairness required that an injured worker who was currently unrepresented, be given a reasonable opportunity to obtain independent legal advice in relation to his position. Mr Athanitis who was at the Commission on 19 September 2006 for the purposes of giving evidence, was present when the adjournment was granted. Mr Athanitis was informed that the purpose of the adjournment was to enable him to obtain independent legal advice about whether he wished to become a party to the appeal in WC/2006/39. Mr Athanitis was also informed that this matter would be heard on 23 October 2006 and that if he wished to become a party to the proceedings, both he and any representative he may engage, would be heard on that date. Arrangements were also made for a copy of the transcript of the proceedings on 19 September 2006 to be provided to Mr Athanitis. -- 2 of 3 -- 3 The decision in relation to the application by AEG Interstate Transport (Nominees) Pty Ltd for costs thrown away as a result of the adjournment sought by Q-Comp was reserved. My decision on this application is set out below. Regulation 13 of the Workers' Compensation and Rehabilitation Regulation 2003, provides that the costs of a proceeding before an Industrial Magistrate or the Commission are in the discretion of the Magistrate or the Commission. The discretion to award costs is not triggered by an unreasonable act or omission by a party as is the case under s. 335 of the Industrial Relations Act 1999. Costs thrown away generally refer to costs made useless when a default judgment is set aside or where work in respect of which costs have been incurred is useless as the result of an opponent's default. In the present case, there is no default on the part of either Q-Comp or AEG Interstate Transport (Nominees) Pty Ltd. Further, there has been no default on the part of the injured worker Mr Athanitis. If the issue giving rise to the adjournment was foreseeable, it was so for both parties to the present appeal. A party to an appeal under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), in circumstances where that party is seeking to ensure that an injured worker who is unrepresented, has an opportunity to seek legal advice in relation to his position, should not be subjected to an order for costs thrown away. In my view such an order would not be an appropriate exercise of the discretion under Regulation 13 of the Workers' Compensation and Rehabilitation Regulation 2003. The application by AEG Interstate Transport (Nominees) Pty Ltd for an order for costs thrown away as a result of the adjournment of its appeal on 19 September 2006 is refused. I order accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2006 19 September Released: 11 October 2006 Appearances: Mr A. Horneman-Wren of counsel instructed by Ms A. Engel of Bell Legal Group for the appellant. Mr P. Rashleigh directly instructed by Q-Comp. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --