Appo v Q-COMP (No. 3) [2004] ICQ 48 (2004) 176 QGIG 586

586 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 August, 2004 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 563 – Costs of Appeal to Industrial Court Kelvin Noel Appo AND Q-COMP (No. 3) (No. C49 of 2003) PRESIDENT HALL 22 July 2004 DECISION By Orders made on 2 April 2004 this Court set aside the decision of the Industrial Magistrate made at Bundaberg on 15 May 2003 to uphold the decision of Q-COMP, made on 22 November 2002 to confirm the decision of WorkCover Queensland made on 3 October 2002 to refuse the appellant’s application for compensation. I also ordered that the application for compensation lodged by the appellant with WorkCover Queensland on or about 31 July 2002 to be accepted. All questions of costs were reserved. The successful appellant subsequently sought costs both of the appeal to this Court and of the proceedings in the Industrial Magistrate’s Court. As to the costs of the appeal to this Court, I have no power to grant the appellant the relief which he seeks. Section 563 of the Worker’s Compensation and Rehabilitation Act 2003 is not a limitation on a power to award costs otherwise vested in the Court but the grant of power to award costs. The terms of the section do not permit the award of costs to a successful applicant. Indeed, costs may be awarded against an unsuccessful appellant only if the appeal was made “vexatiously or without reasonable cause”. Even if the appellant’s submission that s. 563 is but a limitation on power was correct, the application for costs of the appeal would still fail. The Industrial Court of Queensland is a statutory tribunal. It has no inherent power. It has only such power as is vested in it by the Industrial Relations Act 1999 or by other legislation vesting the Court with jurisdiction. The only general power of the Court to award costs is that found in s. 335 of the Industrial Relations Act 1999. That section once again precludes a possibility of costs being awarded to a successful appellant and permits an order for costs against an unsuccessful appellant only where the appeal was made “vexatiously or without reasonable cause”. The costs of the proceedings in the Industrial Magistrate’s Court of Bundaberg is another matter. It is common ground that the Industrial Magistrate had full power to make such an Order and to make the Order on the basis that costs follow the event. On a successful appeal, this Court has full power to set aside a decision of an Industrial Magistrate and substitute another decision, compare s. 562(1)(c). In my view the appellant should have his costs of the proceedings in the Industrial Magistrate’s Court in which the appellant should have succeeded. Q- COMP was the other party to those proceedings. Q-COMP is the party against which the order should be made. I order that the order of the Industrial Magistrate that the appellant pay the costs of Q-COMP be set aside and that the appellant be awarded the costs of the hearing on 15 May 2003 on scale E of the Magistrate’s Court scale. Lest there be any difficulty in the recovery of costs, I reserve liberty to apply. Dated 22 July 2004. D.R. HALL, President. Released: 22 July 2004 Appearances: Mr A. McLean-Williams, instructed by Payne Butler Lang Solicitors, for the Appellant. Ms Ann-Maree Coulin for Q-COMP Mr J. McPherson of McCullough Robertson Lawyers for the Employer. -- 1 of 1 --