Firat v Workers' Compensation Regulator (No 2) [2024] QIRC 166

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Firat v Workers' Compensation Regulator (No 2) [2024] QIRC 166 PARTIES: Firat, Fatime (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2020/17 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 10 July 2024 DATE OF WRITTEN SUBMISSIONS: 28 June 2024 MEMBER: O'Connor VP ORDER: The Appellant pay the Respondent's costs of the hearing fixed in the amount of $10,450.05. CATCHWORDS: WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PERSONS ENTITLED TO COMPENSATION - COSTS - where appeal decision of Respondent confirmed - where the Commission has the statutory power to award costs - where costs of the hearing are in the discretion of the Commission - whether costs of the hearing should be ordered LEGISLATION: Uniform Civil Procedure (Fees) Regulation 2019 (Qld), part 3, s 24(b) -- 1 of 5 -- 2 CASES: Uniform Civil Procedure Rules 1999 (Qld), schedule 2, part 2 Workers' Compensation and Rehabilitation Act 2003 (Qld), s 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld), r 132 Firat v Workers' Compensation Regulator [2024] QIRC 137 Latoudis v Casey (1990) 170 CLR 534 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council(1998) 193 CLR 72 APPEARANCES: Costs application dealt with on the papers Reasons for Decision [1] On 29 May 2024 I published my reasons for decision in Firat v Workers' Compensation Regulator,1 which confirmed the review decision of the Workers' Compensation Regulator ('the Respondent'). The parties were ordered to file written submissions on the costs of the hearing by 4.00 pm on Friday 28 June 2024. [2] No submissions have been received from Ms Fatime Firat, ('the Appellant'). [3] The Respondent successfully defended the appeal and in so doing has incurred costs, including for counsel who appeared in the hearing of the appeal. In addition, the Respondent requested disclosure and made disclosure in accordance with directions issued by the Queensland Industrial Relations Commission ('the Commission') on 10 March 2020. [4] The Respondent seeks an order pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') for the following: (a) Item 8(f) Counsel's fees on hearing, first day - 4 April 2022 $1,545.00 (b) Item 8(g) Counsel's fees on each subsequent 1 [2024] QIRC 137. -- 2 of 5 -- 3 day of hearing - 2 or more hours, ($1,126.00 x 5 days) - 25, 26, 27 July 2022, 26 & 27 October 2022 - $5,630.00 (c) Item 10(b) on hearing with counsel, attendance of clerk ($281.10 x 1) - 4 April 2022 $ 281.10 (d) Item 10(b) on hearing with counsel, attendance of clerk ($306.75 x 5) - 25, 26, 27 July 2022, 26 & 27 October 2022 - $1,533.75 (e) Item 13(a)(i) allowance to party requesting disclosure $ 335.30 (f) Item 13(a)(ii) allowance to party making disclosure $ 605.60 Total Counsel's Fees $7,175.00 Total Clerk's Fees $1,814.85 Total Disclosure Allowances $ 940.90 [5] The Respondent also applies for the attendance allowance, provided for in Part 3, s 24(b) of the Uniform Civil Procedure (Fees) Regulation 2019, for its lay witness, in the amount of $86.55. Such an allowance is a cost that may be allowed.2 Section 24(b) - attendance allowance per lay witness per day ($86.55 x 6); Ali Aktas - $86.55; Oguz Erylimaz - $86.55; Hamdullah Yegenler - $86.55; Abdullah Cavas - $86.55; Ali Altinepe - $86.55; Suleyman Cangokce - $86.55. Total - $519.30 [6] The Respondent submits there is no reason why the Commission would not exercise its discretion to make an order for costs as set out below: Counsel's fees of hearing $7,175.00 Clerk's fees of hearing $1,814.85 Disclosure allowances $ 940.90 Lay witness fees $ 519.30 Total $10,450.05 [7] Costs before the Commission are calculated in accordance with s 558(3) of the WCR Act, Schedule 2 Scale of Costs - Magistrates Court, Part 2, Scale C of the Uniform Civil Procedure Rules 1999 (Qld) and r 132 of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) ('the WCR Regulation'). [8] Section 558(3) of the WCR Act relevantly provides: 558 Powers of appeal body … (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation. 2 Workers' Compensation and Rehabilitation Regulation 2014, s 132(2)(b). -- 3 of 5 -- 4 [9] Regulation 132 of the WCR Regulation provides: 132 Costs-proceeding before industrial magistrate or industrial commission (1) A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission. (2) If the magistrate or commission awards costs - (a) costs in relation to counsel’s or solicitor’s fees are as under the Uniform Civil Procedure Rules 1999, schedule 2, part 2, scale C; and (b) costs in relation to witnesses’ fees and expenses are as under the Uniform Civil Procedure (Fees) Regulation 2019, part 3; and (c) costs in relation to bailiff’s fees are as under the Uniform Civil Procedure (Fees) Regulation 2019, schedule 2, part 2. (3) The magistrate or commission may allow costs up to 1.5 times the amounts provided for under subsection (2)(a), in total or in relation to any item, if the magistrate or commission is satisfied the amounts are inadequate having regard to- (a) the work involved; or (b) the importance, difficulty or complexity of the matter to which the proceeding relates. [10] Section 558 of the WCR Act and r 132 of the WCR Regulation grant the Commission the statutory power to award costs. [11] The discretion to make an order for costs must be exercised judicially by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.3 [12] In Oshlack v Richmond River Council,4 McHugh J (Brennan CJ concurring) wrote: By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs.5 [13] The purpose of an award of costs was expressed by the High Court in Latoudis v Casey,6 where Mason CJ wrote: It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings … 7 3 Northern Territory v Sangare (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ). 4 (1998) 193 CLR 72. 5 Oshlack v Richmond River Council, (1998) 193 CLR 72, [66]. 6 Latoudis v Casey (1990) 170 CLR 534, 543. 7 Latoudis v Casey (1990) 170 CLR 534, 543, [13]. -- 4 of 5 -- 5 His Honour, the Chief Justice further stated: Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.8 McHugh J said: The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.9 [14] The decision to award costs of a proceeding heard by a member of the Commission is at the discretion of the Commission. [15] In the present case, the Respondent was successful. There is no reason why the Appellant should not pay the Respondent's costs. Further, no submissions have been received from the Appellant for consideration as ordered by the Commission in the decision released on 29 May 2024. Accordingly, the Commission orders as follows: Order The Appellant pay the Respondent's costs of the hearing fixed in the sum of $10,450.05. 8 Ibid. 9 Ibid 567, [3]. -- 5 of 5 --