Baker v Prescare (Corinda) (No 2) [2014] QDC 179

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Prescare (Corinda) (No 2) [2014] QDC 179 PARTIES: JULIET BAKER (plaintiff) v PRESBYTERIAN CHURCH OF QUEENSLAND, TRADING AS PRESCARE (CORINDA) (ABN 85 338 603 114) (defendant) FILE NO: 1159/11 DIVISION: Civil PROCEEDING: Costs Judgment ORIGINATING COURT: District Court of Queensland DELIVERED ON: 1 September 2014 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Dorney QC, DCJ ORDER: 1. It is ordered that the plaintiff pay the defendant’s costs of the proceeding to be assessed on the standard basis from 16 March 2011. CATCHWORDS: Costs - mandated by statute - determined by form of legislation at time of relevant “offer”, not at judgment LEGISLATION CITED: Workers’ Compensation and Rehabilitation Act 2003, s 292(1), s 315, s 316, s 316(1), s 316(2)(b), s 668, s 668(1), s 668(2), s 668(3), s 678 (Reprint 5C) Workers’ Compensation and Rehabilitation Amendment Act 2010, s 28 Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013, s 40 CASES CITED: Mio Art P/L v Macequest P/L & Ors (No 2) [2013] QSC 271 Sheridan v Warrina Community Co-Operative Ltd & Anor [2005] 1 Qd R 187 COUNSEL: Self-representation by the plaintiff Mr A Mellick for the defendant SOLICITORS: Kaden Boriss Brisbane for the defendant -- 1 of 4 -- 2 Introduction [1] On 31 July 2014, after giving judgment for the defendant against the plaintiff, I ordered that both parties file, and serve, written submissions, if any, on costs by 4.00 pm on 8 August 2014. The only submissions on costs which were filed were those by the defendant. [2] I accept that, as those Submissions assert, a copy of such was served on the plaintiff who has been self-represented. Background to costs [3] It was not in dispute at trial that this proceeding was, and still is, regulated by the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”). But it is necessary to look at Reprint 5C of this legislation (reprinted as in force on 1 January 2011). This is because Chapter 5 of the WCRA, in so far as the costs provisions concerning proceedings are legislated for, had been amended with effect from 1 July 2010. It has, also, been amended since. Reprint 5C covers the time of the relevant offers of settlement. I will come to the effect of the 2010 amendment shortly. [4] The relevant pre-litigation steps mandated by Chapter 5 of the WCRA required, at all relevant times where a claim was made by such a claimant as the present plaintiff, if the holding of a compulsory conference did not lead to a settlement of the claim, an exchange of mandatory final offers. I accept, from the information provided in the Submissions of the defendant, that the relevant compulsory conference was held on 16 February 2011 and mandatory final offers were thereafter exchanged. I have been given copies of the plaintiff/claimant’s Mandatory Final Offer dated 16 February 2011, under the hand of her then solicitors, which offered, pursuant to s 292(1) of the WCRA, $100,000.00 (clear of the WorkCover refund). I have also been given a copy of the Mandatory Final Offer of the defendant/respondent (the “insurer”) dated 16 March 2011 in which the relevant offer was $60,000.00 [clear of the relevant refund (of $15,799.97)]. [5] This proceeding was started in the District Court by the Claim filed 11 April 2011. [6] Before turning to the legislation, it should also be noted that the Notices of Assessment issued under the WCRA assessed, at their highest, a Work Related Impairment (WRI) at 5.60%. That Notice of Assessment was dated 23 February 2009. The Notice of Assessment dated 15 February 2011 makes no assessment for a WRI for the injury stated to be a “left shoulder subacromial bursitis”. Relevant legislation [7] As noted in the defendant’s Submissions, but for the amendment effective from 1 July 2010, where, as here, a judgment were to be given against a plaintiff concerning a claim regulated by Chapter 5 of the WCRA and the plaintiff had a WRI of less than 20%, or no WRI, there could be no costs order. The case relied upon is Sheridan v Warrina Community Co-Operative Ltd & Anor [2005] 1 Qd R 187. -- 2 of 4 -- 3 Referring to the earlier legislation in indistinguishable terms, it was there held that it was clear that, on a reading of the provision as a whole, and giving each the words therein their ordinary natural meaning, prima facie the court had no power to order costs where (in a proceeding to which the section applied) the claim was dismissed: at [7] and [22], per Williams JA, with whom Helman J expressly agreed. [8] It should be noted that the relevant section here is s 316, applicable by reason of s 315. These provisions are under Division 2 of Part 12 (dealing with costs) of Chapter 5 (dealing with access to damages). [9] By s 316(1) of the WCRA, no order about costs, other than an order allowed under s 316, is to be made by the Court in the plaintiff’s proceeding. The relevant part, therefore, of s 316 is s 316(2)(b). This states that, if an insurer makes a final offer of settlement that is refused, the court “must” make the order about costs provided for. It then provides that, if the court later dismisses the worker’s claim, it be an order that the worker pay the insurer’s costs on the standard basis from the day of the final offer. [10] The last matter to be considered is why the amended WCRA applies to pre-litigation claims which occurred prior to the amendment date (but before s 315 was itself amended in 2013). The relevant transitional provision here is s 668, which was inserted with the amended s 316 and effected by s 28 of the Workers’ Compensation and Rehabilitation Amendment Act 2010. By s 668(1), s 668 “applies for the application of each provision as amended or inserted by a relevant amending section in relation to a claim made by a claimant and in existence immediately before the commencement of the relevant amending section”. By s 668(2), the provision as amended or inserted “has effect in relation to the claim” if, before the commencement of the relevant amending section, the claimant had not started proceedings in a court for the claim and the compulsory conference required under Part 6 of Chapter 5 had not been held. By s 668(3), the “relevant amending section” means, relevantly here, s 28 of the amending Act. [11] Hence, on the application of the transitional provision, since there was a claim made by the plaintiff, then as a pre-litigation claimant, and it was in existence immediately before 1 July 2010 (being made, and dated, 23 April 2010) and, at that time, the plaintiff, as claimant, had not started this proceeding and the relevant compulsory conference had not then been held, s 316 as amended by the relevant amending section, s 28, has effect. It is of no moment that s 315 was thereafter cast in different terms: see s 678 of WCRA inserted by s 40 of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013. Outcome [12] As a result of the analysis conducted of the applicability of the relevant amending legislation to the facts of this particular case, the only order that can be made as to costs is that permitted by s 316(2)(b) of the WCRA. Accordingly, the order that this Court must make is that the plaintiff pay the defendant’s costs assessed on the standard basis from 16 February 2011 (the date of the insurer’s final offer). That is on the obvious interpretation that the “final offer” last referred to in s 316(2)(b) is -- 3 of 4 -- 4 the “final offer” of the defendant/insurer. Although 16 March 2011 is prior to the “start” of the proceeding on 11 April 2011, a date still needs to be included in the order made because costs incurred in a proceeding include preparatory costs and could extend to costs incurred back before that date: see Mio Art P/L v Macequest P/L & Ors (No 2) [2013] QSC 271 at [7]-[8]; although I will follow the statutory mandate and refer to the “standard basis” (cf [12]). -- 4 of 4 --