Dwyer v Framemaster (Qld) Pty Ltd (No 2) [2013] QDC 161

DISTRICT COURT OF QUEENSLAND CITATION: Dwyer v Framemaster (Qld) Pty Ltd (No 2) [2013] QDC 161 PARTIES: Applicant / Plaintiff: CRAIG ANTHONY DWYER AND Respondent / Defendant: FRAMEMASTER (QLD) (ABN 47 094 677 291) FILE NO/S: 4554/2011 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 18 July 2013 DELIVERED AT: Brisbane HEARING DATE: On the papers, final submissions received 16 July 2013. JUDGE: Kingham DCJ ORDER: 1. No order as to costs. CATCHWORDS: INSURANCE - WORKPLACE COMPENSATION – WORKCOVER - DUTY TO COOPERATE – COSTS - where the parties agree that no order for costs can be made under s 318C Workers Compensation and Rehabilitation Act 2003 (Qld) – whether s 318C applies. Workers Compensation Rehabilitation Act 2003 (Qld) s 318C. Lincoln v Qantas Airways Limited [2012] QDC 351, distinguished. COUNSEL: Dr. G.J. Cross for the Applicant. Mr. G.F. Crowe QC for the Respondent. SOLICITORS: Patino Lawyers for the Applicant. McCullough Robertson for the Respondent. -- 1 of 2 -- [1] On 5 July 2013, I delivered my reasons for refusing Mr Dwyer’s application for disclosure of documents pursuant to s279 of the Workers Compensation Rehabilitation Act 2003 (Qld) [‘WCRA’].1 Framemaster seeks its costs of and incidental to the application. [2] The costs provision for interlocutory applications in proceedings instituted pursuant to the WCRA is s318C. It provides: An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties. [3] The parties agree there has not been unreasonable delay. They disagree about whether s318C constrains the Court’s power to award costs in this case. [4] Although proceedings had been instituted before this application was made, senior counsel for Framemaster invited me to follow the reasoning adopted by his Honour Judge Samios in Lincoln v Qantas Airways Limited [2012] QDC 351. In that case, Judge Samios considered s318C did not prevent him from awarding costs, even though proceedings had been instituted, because the application he determined was not interlocutory.2 [5] I accept the submission made by counsel for Mr Dwyer that Lincoln is distinguishable. In Lincoln, the applicant had been granted leave to issue proceedings, which had commenced. There was a dispute about whether the pre-litigation proceedings had been complied with in relation to the injury specified in the Notice of Claim. Without the declaration made by his Honour, the proceedings could not continue. For that reason, Judge Samios considered the application for the declaration was not interlocutory. [6] This application, however, did not involve any consideration of compliance with pre-litigation procedures. I consider it falls comfortably within the meaning of interlocutory in the sense that it was made in the course of proceedings and did not finally conclude or dispose of the substantive rights of the parties.3 [7] I conclude, therefore, that s318C WCRA does apply to the application and I make no order as to costs. 1 Dwyer v Framemaster (Qld) Pty Ltd [2013] QDC 150. 2 Lincoln v Qantas Airways Limited [2012] QDC 351 [15]. 3 Butterworths Australian Legal Dictionary - definition of ‘interlocutory proceedings.’ -- 2 of 2 --