Alavi-Moghaddam v Woolworths Limited [2012] QDC 138

DISTRICT COURT OF QUEENSLAND CITATION: Alavi-Moghaddam v Woolworths Limited [2012] QDC 138 PARTIES: ELHAN ALAVI-MOGHADDAM (Applicant) v WOOLWORTHS LTD (ACN 000 014 675) (Respondent) FILE NO/S: BD 5109/11 DIVISION: Civil PROCEEDING: Application for costs ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 8 June 2012 DELIVERED AT: Brisbane HEARING DATE: 17 May 2012 JUDGE: Farr SC DCJ ORDER: No order as to costs CATCHWORDS: PROCEDURE – COSTS – application for costs – whether the application was brought as a consequence of unreasonable delay by the respondent – where the primary consideration involves a determination of what is fair and just in the circumstances Earnshaw v Loy (No 2) [1959] VR 252, cited Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 279, 316, 318C COUNSEL: GJ Cross for the applicant JB Rolls for the respondent SOLICITORS: AK Compensation Lawyers for the applicant DLA Piper Australia for the respondent [1] The decision of the court in this application was delivered on 17 May 2012. The applicant now seeks her costs of the application. -- 1 of 3 -- 2 [2] The determination of costs is regulated by the provisions of ss 316(1) and 318C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) which state:- “316 Principles about orders as to costs (1) No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceeding. 318C Costs order under div 2 for an interlocutory application 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 terms of s 318C are clear. No costs order can be made unless the court is satisfied that the application has been brought because of unreasonable delay by one of the parties. The applicant submits that this application was brought as a consequence of unreasonable delay by the respondent. The respondent disputes that claim. [4] The applicant sought orders requiring the respondent to produce information, documentation and to allow an inspection of the respondent’s premises. [5] The application for an order to produce documentation was unsuccessful as I found that the respondent had already complied with the applicant’s request for such documentation at an earlier time. [6] Regarding the request for information, I ordered the respondent to provide the information requested by the applicant (pursuant to s 279(1)(b)) in correspondence dated 11 January 2012. Section 279(4) WCRA requires a party to respond to a s 279(1)(b) request within 21 business days. The respondent’s failure to comply with that provision is a relevant consideration (although not conclusive) to the issue as to whether or not there has been unreasonable delay. No satisfactory explanation has been offered for that failure. The respondent argued that it had previously responded to a request by the applicant in identical terms to the January request. A cursory examination of the two requests however, quickly revealed that each request sought different categories of information. I accept therefore that the respondent’s delay was unreasonable and that the application for an order to produce information was brought because of that delay. [7] In relation to the application to inspect the respondent’s premises, the respondent submitted that a legitimate disagreement existed over the applicant’s entitlement to conduct such an inspection i.e. this was a bona fide dispute as to whether an inspection was necessary under the rules and whether any such inspection ought to have occurred before the compulsory conference was held under WCRA. Whilst the respondent’s argument on this point was ultimately unsuccessful, it was nevertheless a reasonable argument supported by authority. It identified that there was a genuine dispute between the parties that required resolution by the court. In -- 2 of 3 -- 3 those circumstances, it could not be said that there had been “unreasonable delay” on the part of the respondent. [8] Also, whilst I note that the provision to the applicant of the photograph of the subject ladder and a document entitled “Safety Basics” on the day before the application was heard, could have been provided earlier, there is no evidence before this court to suggest that the application was brought because of the non-provision of those two documents. Conclusion [9] The fact that the application seeking an order for the production of documents was unsuccessful when considered in combination with there having been no unreasonable delay by the respondent in not agreeing to allow an inspection to occur is significant to the issue of costs. Determining whether or not to order costs requires the exercise of discretion.1 The primary consideration involves a determination of what is fair and just in the circumstances.2 In my view, whilst the criteria as prescribed by s 318C WCRA has been fulfilled in relation to the application for information, the counterbalancing considerations as identified above, are considerable. In my opinion, a fair and just outcome in these circumstances would be for each party to bear their own costs and that there should be no order as to costs. [10] For these reasons I make no order as to costs. 1 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 318C: “An order about costs for an interlocutory application may be made.” 2 Earnshaw v Loy (No 2) [1959] VR 252 at 253. -- 3 of 3 --