Bishop v Woolworths Ltd (No. 2) [2008] QSC 169

SUPREME COURT OF QUEENSLAND CITATION: Bishop v Woolworths Ltd (No. 2) [2008] QSC 169 PARTIES: JACQUELINE KAY BISHOP (plaintiff) v WOOLWORTHS LIMITED ACN 000 014 675 (defendant) FILE NO: BS4747/06 DIVISION: Trial Division PROCEEDING: Determination of separate question DELIVERED ON: 7 August 2008 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: Written submissions JUDGE: Wilson J ORDER: 1. That contrary to the allegations as pleaded in paragraphs 12, 13 and 14 of the defence, on 26 April 2006 the plaintiff did not compromise her claim against the defendant for damages for personal injuries suffered on 12 October 2000 in the course of her employment. 2. The court dismisses the plaintiff’s application for costs. CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW - GENERALLY - where plaintiff made claim for damages for injury suffered at work with the defendant under the WorkCover Queensland Act 1996 – where the Act prescribes procedural steps of compulsory settlement conferences and exchange of offers – whether the plaintiff's claim for damages for personal injuries had been compromised as alleged PROCEDURE – COSTS – JURISDICTION – NO JURISDICTION AS TO SUBJECT MATTER – where the claim was regulated by the WorkCover Queensland Act 1996 – where the Court considers the application of s 325 for non- certificate injuries – whether the determination of this separate question is final or interlocutory in character COUNSEL: GJ Cross for the plaintiff RJ Douglas SC for the defendant -- 1 of 7 -- 2 SOLICITORS: Shine Lawyers for the plaintiff Blake Dawson for the defendant [1] Wilson J: The question whether the plaintiff's claim for damages for personal injuries had been compromised as alleged by the defendant was determined separately in advance of the trial of any other question or issue pursuant to r 483 of the Uniform Civil Procedure Rules (UCPR). The parties have now made written submissions on the form of the order and on costs. [2] Rule 485 of the UCPR provides - “485 Disposal of proceedings The court may, in relation to a decision of a question under this part, as the nature of the case requires — (a) dismiss the proceeding or the whole or part of a claim for relief in the proceeding; or (b) give judgment, including a declaratory judgment; or (c) make another order.” [3] The defendant failed to prove that the claim was compromised as alleged. In the premises, counsel agree that there should be a declaration in the following terms - that contrary to the allegations as pleaded in paragraphs 12, 13 and 14 of the defence, the plaintiff did not compromise her claim against the defendant on 26 April 2006 for damages for personal injuries suffered on 12 October 2000 in the course of her employment. It is appropriate to make a declaration along these lines. [4] The plaintiff seeks an order that the defendant pay her costs of and incidental to the defendant's application filed on 28 May 2007 for the separate determination of the question and of the "trial" of that question on 20 May 2008. In my view, the Court does not have power to make such an order for costs. [5] The claim was regulated by the WorkCover Queensland Act 1996.1 Chapter 5 Part 11 of that Act deals with costs - Division 1 deals with costs where the worker had a "certificate injury" and Division 2 where the worker had a "non-certificate injury”.2 In this case, the plaintiff's injury was a non-certificate injury, and accordingly s 325 must be considered. It provides - “Principles about orders as to costs 325.(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. 1 Reprint 4A. 2 These terms are defined in ss 42 and 43. For present purposes it is sufficient to note that a non- certificate injury is one resulting in a work related impairment of less than 20%. -- 2 of 7 -- 3 (2) If a party to the proceeding makes a written final offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for — (a) if the amount of damages awarded is equal to or more than the worker’s final offer—an order that WorkCover pay the worker’s party and party costs from the day of the final offer; (b) if the amount of damages awarded is equal to or less than the WorkCover’s final offer—an order that the worker pay WorkCover’s party and party costs from the day of the final offer. (3) If the award of damages is less than the claimant’s written final offer but more than WorkCover’s final offer, each party bears the party’s own costs. (4) An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties. (5) If an entity other than the worker’s employer or WorkCover is joined as a defendant in the proceeding, the court may make an order about costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case. (6) The court may make an order for costs against the worker’s employer or WorkCover under subsection (5) only if— (a) the order is in favour of the entity; and s 326 182 WorkCover Queensland Act 1996 s 328 (b) the worker’s employer or WorkCover joined the entity as a defendant.” [6] The determination took place "in the proceeding" within the meaning of subsection (1).3 The section codifies the only circumstances in which a costs order may be made "in a proceeding". There is no scope for recourse to the Court's general power to award costs pursuant to s 221 of the Supreme Court Act 1995. [7] The Court of Appeal (constituted by Williams JA, Helman and Dutney JJ) considered s 325 in Sheridan v Warrina Community Co-operative Ltd.4 There the plaintiff's claim for damages was dismissed, and the trial judge refused to make an 3 Contrast the determination of an appeal by the Court of Appeal: In Calvert v Mayne Nickless Ltd (No 2) it was held that s 325 does not apply to appeal proceedings because an appellate court does not award damages to claimants: [2006] 1 QdR 141 at 143. 4 [2005] 1 QdR 187. -- 3 of 7 -- 4 order for costs against her in favour of WorkCover Queensland. The Court of Appeal affirmed the decision, holding that the trial judge had had no power to make the costs order sought. Williams JA said - “[6] A number of observations must be made about the section. Firstly, the wording of subsection (1) is clear; there is no room for any ambiguity. Secondly, the section is not limited to directing the court as to how costs are to be awarded depending upon the relationship between the quantum of damages awarded by the court and the amount of each party’s final offer. In that regard the section must be contrasted with the provisions found in Division 1; there the provisions are limited to directing the court as to the approach to the awarding of costs depending upon the relativity between each party’s final offer and the amount of damages awarded by the court or where WorkCover denies liability (or admits liability of not more than 25 per cent) when WorkCover’s liability as established in the proceeding exceeds 75 per cent. The scope of operation of s 325 is highlighted by subsection (4) which deals with all interlocutory applications brought in the proceeding. Thirdly, subsection (5) expressly allows the court to make an order about the costs of a defendant to the proceeding other than the employer represented by WorkCover. The subsection makes it clear that the order about costs can either be in favour of or against that other defendant. It follows that s 325 is an all embracing provision as to costs and is much more restrictive than Division 1. It is also significant that there is no equivalent of s 321(4) found in Division 2; that subsection provides: ‘In any other case, the court may make an order about costs as it considers appropriate.’ [7] It is therefore clear that on a reading of s 325 as a whole, and giving each of the words therein their ordinary and natural meaning, prima facie the court has no power to order costs in favour of WorkCover where (in a proceeding to which the section applies) the claim is dismissed. [8] Counsel for the appellant drew the court’s attention to the obvious unfortunate consequences of placing such a construction on the section. It would mean, for example, that even where a claim was dismissed as being fraudulent an order for costs could not be made in favour of WorkCover. It was therefore submitted that the court should find some way of construing s 325 so as to empower the court to make an order for costs in favour of WorkCover where the proceeding was dismissed.” His Honour considered that the language of the section was plain, and that it admitted of only one meaning. He concluded - -- 4 of 7 -- 5 “[22] Here the legislature has enacted that in the existing circumstances the court may make no order as to costs other than as prescribed in subsections (2), (3), (4) and (5) of the section. The order sought does not come within any of those provisions and therefore the court has no power to make the order for costs sought.” Dutney J reached a similar conclusion. He said - “[37] Since s 325(1) unequivocally removes any power to award costs except in the specific and limited circumstances it sets out, this Court should be slow to conclude that the failure to include this case within the scope of permissible costs orders results from the use of inappropriate words to convey the legislature’s obvious intention. It is also possible that the legislature simply failed to think about this fact situation. That might explain the failure to include it in the limited list of allowable orders. [38] This is not, in my view, a case where it is clear beyond question that the legislature failed to express its real intention in the statute. Hence it is unnecessary that this Court should examine the limits of its power to construe the Act so as to give effect to that intention under the principles to which the appellant referred.” Helman J agreed with their Honours. [8] Subsections (2) and (3) of s 325, which are concerned with costs orders which may be made where the Court awards damages to a worker, are inapplicable in the present circumstances. So, too, are subsections (5) and (6) which are concerned with costs where an entity other that the worker's employer and WorkCover is joined as a defendant. [9] Subsection (4) limits the Court's power to award costs of an interlocutory application to circumstances where the application was brought because of unreasonable delay by one of the parties. For the reasons I am about to give, I consider that the determination of the separate question was in the nature of an interlocutory application. Be that as it may, it has not been suggested that it was brought because of unreasonable delay by one of the parties. [10] Whether a judgment or order is final or interlocutory in character can arise in a number of contexts, including whether an appeal from it lies as of right or only by leave and whether hearsay evidence is admissible on the hearing. [11] At least in the case of an appeal rule such as that in s 118 of the District Court Act 1967, the distinction is drawn according to whether the judgment or order finally disposes of the rights of the parties.5 The focus must be on the legal effect of the 5 Licul v Corney (1976) 180 CLR 213 at 225 per Gibbs J. See also Hall v Nominal Defendant (1966) 117 CLR 423 at 440 and 442-444 and Platypus Leasing Inc v FCT [2005] NSWCA 399 at [23]-[30]. -- 5 of 7 -- 6 judgment or order rather than its practical effect.6 If it creates a res judicata, it will be final,7 but if it does not preclude a second or subsequent application of the same type, it will be interlocutory.8 [12] In Duff v Blinco (No 1)9 the plaintiff claimed, pursuant to a contract, royalties in respect of timber the defendants had harvested from his property. Pursuant to r 483 of the UCPR the question of the defendants’ liability to pay royalties was decided separately from the issue of the quantum of the royalties. A District Court Judge determined the separate question in the plaintiff's favour. In holding that an application for leave to appeal pursuant to s 118(3) of the District Court Act 1967 was competent, Keane JA regarded the determination as interlocutory in character. [13] In Barnes v Australian Telecommunications Corporation10 the plaintiff claimed damages for personal injuries sustained in the course of his employment in a proceeding in the District Court. Before the action was heard, the plaintiff obtained a declaration that a certain letter constituted a valid notice of election to institute proceedings pursuant to s 45 of the Safety Rehabilitation and Compensation Act 1988 (Cth). The Court of Appeal determined that the declaration was interlocutory in character, so that leave to appeal was necessary. In discussing the appellant's submission that the decision was final rather than interlocutory, Pincus JA said - “There is certainly an authority which favours the appellant: in TAG Pacific Limited v. McSweeney.11 A similar question arose in the Federal Court and it was decided that the judgment in question was final, not interlocutory. What occurred there, in an action for damages, was that the judge determined the question of liability first, giving judgment for damages to be assessed. The defendant applied for leave to appeal, which was necessary if the judgment was interlocutory, but it was determined that leave to appeal was unnecessary. But in Landsal Pty Ltd v. R.E.I. Building Society12 the Full Court of the Federal Court criticised the decision in the TAG case as being inconsistent with previous decisions. The Full Court's view appears, with respect, to be correct. In John Grant & Sons Ltd v. The Trocadero Building Investment Company Limited,13 a builder sued on a progress certificate. There was a cross- action and each party demurred to some of the other party's pleadings; the points so raised were decided by the Supreme Court of New South Wales and judgment entered on the demurrers, with leave to amend. 14 The plaintiff appealed as of right and no point was taken about the right to do so, but Dixon J.15 with whom Rich J. agreed,16 6 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248 per Gibbs CJ and 256 per Mason J. 7 Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35. 8 Meddings v The Council of the City of Gold Coast [1988] 1 QdR 528. 9 2006] 1 QdR 528. 10 [1996] 2 QdR 1. 11 [1992] FCA 168; (1992) 34 F.C.R. 438. 12 (1993) 113 A.L.R. 643 at 653. 13 [1938] HCA 20; (1938) 60 C.L.R. 1. 14 (1937) 37 (N.S.W.) 535. 15 [1938] HCA 20; (1938) 60 C.L.R. 1 at 35. 16 [1938] HCA 20; (1938) 60 C.L.R. 1 at 19. -- 6 of 7 -- 7 held that the judgment was interlocutory because it did not determine the action. Then in Apple Computer Inc. v. Computer Edge Pty Ltd17 the Federal Court had to consider a number of claims under the Trade Practices Act 1974 (Cth) and the Copyright Act 1968 (Cth). Permanent injunctions were granted, but the whole case was not disposed of because claims for damages were left unresolved; it was ordered that if they were to be pursued certain procedural steps should be taken. An appeal was filed in the High Court as of right, but was held to be incompetent: 18 Gibbs C.J. remarked: ‘What is plain is that the judgment of [the Federal Court] comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not.’ After reference to the judgment in John Grant & Sons just referred to, Gibbs C.J. held that the judgment of the Federal Court was not final. It therefore appears to be established that if a judgment, although finally determining some of the issues in an action, leaves another or others undetermined, it is not a final judgment for the purposes of appeal provisions such as those being considered here; the High Court's decision in the Computer Edge case thus vindicates the decision of the Full Court of the Supreme Court of Victoria in Dunstan v. Simmie & Co. Pty Ltd19.” 20 [14] The determination in the present case finally determined the issue whether the claim had been compromised, but it left the issues of liability and quantum for determination. It was thus interlocutory in character. [15] The application for costs must be dismissed. [16] The Court declares that contrary to the allegations as pleaded in paragraphs 12, 13 and 14 of the defence, on 26 April 2006 the plaintiff did not compromise her claim against the defendant for damages for personal injuries suffered on 12 October 2000 in the course of her employment; and it dismisses the plaintiff’s application for costs. 17 1984) 1 F.C.R. 549. 18 [1984] HCA 47; (1984) 54 A.L.R. 767. 19 [1978] V.R. 669 at 670. 20 Barnes v Australian Telecommunications Corporation [1996] 2 QdR 1 at 4. -- 7 of 7 --