Clarke v Queensland Rail [2001] QSC 483

46431 State Reporting Bureau &~~:~~!'.::~.:::::::: Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No S744 of 2001 GORDON WAYNE CLARKE and QUEENSLAND RAIL TOWNSVILLE .. DATE 07/12/2001 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date: 10/12/01 Applicant Respondent 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 55~2 -- 1 of 5 -- 07122001 Tl/DGJ M/T TSVSCl/2001 (Cullinane J) HIS HONOUR: The applicant instituted proceedings seeking declarations that a notice of claim given by the applicant~to the respondent on 20 August 2001 was a compliant notice or that any non-compliance had been remedied. Some alternative claims were made. By a fax of 29 October 2001, forwarded some two days after this application had been made, the respondent informed the applicant that the respondent accepted the notice as complying with section 238 of the WorkCover Act, or waiving 10 outstanding matters of alleged non-compliance. The only issue which remains then, is one of costs. The applicant seeks the costs of the application whilst the respondent resists the making of any such order. In summary, what the material reveals occurred is as follows: Upon receipt of the claim, the solicitors for the respondent replied stating that the grounds of negligence relied upon were inadequate, and that they simply repeated the terms of a summons issued under the Workplace Health and Safety Act 20 against the respondent. This summons proceeded to a hearing in September. Further particulars were sought by the respondent of the first four grounds in the notice. In addition, it was also said that the claim improperly included a Griffiths & Kerkemeyer claim. The solicitors for the applicant responded, the effect of which was that the particulars of negligence relied upon were not confined to matters contained in the summons and that the last two grounds extended beyond these. It was said that the 30 matter had been extensively canvassed in the proceedings 2 JUDGMENT -- 2 of 5 -- 07122001 Tl/DGJ M/T TSVSCl/2001 (Cullinane J) before the Magistrates Court and thus that the respondent was fully aware of the relevant circumstances. The respondent~s attention was drawn to annexure A part 1 of the notice of claim. It was also said that claims under the Griffiths & Kerkemeyer principle are not absolutely excluded. There was further correspondence following almost a month's delay on the part of the applicant's solicitors in responding 10 to the respondent's solicitors' letter of 20 September 2001. The solicitors for the applicant sought a response to their letter of 19 October 2001 asking that the respondent take the necessary steps under section 282 of the Act. It should be pointed out that the respondent, in raising the matters in response to the notice of claim, did not in fact take the steps required by section 282. The solicitors for the applicant indicated in their letter of 19 October 2001 that an application would be made to the 20 Court. A further letter of 23 October 2001 seeking a response was sent by the applicant's solicitors. An application was made two days later and served. It was returnable on 2 November 2001. I have already referred to the fax of 29 October 2001. In an affidavit by the solicitor for the respondent, he outlined the steps which he took in response to the notice. This involved obtaining instructions from Queensland Rail and seeking information about the prosecution which was then 30 pending. He received a copy of the certificate of conviction 3 JUDGMENT -- 3 of 5 -- 07122001 Tl/DGJ M/T TSVSCl/2001 (Cullinane J) from the applicant's solicitors on or about 20 September 2001, and on or about 11 October 2001 asked Queensland Rail to obtain a copy of the transcript of the trial and judgment and he was promised that this would be done. In fact, he received the reasons for judgment with the affidavit of the solicitor for the applicant on or about 26 October 2001. He sought instructions, and as a result, forwarded the fax of 29 October 2001. 10 For the applicant, it was contended that the provisions of section 325(4) of the Act have no application to this matter since it is not an interlocutory proceeding. There is some authority to that effect. See re Linkhett (Supreme Court Brisbane, No 1959 of 1999, White J, unreported, 9/4/99) in which her Honour Justice White held this to be so and considered that in an application of this kind the relevant provision was the general provision of the Rules of Court relating to costs. An order for costs was made in that matter 20 upon the application of the ordinary principle that costs follow the event. On the other hand, in the matter of Sutton & Cable Layers Communications Pty Ltd (Supreme Court Rockhampton, Dutney J, 480/2001, unreported, 8/10/2001) it was held that even accepting that section 225(4) does not apply in the case of an application of this kind (the application was a somewhat different one) the matter of costs should be approached in the light of a clear policy evidenced by the Act that costs should 30 generally not be awarded in respect of such applications to 4 JUDGMENT -- 4 of 5 -- 07122001 Tl/DGJ M/T TSVSCl/2001 (Cullinane J) the Court unless there is some conduct on the part of one or othe~ party which makes such an order appropriate. The Act clearly requires the parties to work cooperatively in relation to the pre-Court procedures and I think there is some validity in Dutney J's views as to the general underlying policy of the Act on the issue of costs, accepting that none of the express provisions apply to a case of this kind. Whilst the applicant obtained what he sought by the application, there were some delays involved on the applicant's part in responding to the respondent before a fairly rapid recourse to the Court. The respondent, on the other hand, it would seem, misapprehended the effect of the notice of claim so far as the allegations of negligence are concerned, and overstated the position so far as a Griffiths & Kerkemeyer claim was concerned. Viewing the matter overall, and giving effect to the policy of which Dutney J spoke, I think that the conduct of the respondent ought not to be regarded as involving so serious a departure from what might be reasonably required of the parties in dealing with such matters as to require that it be visited with an order for costs. In the circumstances, I do not propose to make an order for costs. The application is dismissed. 5 JUDGMENT 10 20 30 -- 5 of 5 --