Ferrier v WorkCover Queensland (No 2) [2019] QSC 19 [2019] 8 QLR

SUPREME COURT OF QUEENSLAND CITATION: Ferrier v WorkCover Queensland (No 2) [2019] QSC 19 PARTIES: MICHAEL NEIL FERRIER (applicant) v WORKCOVER QUEENSLAND (respondent) FILE NO/S: SC No 76 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Mackay DELIVERED ON: 12 February 2019 DELIVERED AT: Rockhampton HEARING DATE: On the papers JUDGE: Crow J ORDER: 1. The respondent pay the applicant’s costs on the standard basis. CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT - where applicant was successful in application for extension of time limitation – whether costs follow the event Civil Proceedings Act 2011 (Qld) Limitations of Actions Act 1974 (Qld) Motor Accident Insurance Act 1994 (Qld) Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Ferrier v WorkCover Queensland [2019] QSC 11 Dick v University of Queensland [1999] QSC 43 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Smith v Advanced Electrics Pty Ltd [2003] QCA 432 COUNSEL: C Heyworth-Smith QC for the applicant A Mellick for the respondent -- 1 of 5 -- 2 SOLICITORS: Macrossan & Amiet for the applicant BT Lawyers for the respondent Background Facts [1] The applicant was successful in his application to extend the period of limitation in respect of personal injuries suffered by him on 31 July 2010.1 The applicant seeks its costs of and incidental to the application and the respondent opposes that order and seeks alternatively an order that costs be reserved, to be ordered as costs in the cause. [2] The respondent accepts that pursuant to r 681 of the Uniform Civil Procedure Rules 1999 (Qld) costs ordinarily follow the event “with the court however having a discretion to order otherwise.” [3] The respondent submits in paragraph 2 of its written submissions: “Before the advent of pre-court proceedings which prevent commencing a proceeding in the Court as of right, the practice was to commence a proceeding and, in that proceeding, bring an interlocutory application for the extension of limitation period. When applications were allowed, the costs orders commonly made were that they be reserved to the trial judge, or they became costs in the cause.” [4] There are numerous examples of pre-court proceedings cases where costs orders have been made as costs in the cause where an applicant succeeded in the extension of a time limitation period where the applicant had suffered personal injury2. I have not located any case by which a successful plaintiff has sought its costs decision. [5] Certainly, as the respondent’s counsel submits, before the advent of pre-court proceedings, that as the practice was to commence a proceeding (in those days by writ of summons and more lately by claim and statement of claim) costs orders were frequently made as costs in the cause, that is, in the cause which had in fact been commenced in the Supreme or District Court. The nature, extent and practice of personal injury litigation has changed significantly with the advent of pre-court proceedings, with substantially less litigation being brought before the courts. The aim therefore of pre-court proceedings legislation may seem to have been met.3 [6] In Dick v University of Queensland4 White J (as her Honour then was) extended the period of limitation for a personal injury action. With respect to the issue of costs, her Honour said at paragraph 15: “The applicant contends that if he is successful on this application costs ought to be costs in the cause. Mr O'Sullivan for the first defendant submits that the applicant has come to the court for a favour and ought to pay the costs. I am of the view that the applicant does not seek a 1 Ferrier v WorkCover Queensland [2019] QSC 11. 2 Tonia v State of Queensland [2010] QSC 434. 3 Workers’ Compensation and Rehabilitation Act 2003 (Qld), Personal Injuries Proceedings Act 2002 (Qld), Motor Accident Insurance Act 1994 (Qld). 4 [1999] QSC 43. -- 2 of 5 -- 3 favour in the sense that an applicant may with respect, for example, to an O90 r9 application for leave to proceed. The applicant has an entitlement granted by the legislation and if he can bring himself within the provisions of s31 of the Limitation of Actions Act he may have an order in his favour. Such a finding in his favour does not envisage any "indulgence" on the part of the court towards the applicant. Accordingly the appropriate order as to costs is that the costs of and incidental to the application be costs in the cause.” [7] I note in respect of that case, in which the applicant plaintiff, Mr Dick, had suffered from a severely disabling peripheral neuropathy, all that was said about the liability was: “There is a prima facie case made against the first defendant. Dr Carroll reported that the toxic effect of n-hexane was known since 1970.” [8] I respectfully adopt the views of White J. If the applicant succeeds in extending the time limitation, then “such a finding in his favour does not envisage any “indulgence” on the part of the court towards the applicant.” [9] I further accept as White J said “[t]he applicant has an entitlement granted by legislation and if he can bring himself within the provisions of s 31 of the Limitation of Actions Act, he may have an order in his favour.” [10] As the respondent concedes, the general rule in r 681 is that costs of proceedings, including an application are within the discretion of court and follow the event unless the court orders otherwise. As the learned authors of Civil Procedure Queensland note, the rationale underpinning the general rule was explained by McHugh J (with whose reasons Brennan CJ expressed general agreement) at paragraph 675: [67] The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. [68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs (1998) 152 ALR 83 at 102 would inevitably lead to an increase in litigation 5 Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 (footnotes omitted). -- 3 of 5 -- 4 with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. [69] The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows: ‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’ “Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.” [11] In paragraph 43 of my judgment6 I set out an oft-quoted passage from the judgment of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor. The first two lines are worth repeating. They are: “The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse…” [12] In terms of Oshlack (supra), there is no suggestions that Mr Ferrier is guilty of any kind of improper conduct. Mr Ferrier has not, and is not, entitled to commence an action against his former employer as he has not complied with the pre-court proceedings set out in chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). [13] By r 150(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld), a defendant is required to plead a defence under the Limitations of Actions Act 1974 if the defendant wishes to take a time limitation defence. The defendant is not bound to take a time limitation defence, but if it wishes to take a time limitation defence, then it is required specifically to plead that defence. Just as a defendant is not bound to plead a limitation defence but may elect to plead a limitation defence, a defendant is not bound to contest an application for extension of time but may elect to do so. [14] In Smith v Advanced Electrics Pty Ltd7 the Court of Appeal unanimously ordered a respondent to pay a successful applicant’s costs for a declaration that the applicant was under a disability (within the meaning of s 29 of the Limitation of Actions Act 1974 (Qld)) and a further declaration that the period within which the applicant may bring an action to recover damages had not expired. 6 Ferrier v WorkCover [2019] QSC 11. 7 [2003] QCA 432. -- 4 of 5 -- 5 [15] Section 29 of the Limitation of Actions Act provides for an extension of the time limitation in cases of disability. I am unable to discern any principle which suggests that an applicant who, by virtue of s 29 of the Limitation of Actions Act, receives an extension of time because that person is suffering from a disability, and a successful applicant under s 31. [16] The respondent argues that it is appropriate that costs be reserved or made costs in the cause as “there is a dispute as to whether the applicant was injured at work as alleged, a dispute that cannot be resolved until trial… there are significant quantum issues that cannot be resolved now…” [17] It has been my experience over the last 27 years litigating in personal injury that a very small percentage of personal injury claims in fact proceed to trial. The respondent, as a significant insurer and model litigant, will have the statistics to enable that percentage to be quantified. That information has not been provided, however, I cannot assume as a matter of general knowledge, nor as matter of construction of the statute, that there is likely to be a trial in this matter. [18] The Workers’ Compensation and Rehabilitation Act 2003 (Qld) contains provisions which suggest that “a dispute … cannot be resolved until trial” is not at all within the intent of the legislation. In particular, the sections 273, 274, 275, 279(1), 281, 288, 289 and 293 are pertinent. [19] I would construe the Act as evincing a strong legislative intention that disputes subject to the Act ought to be resolved prior to the commencement of court proceedings. That, and the conduct of the respondent as a model litigant, has ensured that that aim has been met. I cannot therefore accept a submission that the dispute between the applicant and the respondent cannot be resolved until trial as a justification for non-application of the general rule as to costs provided in r 681. [20] I order the respondent to pay the applicant’s standard costs of and incidental to the application on the standard basis. -- 5 of 5 --