Clarricoats v JJ Richards & Sons Pty Ltd (No 2) [2018] QSC 30 [2018] 3 Qd R 403

SUPREME COURT OF QUEENSLAND CITATION: Clarricoats v JJ Richards & Sons Pty Ltd (No 2) [2018] QSC 30 PARTIES: JOSHUA BENJAMIN CLARRICOATS (Plaintiff) v JJ RICHARDS & SONS PTY LTD (Defendant) FILE NO/S: S615 of 2015 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 27 February 2018 DELIVERED AT: Rockhampton HEARING DATE: On the papers. JUDGE: McMeekin J ORDER: 1. The plaintiff pay the defendant’s costs from 5 August 2015, including the costs thrown away by the adjournment on 3 April 2017, to be assessed on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – OTHER PARTICULAR CASES AND MATTERS – where the plaintiff sought an adjournment because of problems caused by the substantial flooding that occurred in Central Queensland and Northern New South Wales – where the flooding caused significant difficulties in getting the plaintiff, his witnesses and solicitor from Lismore to Rockhampton – where in such circumstances the adjournment was granted – where neither party is responsible for the circumstances which led to the adjournment – whether costs of the adjournment should follow the event Workers’ Compensation & Rehabilitation Act 2003 (Qld), s 240(2), s 292, s 316 Earp Woolcock Beveridge & Co Ltd v Gordon cited Electrolytic Zinc Co of Australasia Ltd v Cieslak [1969] Tas -- 1 of 4 -- 2 SR 50, followed Pell v Linnell (1868) LR 3 CP 441, cited Queensland v Brooks & McCabe [2006] QCA 523, followed Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd [2012] QSC 102, cited Zuecker v Bruggmann [2016] QSC 115, cited COUNSEL: DA Wheelahan QC with PJ Woods for the Plaintiff GF Crow QC for the Defendant SOLICITORS: Bourke Love Lawyers for the Plaintiff DibbsBarker for the Defendant [1] McMEEKIN J: On 29 September 2017 I gave judgment for the defendant dismissing the plaintiff’s claim. I gave the parties leave to make submissions on costs. The Defendant has done so. The plaintiff has not. [2] The defendant seeks that the plaintiff pay its costs, including reserved costs, from the date of a final written offer made pursuant to s 292 Workers’ Compensation & Rehabilitation Act 2003 (Qld) (“the Act”). The defendant offered to settle by paying the plaintiff $250,000 clear of the WorkCover refund. [3] The plaintiff’s notice of assessment under the Act stated that he had a DPI of less than 20% and did not have a terminal condition. Because of that Part 12 division 2 of the Act applies in relation to costs: s 240(2) of the Act. Section 316 falls within division 2 of Part 12 of the Act and is relevant. It provides: 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. (2) If a claimant or an insurer makes a written final offer of settlement that is refused, the court must, in the following circumstances, make the order about costs provided for— (a) if the court later awards an amount of damages to the worker that is equal to or more than the worker’s written final offer—an order that the insurer pay the worker’s costs on the standard basis from the day of the written final offer; (b) if the court later dismisses the worker’s claim, makes no award of damages or awards an amount of damages that is equal to or less than the insurer’s written final offer—an order that the worker pay the insurer’s costs on the standard basis from the day of the final offer. (3) If an award of damages is less than the claimant’s written final offer but more than the insurer’s written final offer, each party bears the party’s own costs. -- 2 of 4 -- 3 [4] In the circumstances pertaining here s 316(2)(b) requires that “the worker pay the insurer’s costs on the standard basis from the day of the final offer.” As s 316(1) makes plain there is no discretion. [5] The only issue to determine is whether the plaintiff should pay the reserved costs. The costs came about because of an adjournment of the trial and are the costs thrown away by the adjournment. [6] The basis of the claim for the costs thrown away is not articulated. Three possibilities occur to me. One is that it was not reasonable to delay the trial. A second is that the plaintiff pursued an unmeritorious claim and so should bear all the consequent costs, even though he was not personally at fault and could not by then reasonably avoid them. A third is that I have no discretion under the Act. [7] As to the first point, in my view it was not reasonable to insist that the plaintiff try and make it to Rockhampton in the conditions then prevailing. [8] The plaintiff sought and obtained that adjournment because of problems caused by the substantial flooding that occurred in Central Queensland and northern New South Wales in April 2017. This caused significant difficulties in getting the plaintiff, his witnesses and his solicitor (who practises in Lismore) to Rockhampton. The defendant’s argument then was that an adjournment was not justified as the plaintiff could by taking a circuitous route on the highways or by incurring substantial costs fly into the city. I thought that was not practicable. The plaintiff did have a ruptured disc in his spine, preferred to minimise his time in motor vehicles, and was an invalid pensioner with limited means. The solicitor had great difficulty even accessing his office in Lismore, the police having closed the city centre. I was persuaded to grant the adjournment. [9] As to the second point there is no rule that a party only becomes liable for costs if they are in some way personally at fault. In Electrolytic Zinc Co of Australasia Ltd v Cieslak1, the Full Court said: “If a trial proves abortive for a reason beyond the control of the parties and not due to the fault of either of them, that in our view is (unfortunately) an accident of litigation of which both parties run the risk until the litigation is decided. When it is decided, we think the ordinary rule should apply — the loser should pay, in the absence of circumstances indicating some other result.”2 [10] Keane JA (as his Honour then was) made the same point in Queensland v Brooks & McCabe3, where a hearing had to be vacated because of the illness of one of the judges on the Court of Appeal: “It is true that neither party was responsible for the circumstances which led to the vacation of the first hearing. But that is no reason to deny the successful party costs necessarily incurred by it in relation to the determination of the appeal in its favour. There is no principle 1 [1969] Tas SR 50. 2 At 55. 3 [2006] QCA 523. -- 3 of 4 -- 4 of law that a successful party should recover only those costs which it has incurred by reason of the default of the other party.”4 [11] There are decisions the other way: Pell v Linnell5,, where the Court of Common Pleas held that, where a trial was suspended by “act of God”, that is by no fault of a party, then there should be no order as to costs. That approach was followed in Earp Woolcock Beveridge & Co Ltd v Gordon.6 [12] There are conflicting decisions in recent times in Queensland but those decisions reflect the particular facts of the respective cases: see Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd7; Zuecker v Bruggmann.8 [13] In my view the loser here should pay even though not at fault personally. The principle identified by Keane JA applies. [14] As to the third point the defendant did not expressly urge that interpretation. However the words of s 316(1) seem plain beyond argument. I have no discretion. Conclusion [15] The plaintiff should pay the costs thrown away by the adjournment and which I reserved. [16] The order will be that the plaintiff pay the defendant’s costs from 5 August 2015, including the costs thrown away by the adjournment on 3 April 2017, to be assessed on the standard basis. 4 At [5]. 5 (1868) LR 3 CP 441 at 443. 6 (1927) 44 WN (NSW) 123. 7 [2012] QSC 102. 8 [2016] QSC 115. -- 4 of 4 --