Black v Warwick Shire Council (No 2) [2009] QSC 140

SUPREME COURT OF QUEENSLAND CITATION: Black v Warwick Shire Council (No 2) [2009] QSC 140 PARTIES: NEVILLE JOHN BLACK (plaintiff) v WARWICK SHIRE COUNCIL (defendant) FILE NO/S: BS 8548 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 3 June 2009 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: White J ORDER: 1. The plaintiff pay the defendant’s costs of and incidental to the proceedings to be assessed on the standard basis. 2. Stay the operation of that order pending the filing of an appeal within the time limited by the rules and, if filed, until its determination. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – COSTS – PARTICULAR CASES – where plaintiff’s claim against defendant for damages for negligence and breach of statutory duty arising out of employment was dismissed – where plaintiff’s injuries were assessed as giving rise to a work related impairment of 43% – where Ch 5 Pt 12 Div 1 of the Workers’ Compensation and Rehabilitation Act 2003 applies in relation to costs – whether plaintiff has obtained “a judgment” for the purposes of s 313 of the Workers’ Compensation and Rehabilitation Act 2003 Supreme Court Act 1995 (Qld), s 221 Uniform Civil Procedure Rules 1999 (Qld), r 659, r 681 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 311, s 313 COUNSEL: Dr G J Cross for the plaintiff Mr W D P Campbell for the defendant -- 1 of 3 -- 2 SOLICITORS: Shine Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant [1] The plaintiff’s claim against the defendant for damages for negligence and breach of statutory duty arising out of his employment with the defendant was dismissed on 25 May 2009. [2] On 30 August 2005 the plaintiff’s injuries were assessed as giving rise to a work related impairment (“WRI”) of 43% and a certificate to that effect has been attached to submissions on costs by counsel for the defendant. [3] After the compulsory conference on 12 September 2007 the plaintiff made a final written offer of $150,000 clear of the refund to the Queensland Local Government Workcare Scheme (“LGW”). LGW, the insurer of the defendant, made a written offer to settle by payment of “$NIL” exclusive of the refund owing to LGW. [4] The defendant seeks an order that the plaintiff pay its costs of the proceedings to be assessed on the standard basis. The plaintiff seeks that there be no order as to costs. [5] The plaintiff accepts that Ch 5 Pt 12 Div 1 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) dealing with costs applies as the plaintiff’s WRI was more than 20 per cent. Section 311 provides: “If a court has assessed damages in the claimant’s proceeding for damages, it must apply the principles set out in sections 312 to 314.” [6] Dr Cross, for the plaintiff, contends that the court has “assessed damages” in the proceedings and, in that circumstance, s 313 applies. It provides: “313 Costs if written final offer by insurer (1) This section applies if – (a) the insurer makes a written final offer that is not accepted by the claimant; and (b) the claimant obtains a judgment that is not more favourable to the claimant than the written final offer; and (c) the court is satisfied that the insurer was at all material times willing and able to carry out what was proposed in the written final offer. (2) Unless the insurer or the claimant shows another order for costs is appropriate in the circumstances, the court must – (a) order the insurer to pay the claimant’s costs, calculated on the standard basis, up to and including the day of service of the written final offer; and (b) order the claimant to pay the insurer’s costs, calculated on the standard basis, after the day of service of the written final offer.” -- 2 of 3 -- 3 [7] Dr Cross submits that “another order for costs is appropriate” as provided for in s 313(2). The reasons for that submission are: • The quantum of the plaintiff’s claim was agreed by the parties prior to trial but subsequent to formal offers being exchanged and the defendant’s costs should be payable on the standard basis limited to the defendant’s costs incurred with respect to liability. • The plaintiff suffered severe injuries as a consequence of contracting Q fever in the course of his employment. • Because of the severity of his injuries the plaintiff should not be further burdened with an order which there would be no realistic prospect of meeting. [8] Leaving to one side the question of whether the court has “assessed damages” which founds the jurisdiction to embark upon a decision about costs, and which was not argued by the parties, s 313 does not apply to these proceedings. Section 313(1)(b) requires the plaintiff to have obtained “a judgment” that is not more favourable than the written offer of settlement. Rule 659 of the Uniform Civil Procedure Rules 1999 (Qld) provides a short definition of “Judgment” which is of general application. It provides: “Final relief granted in a proceeding started by a claim is granted by giving a judgment setting out the entitlement of a party to payment of money or another form of final relief.” The dictionary in Sch 4 states that “judgment” for Ch 16 orders is that which is contained in r 659. On any understanding of what “obtains a judgment” means, the plaintiff obtained no judgment. Unlike Ch 5 Pt 12 Div 2 of the Workers’ Compensation and Rehabilitation Act1 there is no prohibition on making a costs order in circumstances not covered by ss 312 to 314. Accordingly s 221 of the Supreme Court Act 1995 (Qld), the general power of the Supreme Court to award costs, and r 681(1) of the Uniform Civil Procedure Rules, that costs should follow the event, apply. No discretionary factors have been identified which would sound against the usual order being made. The matters mentioned by Dr Cross are not of the kind which call for a moderation of the general rule. Whether the costs should cover only liability issues will be a matter for the assessor and involve a consideration of matters about which little is known by the court. [9] The plaintiff has sought a stay of any costs order awarded against him until the determination of any appeal which he might file. The defendant has not responded to that application. There is no prejudice to the defendant in making such an order whereas an immediate order in favour of the defendant, if the appeal were successful, would be very burdensome to the plaintiff. Orders: 1. The plaintiff pay the defendant’s costs of and incidental to the proceedings to be assessed on the standard basis. 2. Stay the operation of that order pending the filing of an appeal within the time limited by the rules and, if filed, until its determination. 1 Section 316(1). -- 3 of 3 --