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  • Unreported Judgment

Wellington v Q-Comp

 

[2005] QSC 93

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

McMURDO J

No 5463 of 2004

KYM WELLINGTON

Applicant

and

 

Q-COMP

First Respondent

and

 

THE GENERAL MEDICAL ASSESSMENT TRIBUNAL

Second Respondent

(NEUROLOGICAL/NEUROSURGICAL)

 

BRISBANE

DATE 03/03/2005

JUDGMENT

HIS HONOUR: In these proceedings, the applicant had sought a statutory order of review of the decision of a Medical Assessment Tribunal which was given in May 2004. The applicant had received a conditional certificate in relation to his contention that he had suffered some head injury in a work-related accident.

The question for the tribunal was whether he had suffered an injury in that respect, and it decided that he had not. These proceedings were commenced on 22 June 2004, and on the first return date which was 8 July 2004, directions were made for the conduct of the case through to a final hearing.

At the same time, the applicant had been progressing his claim that he was physically injured in the same accident, and that he was entitled to be compensated by both his employer and a third party who was outside what has been described as the WorkCover banner.

In September 2004, after some interlocutory steps had been taken in these proceedings, a settlement conference occurred at which the applicant compromised his cause of action against the employer which involved, in effect, his claim for any loss or damage from the subject accident. Necessarily then his claim insofar as it related to an allegation of a head injury was thereby compromised.

In consequence, these judicial review proceedings lost their utility. Had the applicant been able to obtain judicial review, it would have been to the ultimate end of being able to sue his employer. Once his cause of action, including his right to seek damages in relation to the head injury, was compromised, these present proceedings lack utility.

Nevertheless, the case continued. It was after that settlement that the case was given a date for trial and it came on for hearing today. The parties are agreed that there should be an order for the dismissal of the application but there was a substantial debate as to costs.

As the matter was ultimately argued, the applicant sought two alternative orders. The first was that the applicant should have its costs of these proceedings after 28 September 2004, that being the date upon which it is said the respondent should have agreed to the applicant's then proposal which was that each party should bear his or its own costs. The applicant's submission is that the refusal of that proposal was unreasonable, that the applicant has been put to costs since 28 September and in the circumstances it is just that the respondent should pay them.

Alternatively, the applicant submits that I should order that each party bear its own costs of the proceedings. Each of those applications is resisted and the respondent seeks an order that the applicant pay its costs of the proceedings as a whole.

The issues as to cost, the parties agree, are ones which engage section 49 of the Judicial Review Act (1991). Section 49(2) requires a Court then to have regard to the various considerations which it prescribes.

For the respondent, it is submitted that the applicant has offered no evidence as to at least some of those considerations - for example, as to his own financial resources. However, as I read Section 49, the terms of subsection (2) do not prescribe preconditions of a power to make an order of the kind within Section 49 but, instead, prescribe certain considerations to which a court must have regard. If an applicant does not choose to adduce evidence upon those matters, then it runs the risk that inferences will be drawn as to those matters adverse to him.

In relation to the matters set out in Section 49(2), the financial resources of the relevant applicant which are unknown are a matter which I would not therefore consider would be favourable to the costs application which the applicant makes. On the other hand, it does not seem to me that the absence of evidence as to that matter is such that taken together with everything else I should refuse either of his applications.

There is no suggestion that there is some person associated with the applicant who has an interest in the outcome of the proceeding in terms of subsection (2)(a)(ii). It is submitted for the applicant that this proceeding involves an issue that affects or may affect the public interest. I accept, as the applicant argues, that there is a public interest in the Medical Assessment Tribunal conducting its proceedings according to law, but that is not the present question. It does not seem to me that this case, as it was outlined to me in the applicant's argument, affects the public interest in the sense relevant to section 49(2).

The next of those considerations is whether the proceeding discloses a reasonable basis for the review application. That is a question which involves to some extent an exploration of the merits of this application. Neither party this morning asked me to explore the merits at least in any depth. No application was ever made in these proceedings under Section 48 for the summary disposition of the case and in saying that I am not at all critical of the respondent because it seems to me that such an application would not have succeeded.

But to put the matter another way, the application for judicial review was not so apparently devoid of merit in that it was susceptible to be struck out under Section 48 and at least to that extent upon such exploration of the merits as the parties asked me to undertake, the proceeding does disclose a reasonable basis for review in terms of section 49(2)(c).

The present argument is also such as to engage Rule 683 of the Uniform Civil Procedure Rules which provides that if for any reason it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the Court for an order for the costs and the Court may make the order for which the Court considers to be just.

Where this rule is engaged, the question of costs becomes, in my view, somewhat different from that which is described as governed by the general rule in Kamarooka Ridge Pty Ltd & Anor v. State of Queensland (1998) Queensland Conveyancing Reports 54,516 at page 60,166.

The general rule is that where an applicant for relief brings another party to Court resulting in that other party incurring costs and then elects to discontinue and simply withdraws the application, or discontinues, the applicant should pay the costs thrown away.

The discretion within rule 683 is a particularly broad one but at least in some respects the exercise of that discretion should be according to principles which plainly enough appear from cases such as those I will now mention. There are, I think, two propositions which appear from those cases, the first being that at least ordinarily it is undesirable in this context for a Court to undertake something equivalent to a hearing of the proceeding simply for the purpose of deciding a question of costs. The second and related proposition is that the approach of the Court instead should be to look at the overall reasonableness of the conduct of the parties in determining what order for costs should be made.

Those propositions clearly appear from the judgment of Burchett J in One Tel. Limited v. The Commissioner of Taxation (2000) 101 FCR 548, as well as the judgment of McHugh J, extensively cited in One. Tel, in Re Minister for Immigration and Ethnic Affairs Ex Parte Lae Kwin (1997) 186 CLR 622. They also appear from, for example, The Queen v. The Secretary of State for the Home Department ex parte Salem (1999) 2 Weekly Law Reports 483.

Returning then to the facts of this case, in summary what happened after the settlement of the proposed claim against the employer was this: the applicant's side almost immediately proposed that these proceedings be dismissed and that there be no order as to costs. The respondent's side said that they could be dismissed but only on condition that the applicant paid the respondent's costs. In effect the respondent said to the applicant, “Either pay our costs or proceed.” The applicant then acted by progressing this matter on for a final hearing, a course in which the respondent seems to have concurred.

The question of costs in these circumstances seems to me to be affected also by two other considerations. One is that the amount of costs, although no doubt significant to the parties, is from a broader view relatively small compared with the substantial costs of arguing about them. The hearing today and the preparation for the hearing today was solely directed to a question of costs. There has to be some proportionality or otherwise between, the amount of money spent arguing about costs and the amount of the costs in question.

The second is that in this particular statutory scheme it would be unfortunate if the chances of a compromise between a worker and the employer could be affected by the prospect that in a situation such as this the worker would also have to pay the costs of his discontinued judicial review application effectively as the price for settling. It is pointed out in that respect that is a decision for a worker. He does not have to settle his case and it is simply a price which he has to pay for his settlement and from the fact that he chose to bring proceedings for judicial review. But as I see the matter, Courts should not incline to making orders which could, speaking generally, act as some disincentive to the settlement of the real dispute, which is that between the worker and the worker's employer, or its statutory insurer.

As I see the matter there is nothing obviously unreasonable in the conduct of either party throughout these proceedings, and in particular since the 28th of September. I am unable to determine the apparent strength or otherwise of the original application for review. The terms of rule 683 suggest a different approach from one in which costs follow the event, and in particular the event of the discontinuance. And as I have said there are the considerations of the relatively small amount of costs involved, and the desirability of encouraging parties not to argue about relatively small amounts, as well as the consideration of the potential impact upon a compromise of proceedings between employer and employee.

Taking all those matters into consideration it is my view that the order which is just is that each party should bear its own costs of these proceedings, and I will so order. It will be further ordered that the application filed on 22 June 2004 be dismissed.

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Editorial Notes

  • Published Case Name:

    Kym Wellington v Q-Comp

  • Shortened Case Name:

    Wellington v Q-Comp

  • MNC:

    [2005] QSC 93

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    03 Mar 2005

Litigation History

No Litigation History

Appeal Status

No Status