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  • Unreported Judgment

Samways v WorkCover Queensland (No 2)

 

[2010] QSC 273

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Samways v WorkCover Queensland & Ors (No 2) [2010] QSC 273

PARTIES:

SCOTT ANDREW SAMWAYS
(plaintiff)
v
WORKCOVER QUEENSLAND
(first defendant)
and
DE LUCA PROPERTIES PTY LTD
(ABN 80 055 193 514)
(second defendant)
and
LYNSHA PTY LTD
(ABN 97 080 519 919)
(third defendant)

FILE NO:

BS 6092 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDERS:

1.There be judgment for the plaintiff against the first defendant in the sum of $18,828.12.

2.There be judgment for the plaintiff against the second defendant in the sum of $21,244.

3.There be judgment for the plaintiff against the third defendant in the sum of $21,244.

  1. There be no order as to costs as between the plaintiff and the first defendant, as between the plaintiff and the second defendant or as between the plaintiff and the third defendant.

5.Subject to the contractual indemnity between the second and third defendants, it is declared pursuant to s 6(c) of the Law Reform Act 1995 that liability in respect of the plaintiff’s damages be apportioned 10 per cent against the first defendant, 30 per cent against the second defendant and 60 per cent against the third defendant.

6.The first defendant pay its own costs of and incidental to the proceedings, including contribution proceedings, up to and including 12 December 2008, and that the third defendant pay the first defendant’s costs on the standard basis thereafter. 

7.The second defendant pay its own costs of and incidental to the proceedings.

8.It is declared that pursuant to clause 7 of the contract made between the second defendant and the third defendant that the second defendant shall indemnify the third defendant in respect of the plaintiff’s claim including:

(a)the third defendant’s liability to pay damages to the plaintiff;

(b)the third defendant’s costs of defending the plaintiff’s claim;

(c)the third defendant’s costs of and incidental to proceedings for indemnity or contribution.

and that these costs be assessed on an indemnity basis.

9.It is further declared that the third defendant is not entitled to be indemnified pursuant to clause 7 of the contract or pursuant to s 6 of the Law Reform Act 1995 by the second defendant in respect of the third defendant’s liability to pay the costs of the first defendant pursuant to Order 6 herein.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF THE PARTIES – where plaintiff obtained judgment for less than $30 000 against each defendant in a personal injuries action – where liability apportioned between defendants 10%: 30%: 60% - where the second defendant disclosed a covert surveillance recording of the plaintiff less than 7 days before trial – where there is a contractual indemnity between the second and third defendants – costs orders as between the plaintiff and each defendant, and amongst the defendants.

STATUTES:

Law Reform Act 1995, s 6(c)

Personal Injuries Proceedings Act 2002, ss 20, 27, 30, 31, 37, 48, 56

Uniform Civil Procedure Rules 1999, rr 225, 355, 364, 393

Workers’ Compensation and Rehabilitation Act 2003, ss 270(1) and 316

CASES:

Coster v Bathgate [2005] QCA 210

Haug v Jupiters Limited Trading as Conrad Treasury Brisbane [2007] QCA 199

Samways v WorkCover Queensland & Ors [2010] QSC 127

COUNSEL:

K C Fleming QC and L R Smith for the plaintiff

R J Lynch for the second defendant

R A I Myers for the third defendant

SOLICITORS:

Trilby Misso Lawyers for the plaintiff

Bradleys Lawyers for the first defendant

McInnes Wilson Lawyers for the second defendant

Sparke Helmore for the third defendant

  1. After giving my reasons for judgment in this matter,[1] I made directions for the parties to make written submissions about the form of final orders and about costs.  These written submissions have now been received.

Refund to WorkCover Queensland

  1. I assessed the plaintiff’s damages provisionally at $26,555, subject to:

(a)clarification that the Fox v Wood component was $648 in the light of my findings;

(b)contributory negligence on the part of the plaintiff of 20 per cent, and

  1. a refund to the first defendant pursuant to s 270(1) of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).

There is no issue in contention between the plaintiff and the first defendant concerning the extent of the refund and the Fox v Wood component.  The refund is $2,415.88 (gross weekly benefits $2,022.88 plus medical expenses of $393) including a Fox v Wood component of $648. 

Judgment as between the plaintiff and the first defendant

  1. There will be judgment for the plaintiff against the first defendant in the sum of $18,828.12. This is the amount of the judgment sum of $26,555 less 20 per cent contributory negligence ($5,311) less the refund of $2,415.88.

Judgment as between the plaintiff and each of the second and third defendants

  1. There will be judgment for the plaintiff against the second defendant in the sum of $21,244.
  1. There will be judgment for the plaintiff against the third defendant in the sum of $21,244.

Costs

  1. Issues of costs abound. Issues of costs as between the plaintiff and each defendant, and issues of costs between defendants are related, but they should not be unnecessarily confused. It is erroneous to approach the matter as the solicitors for the first defendant have done in their written submissions by contending that its liability is only 10 per cent of the net award after account is taken of contributory negligence ($2,124.40) subject to the statutory refund, leaving it with no liability to the plaintiff and the plaintiff liable to it for a small amount. The liability of the first defendant is for the whole of the judgment amount. The fact that it may have claims for contribution against the other defendants in the light of my finding that liability should be apportioned against it in an amount of 10 per cent does not alter the fact that it is liable to the plaintiff in the amount of $18,828.12. Issues of costs as between defendants is affected by the determination that the second defendant is contractually bound to indemnify the third defendant.
  1. It is convenient to first deal with issues of costs as between the plaintiff and each defendant. These costs orders are affected by statutory provisions which generally dictate the costs order which must be made by the Court. For example, s 56 of the Personal Injuries Proceedings Act 2002 (“PIPA”) dictates that a certain order should be made in cases in which damages of $50,000 or less is awarded, but this is subject to the Court’s power under s 48 to award in the claimant’s favour costs reasonably incurred by the claimant because of a respondent’s default in complying with the requirements of Part 1, Division 1 of PIPA.  The plaintiff relies upon this discretionary power in respect of the second defendant’s failure to disclose until 4 March 2010 (five days before the trial commenced) covert video surveillance that was taken on 9 April 2007.  For the reasons that I later give, I decline to exercise my discretion under s 48.

Costs as between the plaintiff and the first defendant

  1. Section 316 of the WCRA provides that no order about costs, other than an order allowed under that section, is to be made by the Court in the claimant’s proceeding.  Section 316 makes provision for costs depending upon whether the award of damages is more, equal to or less than written final offers. 
  1. At the conclusion of a compulsory conference, by way of mediation, on 9 May 2008 the first defendant made a written final offer in the following terms:

WorkCover refund:$40,455.45

Settlement offer:$40,455.45 gross with WorkCover’s refund to be deducted

The plaintiff made a written final offer to the first defendant of $229,544.55 clear of the WorkCover refund of $40,455.45, or $270,000 gross.

  1. The plaintiff submits that the proper construction of the first defendant’s offer is that it amounted to an offer of $Nil clear of the WorkCover refund. The first defendant submits that because in the events that have followed, the refund amount is $2,415.88, its offer was, in effect, an offer of $38,039.57 net. The first defendant’s submission is untenable. The proper construction of the offer was that the amount of the refund was $40,455.45. The offer said as much. If the offer had been accepted, the plaintiff would have received nothing from the first defendant, not an amount that depended on the later determination of the amount of the refund. Further, at no time during which the offer was open for acceptance did the first defendant contend that the refund was only $2,415.88.
  1. The award of damages falls between the plaintiff’s and the first defendant’s written final offers and is governed by s 316(3) of the WCRA.  This provides that if the 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.  Accordingly, there will be no order as to costs as between the plaintiff and the first defendant.             

Costs as between the plaintiff and the second defendant

  1. Section 56 of PIPA governs the award of costs as between the plaintiff and each of the second and third defendants.  At the conclusion of the compulsory conference on 9 May 2008 the second defendant made a written final offer of $Nil, as did the third defendant.  The plaintiff has obtained an award of damages against each of the second and third defendants of $21,244 and, prima facie, the order as to costs is governed by s 56(2) of PIPA which relevantly provides:

“(2)If the court awards $30,000 or less in damages, the court must apply the following principles:

(a)if the amount awarded is less than the claimant’s mandatory final offer but more than the respondent’s, or the respondents’, mandatory final offer, no costs are to be awarded; ...”

This is subject to s 56(7) which states that s 56 does not limit the Court’s power under s 48. 

  1. I shall return to the plaintiff’s reliance upon s 48. Subject to my consideration of s 48, s 56(2)(a) applies and no costs are to be awarded as between the plaintiff and the second defendant.

Costs as between the plaintiff and the third defendant

  1. The same position applies in respect of costs as between the plaintiff and the third defendant.

The discretion to make an order for costs in the plaintiff’s favour because of default in disclosure obligations

  1. The plaintiff relies upon s 48 of PIPA which relevantly provides:

“(2)If a respondent does not comply with the requirements of part 1, division 1, a court in which the respondent defends a proceeding based on the claim may, on a claimant’s application in the proceeding, award in the claimant’s favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent’s default.”

Section 48(2) thereby confers a discretion in respect of costs in a case in which a respondent does not comply with the requirements of Part 1, Division 1.  If the Court exercises its discretion to award costs these are the costs “reasonably incurred by the claimant because of the respondent’s default”.  The quantum of such costs does not necessarily equate to the plaintiff’s costs of and incidental to the proceedings.

  1. The plaintiff relies upon s 20(3) of PIPA which requires an offer of settlement to be accompanied by a copy of:

“... medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.” 

As previously noted, the surveillance recording was taken on 9 April 2007.  It constitutes a “document”, as did certain surveillance reports.  Neither the surveillance recording nor the surveillance reports were included with the second defendant’s response of 1 August 2007.

  1. Section 27 of PIPA requires a respondent to give a claimant copies of “reports about the claimant’s cognitive, functional or vocational capacity” that are directly relevant to a matter in issue.  A respondent who fails, without proper reason, to comply is liable under s 27(4) for costs to the claimant resulting from the failure. As Jerrard JA stated in Haug v Jupiters Limited Trading as Conrad Treasury Brisbane:[2]

“The clear purpose of the division of the PIPA in which s 27 appears, is to put the parties in the position where they have enough information to assess liability and quantum in relation to a claim;  and that it imposes an obligation on a respondent to co-operate with the claimant by providing that information.”

Section 30(1) provides that a party is not obliged to disclose material that is protected by legal professional privilege, however, s 30(2) of PIPA states that investigative reports relevant to the plaintiff’s rehabilitation must be disclosed. Section 30 goes on to provide:

“(3) If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply, ex parte, to the court for approval to withhold from disclosure under division 1 or this division information or documentary material, including a class of documents, that –

(a) would alert the claimant to the suspicion;  or

(b) could help further the fraud.

(4) If the court gives approval on application under subsection (3), the respondent may withhold from disclosure the information or documentary material in accordance with the approval.”

  1. Section 31 of PIPA provides:

“A respondent must not withhold information or documentary material from disclosure under division 1 or this division unless the withholding is permitted under the division or the court approves the withholding.”

  1. Section 37 of PIPA requires the provision of certain documents at least seven days before a compulsory conference, including copies of all documents not yet given to the other party that are required to be given to a party under PIPA
  1. On 2 May 2008 the second defendant stated in a certificate of readiness that it had “fully complied with the respondent’s obligations to give the other party material required to be given to the other parties under this Act”. This was not correct. The surveillance reports were relevant to assessing the plaintiff’s claim to have a shoulder injury that impaired him and was relevant to his claim for economic loss. They were relevant to his functional capacity. They were was apt to help him to make a proper assessment of an offer by the second defendant since they revealed that the second defendant had grounds to conclude that the extent of his injury was grossly overstated. The second defendant had not obtained Court approval to withhold them.
  1. I accept the plaintiff’s submission that PIPA is intended to bring about the speedy resolution of personal injury claims to avoid their determination by courts wherever possible.  Its provisions assist parties to properly assess their respective prospects by imposing disclosure obligations.  However, s 31 of PIPA contemplates that a court may approve the withholding of information or documentary material from disclosure.
  1. Proceedings were commenced in this Court on 27 June 2008. The second respondent was subject to disclosure obligations, and Uniform Civil Procedure Rules 1999 (UCPR) r 225 provides that a party may be ordered to pay the costs or a part of the costs of the proceeding if it does not disclose a document as required under the rules concerning disclosure.
  1. UCPR r 393 makes specific provision in relation to the inspection of, amongst other things, video or audio recordings that a party intends to tender at trial.  It provides:

393Plans, photographs, video or audio recordings and models

(1)This rule applies if a party intends to tender a plan, photograph, video or audio recording or model at a trial or hearing.

(2)Unless the court orders otherwise, at least 7 days before the trial or hearing starts, the party must give all other parties an opportunity to –

(a)inspect anything mentioned in sub rule (1) the party intends to tender;  and

(b)agree to its admission without proof.

(3)An application for an order under sub rule (2) may be made without notice to another party and the court may direct that the application and any supporting evidence be placed in a sealed container, for example, an envelope.

(4)The container may be opened only if the court orders it to be opened.

(5)Noncompliance with sub rule (2) does not affect the admissibility of a plan, photograph, video or audio recording or model.

(6)Compliance or non-compliance with sub rule (2) may be taken into account on the question of costs.

(7)In this rule –

model includes a model or image generated by a computer.”

A covert surveillance recording of the kind in issue which is obtained for the dominant purpose of litigation would ordinarily be the subject of privilege.  However, UCPR r 393 implicitly abolishes the privilege.[3]  The effect of UCPR r 393 is that the plaintiff should have been given an opportunity to inspect the covert surveillance tape at least seven days before the trial started unless the Court ordered otherwise.

  1. The second defendant filed an application of the kind contemplated by UCPR r 393 on 22 February 2010. That ex parte application came before Philippides J on 3 and 4 March 2010 who declined to make the order requested because the application was brought so late, ordered the surveillance tape be disclosed and abridged the time allowed under r 393(2) to enable it to be disclosed on 4 March 2010.  As a result, the video was disclosed five days before the trial whereas UCPR 393 required it to be the subject of an opportunity to inspect at least seven days before the trial.  The second defendant did not obtain the Court’s approval to withhold the tape from disclosure under Division 1 of PIPA or to not make it available for inspection pursuant to UCPR 393.
  1. The second defendant’s solicitors may be criticised for bringing the application far too late. If a timely application had been brought then I think it highly likely that the second defendant (and, indeed, the other defendants) would have been given permission to withhold the recording and to, in effect, surprise the plaintiff with it in the course of cross-examination at the trial. As matters transpired, the plaintiff received a copy of the recording on the eve of trial. This was far too late to inform the quantum of formal offers to settle in order to obtain costs protection. The late disclosure did, however, permit him to anticipate questions about the events recorded on the tape and to have his medical witnesses also view the recording. I accept the plaintiff’s solicitors’ affidavit that because he was unable to have regard to the surveillance footage or reports prior to 4 March 2010, the solicitor was unable to have regard to this material when advising the plaintiff as to the future conduct of the action or in respect of settlement offers and negotiations. It is not said, however, how earlier access to the material would have affected these matters and what lower offer would have been recommended. Therefore, the extent of prejudice to the plaintiff cannot be assessed with any precision.
  1. In essence, the position is that the second defendant applied far too late for permission to withhold surveillance footage that was relevant to the extent of the plaintiff’s incapacity and which also damaged his credibility. If the material had been disclosed then the plaintiff’s conduct of the matter and his offers to settle may have been different.
  1. The plaintiff was prepared to mislead doctors and exaggerate the extent of his disability in the interests of inflating his claim for damages. Because the second defendant did not obtain permission to withhold the surveillance reports it was in breach of its obligations under Division 1 of Part 1 of PIPA, and the discretion under s 48 is enlivened.  I am not in a position to conclude that earlier disclosure of the surveillance material would have resulted in settlement of the claims, for example, the acceptance of offers to pay nothing that were made by each defendant at the compulsory conference, or the defendants’ acceptance of a vastly reduced offer to settle by the plaintiff.  The second defendant’s default would have been cured by a more timely application. 
  1. Ultimately, I am disinclined in the circumstances to exercise my discretion under s 48 of PIPA to order that the second defendant, or for that matter the other defendants, should pay the plaintiff’s costs that were reasonably incurred by any default.  The plaintiff’s conduct in making and persisting in exaggerated and false claims does not disentitle him from the exercise of my discretion.  However, his reprehensible conduct does not incline me to exercise the discretion in circumstances where a more timely application by the second defendant would probably have resulted in the tape not coming to light until part way through the plaintiff’s cross-examination at trial. 
  1. Accordingly, I decline to exercise the discretion under s 48. The costs order as between the plaintiff and each defendant will be as I have previously indicated.

Costs as between defendants

  1. Section 318E of the WCRA provides:

“If an entity other than a defendant that participated in a compulsory conference is joined as a defendant in a proceedings for damages, the court may make an order about costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case.”

Rule 364 of the UCPR provides for a party to a contribution claim to make an offer to contribute, and states that the Court may take account of an offer to contribute in deciding whether it should order that the party on whom the offer to contribute was served should pay all or part of:

(a)the costs of the party who made the offer;  and

(b)any costs the party is liable to pay to the plaintiff.

  1. On 25 November 2008 the first defendant made an offer to pay 25 per cent of the plaintiff’s damages conditional on the second and third defendants paying the balance of the plaintiff’s damages and the plaintiff’s standard costs, if any. The offer did not state in terms the period it remained open for acceptance, but I shall assume that it remained open for acceptance for at least 14 days.[4]  Neither the second nor the third defendant accepted the offer.  However, the second defendant submits that it was at all material times prepared to accept the offer and this was communicated to the solicitors for the first defendant, and that the second defendant formally offered to contribute 37.5 per cent of the plaintiff’s assessed damages pursuant to an offer to contribute made under UCPR r 364.  The second defendant submits, and the third defendant made no submission in reply, that it was the refusal of the third defendant to agree to the above percentages that meant that the matter did not resolve. 
  1. The first defendant notes that there were offers to contribute between defendants, including an offer by the third defendant on 14 January 2010 to the first and second defendants to contribute $30,000, inclusive of costs and refunds. As the first defendant submits, that figure was inclusive of costs, and it is impossible to tell whether it represented an offer more favourable to the first and second defendants, bearing in mind the earlier offer by the first defendant, than the ultimate judgment. I accept the first defendant’s submission, and add that it is impossible for me to tell whether the offer of $30,000 inclusive of costs and refunds represents any particular percentage of the amount for which the plaintiff was prepared to settle at the time and whether, if instead, the third defendant had offered to contribute say 37.5 per cent towards the plaintiff’s claim, issues of contribution between the defendants pursuant to statute would have been resolved.
  1. The third defendant submits that the offers made between defendants should not have any bearing on the ultimate determination of costs, although it states that the offers made were more favourable to the parties who made them.
  1. Naturally, the third defendant relies upon my construction of the indemnity clause to submit that as between the second and third defendants it should have its costs of both defending the plaintiff’s claim, the contribution proceedings and the costs of its own proceedings against the second defendant on an indemnity basis. In various items of correspondence it late 2008 and early 2009 the third defendant called on the second defendant to indemnify it against the plaintiff’s claim pursuant to clause 7 of the contract between the second defendant and the third defendant.
  1. Absent the contractual indemnity clause, there would have been a compelling case to order the third defendant to pay the first defendant’s and the second defendant’s costs after the third defendant declined to accept offers made by the first and second defendants to contribute 25 per cent and 37.5 per cent respectively. These offers, in effect, required the third defendant to contribute 37.5 per cent of the plaintiff’s damages. In the end result, apportionment of liability was assessed against the third defendant in the amount of 60 per cent.
  1. The third defendant was entitled to take its chances that a judge would construe the indemnity clause in its favour, notwithstanding the substantial arguments available to the second defendant for a narrower interpretation of the indemnity clause. However, the fact that the third defendant’s construction of the indemnity clause was favoured by me is insufficient to justify the third defendant not being liable for the costs consequences of not accepting at least the first defendant’s offer to contribute 25 per cent. The defendants might have settled their differences by agreeing an apportionment of 25 per cent: 37.5 per cent: 37.5 per cent as between the first, second and third defendants respectively pursuant to s 6(c) of the Law Reform Act 1995, and subject to the separate determination of the question of construction in relation to the indemnity clause.  Instead, the defendants were represented at trial by three different counsel and three firms of solicitors, leading to an escalation of costs.
  1. The second defendant also took its chances concerning the construction of the indemnity clause and might have unilaterally accepted the first defendant’s offer to contribute 25 per cent towards the plaintiff’s claim. However, it at least responded to the first defendant’s offer to contribute 25 per cent by making its own offer to contribute the 37.5 per cent, being an amount greater than the 30 per cent apportionment determined against it.
  1. The first defendant made a reasonable offer to settle by offering to contribute 25 per cent of the plaintiff’s damages. The first defendant’s liability was apportioned at 10 per cent, and the first defendant is entitled to a favourable costs order based upon its offer to settle.  The issue, then, is whether the second or the third defendant, or both of them, should be ordered to pay the first defendant’s costs.  Whilst each of the second and third defendants made offers to contribute, I am not in a position to say whether the third defendant’s offer of 14 January 2010 to contribute $30,000 inclusive of costs and refunds was reasonable.  I take it into account the circumstances in which, as matters have transpired, the third defendant is entitled to be indemnified by the second defendant against the plaintiff’s claim and certain costs associated with the proceedings.  However, the third defendant’s offer does not permit one to say what amount the first and second defendants would have been required to contribute to settle the matter in January 2010.  There is no explanation as to why the third defendant did not make an offer to settle at an earlier time or why it did not attempt to negotiate a settlement in late 2008 which at least resolved contribution issues between the defendants on the basis of an apportionment of 25 per cent:  37.5 per cent:  37.5 per cent which was then on offer to it, subject to the separate determination of the construction of the indemnity clause.  In circumstances in which the second defendant made a reasonable offer to contribute 37.5 per cent in response to the first defendant’s offer to contribute 25 per cent, I consider that the appropriate order for costs as between the first defendant and the other defendants is that the third defendant pay the first defendant’s costs of and incidental to the proceedings, including the contribution proceedings, after 12 December 2008.
  1. Costs as between the second and third defendant are governed by the indemnity clause. The third defendant submits that it is entitled to have its costs of defending the plaintiff’s claim, the contribution proceedings and the costs of its own proceedings against the second defendant paid on an indemnity basis. The second defendant makes no submissions to the contrary. I should make clear, however, that the costs to which the third defendant is entitled pursuant to the indemnity clause do not include the costs that the third defendant is required to pay the first defendant. Whereas the indemnity clause requires the second defendant to indemnify the third defendant in respect of the plaintiff’s claim “and in respect of all costs and charges in connection therewith whether arising out of statute or common law”, I do not consider that the costs that the third defendant is required to pay the first defendant should be characterised as being costs in connection with the plaintiff’s claim. I appreciate that the words “in connection therewith” are potentially of wide import. However, I do not consider that they extend to costs that the third defendant has been required to pay the first defendant because of its own unreasonable refusal to accept the first defendant’s offer to contribute 25 per cent towards the plaintiff’s claim.

Orders

  1. The orders of the Court will be:
  1. There be judgment for the plaintiff against the first defendant in the sum of $18,828.12.
  1. There be judgment for the plaintiff against the second defendant in the sum of $21,244.
  1. There be judgment for the plaintiff against the third defendant in the sum of $21,244.
  1. There be no order as to costs as between the plaintiff and the first defendant, as between the plaintiff and the second defendant or as between the plaintiff and the third defendant.
  1. Subject to the contractual indemnity between the second and third defendants, it is declared pursuant to s 6(c) of the Law Reform Act 1995 that liability in respect of the plaintiff’s damages be apportioned 10 per cent against the first defendant, 30 per cent against the second defendant and 60 per cent against the third defendant.
  1. The first defendant pay its own costs of and incidental to the proceedings, including contribution proceedings, up to and including 12 December 2008, and that the third defendant pay the first defendant’s costs on the standard basis thereafter. 
  1. The second defendant pay its own costs of and incidental to the proceedings.
  1. It is declared that pursuant to clause 7 of the contract made between the second defendant and the third defendant that the second defendant is obliged to indemnify the third defendant in respect of the plaintiff’s claim including:

(a)the third defendant’s liability to pay damages to the plaintiff;

(b)the third defendant’s costs of defending the plaintiff’s claim;

(c)the third defendant’s costs of and incidental to proceedings for indemnity or contribution.

and that these costs be assessed on an indemnity basis.

  1. It is further declared that the third defendant is not entitled to be indemnified pursuant to clause 7 of the contract or pursuant to s 6 of the Law Reform Act 1995 by the second defendant in respect of the third defendant’s liability to pay the costs of the first defendant pursuant to Order 6 herein.

Footnotes

[1] Samways v WorkCover Queensland & Ors [2010] QSC 127.

[2] [2007] QCA 199 at [8].

[3] Coster v Bathgate [2005] Qd R 492; [2005] QCA 210 at [13].

[4] Cf UCPR r 355.

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Editorial Notes

  • Published Case Name:

    Samways v WorkCover Queensland & Ors (No 2)

  • Shortened Case Name:

    Samways v WorkCover Queensland (No 2)

  • MNC:

    [2010] QSC 273

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    30 Jul 2010

Litigation History

No Litigation History

Appeal Status

No Status