Delacour v Australia Meat Holdings Pty Ltd (No. 2)
[2005] QDC 169
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- Unreported Judgment
- Delacour v Australia Meat Holdings Pty Ltd (No. 2)[2005] QDC 169
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Delacour v Australia Meat Holdings Pty Ltd (No. 2)[2005] QDC 169
Delacour v Australia Meat Holdings Pty Ltd (No. 2)[2005] QDC 169
![Delacour v Australia Meat Holdings Pty Ltd (No. 2) [2005] QDC 169](/judgmentview/image?name=316146.001.png&id=316146)
DISTRICT COURT OF QUEENSLAND
CITATION: | Delacour – v – Australia Meat Holdings Pty Ltd (No.2) [2005] QDC 169 |
PARTIES: | DELACOUR, John Raymond Plaintiff Against AUSTRALIA MEAT HOLDINGS PTY LTD Defendant |
FILE NO: | 344/02 |
PROCEEDINGS: | Claim for damages for personal injury suffered in the workplace. Judgment on costs |
DELIVERED ON: | 21 June 2005 |
DELIVERED AT: | Townsville |
HEARING DATES: | 4 – 8 October 2004, 29 March – 1 April 2005. Written submissions on costs received on 24 & 25 May 2005. |
JUDGE: | C.F Wall Q.C |
ORDERS: | Defendant pay the plaintiff’s party and party costs of the proceedings as from 10 September 2002. |
CATCHWORDS: | COSTS – ASSESSMENT – plaintiff successful in personal injuries action against employer – offer to settle made by plaintiff on 10 September 2002 pursuant to s. 294 WorkCover Qld Act – later written offer to settle made on 28 June 2004 – meaning of ‘written final offer’ in ss.294 and 325(2) WorkCover Qld Act – plaintiff entitled to costs from the day of his written final offer of settlement made pursuant to s. 294 COUNTERCLAIM AND SET-OFF – no costs order made in respect of defendant’s counterclaim and set-off – effectively part of “the claimant’s proceeding” for purposes of s. 325 (1) INDEMNITY COSTS – no discretion under s. 325 to award indemnity costs Cases referred to: Clarkson v Australia Meat Holdings Pty Ltd [2002] QSC 347 (CON) Sheridan v Warrina Community Co-Operative Ltd [2004] QCA 308 (CON) Goodchild v Private Health Services Proprietary Ltd unreported, no. 4022 of 1999, 31 May 2002, Wylie QC, DCJ (DIS) Legislation referred to: WorkCover Queensland Act (Qld) 1996 s. 293, 294, 325(1), (2)(a) & (4) Uniform Civil Procedure Rules rr. 173 & 177 |
COUNSEL: | Mr M. Drew for the Plaintiff Dr G. Cross for the Defendant |
SOLICITORS: | McDonald Leong for the Plaintiff Abbott Tout Lawyers for the Defendant |
HIS HONOUR: On the 11th of May 2005 I gave judgment for the plaintiff against the defendant for $250,000. Quantum only was in issue, liability having been admitted at 2.30 p.m. on the 9th and last day of the trial. The trial commenced on the 4th of October 2004.
A compulsory conference pursuant to section 293 of the WorkCover Queensland Act 1996 (the Act) was held on the 10th of September 2002 and was not successful in settling the plaintiff's claim. At the conclusion of the compulsory conference, the following offers to settle were made on the 10th of September 2002 by each party pursuant to section 294 of the Act:
Plaintiff - $120,000, clear of the WorkCover refund, no costs
Defendant - $22,000, clear of the WorkCover refund, no costs
Neither offer was accepted and the plaintiff commenced the proceeding on the 25th of September 2002.
Regard must be had to these offers in making a decision about costs, section 294(6). Later offers to settle made by the defendant were less than the judgment sum. Later written offers to settle by the plaintiff are as follows, the second being a Calderbank offer:
- 23rd of January 2004, $150,000 clear of the refund to the defendant and WorkCover Queensland, open for seven days.
- 28th of June 2004, $180,000 clear of the refund to the defendant inclusive of costs but not inclusive of other statutory refunds to Centrelink and the Health Insurance Commission.
The plaintiff suffered a "non-certificate injury" and the relevant section of the Act in relation to the costs of the proceeding is section 325.
Section 325(1), (2)(a) and (4) provide as follows so far as is relevant to the present circumstances:
"325 (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 party to the proceeding makes a written final offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for -
- (a)if the amount of damages awarded is equal to or more than the workers' final offer - an order that WorkCover pay the worker's party and party costs from the day of the final offer;
- (4)An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties."
The defendant is a self-insurer but the provisions of the Act apply mutatis mutandis as if it were WorkCover. The plaintiff was injured on the 22nd of September 2000. "Written final offer" in section 325(2) is not defined and as such it should be given its ordinary meaning having regard to the relevant legislative framework in which the term appears. In one sense the written final offer made by the plaintiff was made on the 28th of June 2004, but that may not be what the legislation regards as the written final offer for the purposes of section 325(2).
It is a little difficult to reconcile section 294(6) with section 325, unless the written final offer referred to in the former is the same as that referred to in the latter. The latter appears to be the governing provision when it comes to making a decision about the costs of the proceeding, but the former is the provision which specifically mentions a "written final offer" which term is then later used in section 325.
Two decisions are referred to by the defendant in relation to section 325 and I agree with what is said in both.
In Clarkson v. Australia Meat Holdings Pty Ltd [2002] QSC 347, Helman J said:
"As I construe the scheme the restrictions on orders for costs provided for in Part 11 of Chapter 5 applied only in a proceeding for damages by a claimant. Once such a proceeding has been begun, Part 11 applied to it. Part 11 constituted a code which restricted the awarding of costs to the circumstances provided for in that part." (at para 5)
In Sheridan v. Warrina Community Co-Operative Ltd [2004] QCA 308, Williams JA made the following observations about the section:
"Firstly, the wording of subsection (1) is clear; there is no room for any ambiguity. Secondly, the section is not limited to directing the court as to how costs are to be awarded depending upon the relationship between the quantum of damages awarded by the court and the amount of each party's final offer. In that regard the section must be contrasted with the provisions found in Division 1; there the provisions are limited to directing the court as to the approach to the awarding of costs depending upon the relativity between each party's final offer and the amount of damages awarded by the court or where WorkCover denies liability (or admits liability or not more than 25%) when WorkCover's liability as established in the proceeding exceeds 75%. The scope of operation of s. 325 is highlighted by subsection (4) which deals with all the interlocutory applications brought in the proceeding. Thirdly, subsection (5) expressly allows the court to make an order about the costs of a defendant to the proceeding other than the employer represented by WorkCover. The subsection makes it clear that the order about costs can either be in favour of or against that other defendant. It follows that s. 325 is an all embracing provision as to costs and is much more restrictive than Division 1. It is also significant that there is no equivalent of s. 321(4) found in Division 2; that subsection provides: 'In any other case, the court may make an order about costs as it considers appropriate.'"
The defendant submitted that under section 325(2)(a) the only order which can be made is that the defendant pay the plaintiff's party and party costs of the proceeding from the 28th of June 2004. That submission, whilst superficially attractive, fails to give any operative effect to section 294(6).
Mr Drew submitted:
"However, Section 325(1) makes it clear that no order about costs other than an order allowed under this section, is to be made by the Court in the Claimant's proceeding. The Defendant's Counterclaim and Set-Off was not part of the Claimant's proceeding. The Section does not cover an employer's Counterclaim and Set-Off. Costs are therefore a matter of discretion and the primary rule of 'costs following the event' applies.
It is submitted that the Defendant, having conducted a Counterclaim and Set-Off unsuccessfully in the circumstances set out above, has exposed itself to an order for indemnity costs."
He then referred to the various offers made by each party and made the following submission:
"Having regard for these offers, it is submitted that an order for indemnity costs should be made, both in relation to the liability and quantum parts of the case in all the circumstances."
In his written submissions in response to the defendant's written submissions Mr Drew submitted that the written offer by the plaintiff dated the 28th of June 2004 did not constitute the written final offer by the plaintiff for the purposes of section 325(2) because it was not an offer contemplated by the Act. He made the following submission:
"The Section 294 provisions are, therefore, inextricably linked with the costs provisions of Part 11 and the 'written final offer' referred to in Section 325(2) can only be a reference to the 'written final offer' filed in Court pursuant to Section 294 of the Act.
The submission that a later written offer made outside the context of the compulsory conference provisions of Chapter 5 Part 6 is a 'written final offer' for the purposes of Section 325(2), is wrong."
I think there is force in these submissions. Section 294 provides as follows:
"Parties to make written final offer if claim not settled at compulsory conference
- (1)If the claim is not settled at a conference, each party must make a written final offer at the conference.
- (2)The final offer must remain open for 14 days and proceedings must not be started while the offer remains open.
- (3)If the claimant brings a proceeding in a Court for the claim, the claimant must, at the start of the proceeding, file at the Court a sealed envelope containing a copy of the claimant's offer.
- (4)WorkCover must, after being served with the legal process that starts the proceeding, file at the Court a sealed envelope containing a copy of WorkCover's offer.
- (5)The Court must not read the offers until it has decided the claim.
- (6)However, the Court must have regard to the offers in making a decision about costs."
If the defendant's submission is correct, no sensible operation or effect could be given to section 294 in the context of making a decision about costs of the proceeding. If the plaintiff's written final offer for the purposes of section 325(2) was that made on the 24th of June 2004, section 294 would be rendered meaningless and that cannot be a result contemplated by the legislature. The two provisions are capable of operative effect in the area of costs of a proceeding only if the written final offer referred to in section 325(2) is that referred to in section 294. I should add that in my view the term "workers' final offer" in paragraph (a) of section 325(2) is but an abbreviated form of "written final offer" used earlier in the subsection in much the same way as the latter term in section 294(1) is abbreviated in section 294(2) to (6).
The defendant has referred to some remarks made by Judge Wylie QC in Goodchild v. Private Health Service Proprietary Limited, unreported, number 4022 of 1999, 31st of May 2002. The end result there was different to that in the present case and the issues raised before me were not raised before or addressed by Judge Wylie. In the circumstances I do not find that the decision assists in the resolution of the issues I have to determine. If Judge Wylie in fact interpreted "written final offer" as including an offer independent of an offer made pursuant to section 294, then I am unable, with respect, to agree with his Honour.
In my view, the plaintiff is entitled to his costs of the proceeding as from the day of his written final offer of settlement under section 294 namely the 10th of September 2002.
It is also necessary to consider whether the defendant's counterclaim and set-off are encompassed by the words in section 325(1) "in the claimant's proceeding".
The defendant's counterclaim alleged that any injury or consequential loss or damage suffered by the plaintiff was caused or contributed to by the plaintiff's breach of contract, negligence and/or breach of statutory duties (paragraph 6) and by paragraph 7 it sought to set-off "all counterclaims against the plaintiff's claim for damages".
Rule 177 of the Uniform Civil Procedure Rules is in the following terms:
"177 In a proceeding, the defendant may make a counterclaim against a plaintiff instead of bringing a separate proceeding."
Rule 173 provides, so far as is relevant:
"173 A defendant may rely on set-off as a defence to all or part of a claim made by the plaintiff whether or not it is also included as a counterclaim."
A set-off is a defence to an action by way of a cross-claim. A counterclaim is an independent claim by the defendant against the plaintiff made in the proceeding commenced by the plaintiff. In the present case there would have been no counterclaim had it not been for the plaintiff's proceeding. The issues raised in defending the plaintiff's claim were identical to those relied upon in support of the defendant's counterclaim and set-off and no extra time was involved in litigating them.
In my view the counterclaim and set-off were, in the circumstances of this case, litigated in and effectively part of "the claimant's proceeding" for the purposes of section 325(1) and for that reason no additional or separate or different order for costs is able to be made in respect of them.
In these circumstances section 325(2)(a) covers the field and limits the plaintiff's entitlement to costs in the manner stated in the subsection. There is I consider no discretion to award indemnity costs. Section 325(1) also effectively excludes the application of those provisions of the Uniform Civil Procedure Rules relating to offers to settle and costs.
Mr Drew also submitted that the defendant should be ordered to pay the plaintiff's costs of two interlocutory applications made by the defendant on both of which the plaintiff succeeded and on which costs were reserved. The applications were filed on the 17th of September 2004. Section 325(4) deals with costs of interlocutory applications.
In my view, neither application was brought because of unreasonable delay by the defendant, whatever that term means in the context of an application where delay is not a relevant consideration. Both applications, in particular that which sought leave for certain doctors to give evidence by telephone, were part of the lead up to the trial and the plaintiff's costs in resisting them should I think be included as part of his costs of the proceeding generally to which he is clearly entitled.
I order that the defendant pay the plaintiff's party and party costs of the proceeding as from the 10th of September 2002.