Austen v East Coast Yacht Finishing Pty Ltd (No. 2)
[2008] QDC 287
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- Unreported Judgment
- Austen v East Coast Yacht Finishing Pty Ltd (No. 2)[2008] QDC 287
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Austen v East Coast Yacht Finishing Pty Ltd (No. 2)[2008] QDC 287
Austen v East Coast Yacht Finishing Pty Ltd (No. 2)[2008] QDC 287
DISTRICT COURT OF QUEENSLAND
CITATION: | Austen v East Coast Yacht Finishing Pty Ltd & Anor (No. 2) [2008] QDC 287 |
PARTIES: | LESLIE CHARLES THOMAS AUSTEN (Plaintiff) v EAST COAST YACHT FINISHING PTY LTD (Defendant) and SHIPWORKS GROUP PTY LTD (Third party) |
FILE NO/S: | 685 of 2007 |
DIVISION: | Civil |
PROCEEDING: | Claim; third party proceedings |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 5 December 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 2008 |
JUDGE: | Robin QC DCJ |
ORDER: | Order that defendant pay third party’s costs refused |
CATCHWORDS: | WorkCover Queensland Act 1996 s 325 – plaintiff’s claim against employer dismissed – employer reasonably joined third party which was the operator of a ship yard where it was constructing the yacht on which the plaintiff was working as a shipwright – whether s 325 which precluded any costs order against the plaintiff also precluded the making of the order sought by the third party that the defendant pay its costs |
COUNSEL: | Stobie for the Plaintiff Myers for the Defendant Lane for the Third Party |
SOLICITORS: | McNamara & Associates for the Plaintiff Hede Byrne & Hall for the Defendant Hopgood Ganim for the Third party |
- [1]Reasons were published to the parties on 19 November 2008 for the court’s conclusion that the plaintiff’s claim failed. It had been foreshadowed at the end of the trial that in that event there would be a contest between the defendant and third party given that the third party issues would not required to be decided by the court, with the consequence that the third party proceedings failed.
- [2]Although, as just indicated, there was no occasion for detailed consideration of the third party’s liability, the relevant protagonists’ contractual arrangements were such that if the defendant had been liable to the plaintiff, the third party would probably have been liable to indemnify the defendant. The situation resembled that considered by the Court of Appeal in Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 Qd R 162. The outcome there, in the particular circumstances, which I think are closely reflected here, differed from the conventional one in which a successful third party gets its costs against the defendant. The defendant may well obtain an order against the unsuccessful plaintiff providing it with an indemnity. In appropriate cases, the defendant may be spared that intermediate liability, the order for costs of the third party being pronounced against the unsuccessful plaintiff directly.
- [3]Here, there are complications, one of which is the plaintiff’s bankruptcy. No order for costs made against him would be likely to bear fruit. More pertinently, the WorkCover Queensland Act 1996 provides in s 325:
“325 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 proceedings.
- (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 worker’s written final offer – an order that WorkCover pay the worker’s costs on the standard basis from the day of the written final offer;
- (b)if the amount of damages awarded is equal to or less than WorkCover’s written final offer – an order that the worker pay WorkCover’s costs on the standard basis from the day of the final offer.
- (3)If the award of damages is less than the claimant’s written final offer but more than WorkCover’s written final offer, each party bears the party’s own costs.
- (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.
- (5)If an entity other than the worker’s employer or WorkCover is joined as a defendant in the proceeding, 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.
- (6)The court may make an order for costs against the worker’s employer or WorkCover under subsection (5) only if –
- (a)the order is in favour of the entity; and
- (b)the workers employer or WorkCover joined the entity as a defendant.”
- [4]The successful defendant employer’s inability to obtain a costs order against the unsuccessful plaintiff employee was confirmed by the Court of Appeal in Sheridan v Warrina Community Co-operative Ltd [2005] 1 Qd R 187. It was common ground that the third party is a “defendant”. Notwithstanding the general rule precluding costs in subsection (1) (which I would take to apply, since I would regard the third party’s application for costs as made “in the claimant’s proceeding”), subsection (6) is satisfied by the third party, in the sense of the court’s discretion to make a costs order arising; Mr Myers’ argument is that subsection (5) controls and stands in the way of any such discretion arising, because there is no apportionment of “liability of the defendants” here.
- [5]I think that is the correct position. Even if it is not, there are factors bearing on the way in which the discretion should be exercised which tell against its being exercised favourably to the third party. It would seem odd if the third party, which I take to be the entity primarily responsible for safety in the relevant workplace, were the only party able to obtain its costs. I think I am entitled to take into account the inability of the defendant to obtain any recourse in respect of such costs against the plaintiff. It is worth noting, too, that the third party made the most of its opportunity to contest the plaintiff’s claim against the defendant (and did so effectively). While it is true that the plaintiff elected not to proceed himself against the third party, he might well have elected differently. I have the strong impression that the defendant here was “the meat in the sandwich” in effect. In the circumstances, it would seem odd, on a broad brush approach, if the only costs order made were to be one in the third party’s favour against the defendant. There will be no order as to costs.