Woolworths Limited v Rodionov
[2011] QDC 169
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- Unreported Judgment
- Woolworths Limited v Rodionov[2011] QDC 169
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Woolworths Limited v Rodionov[2011] QDC 169
Woolworths Limited v Rodionov[2011] QDC 169
DISTRICT COURT OF QUEENSLAND
CITATION: | Woolworths Limited v Rodionov [2011] QDC 169 |
PARTIES: | WOOLWORTHS LIMITED (Applicant) AND ADAM BORIS RODIONOV (Respondent) |
FILE NO/S: | OA4058/10 |
DIVISION: | |
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 20 July 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Submissions in writing after 24 January 2011. |
JUDGE: | McGill DCJ |
ORDER: | The applicant pay the respondent's costs of and incidental to the application to be assessed |
CATCHWORDS: | COSTS – Power to Award – claim for damages for industrial accident – pre-litigation procedure – application to enforce obligations – whether restriction on costs applicable EMPLOYMENT LAW – Injury of Employee – claim for damages – application during pre-litigation process – whether restriction on costs Workers' Compensation and Rehabilitation Act 2003 ss 318A, 318C. ex parte Britt [1987] 1 Qd R 221 – cited. Clarkson v. Australia Meat Holdings Pty Ltd [2003] 2 Qd R 122 – cited. Edmunds v D Dunn Industries Pty Ltd (No 2) [2007] 2 Qd R 128 – cited. Karaka v. Woolworths Limited, Supreme Court, Daubney J, 15 June 2009, unreported, – cited. |
COUNSEL: | R C Morton for the applicant. C Harding for the respondent. |
SOLICITORS: |
- [1]This was an application to fix a date for a compulsory conference in a matter proceeding under the Workers' Compensation and Rehabilitation Act 2003 (“the Act”). The application came on before me on 24 January 2011 and I ordered that the compulsory conference be held within a certain period of time after a report from a Dr Campbell, which had been arranged by the respondent claimant's solicitors, had been obtained and was made available to the solicitors for both parties.
- [2]The question of costs was adjourned to a date to be fixed to enable the parties to address the effect on that issue of the relevant provisions of the Act, since neither side was in a position to address that issue at the time.
- [3]I subsequently received written submissions in relation to this matter from each of the parties; indeed I should say that those submissions were received quite promptly and it has been unfortunate that the matter has been overlooked by me until now. Both parties agree, and I accept, that the approach that I should adopt involves applying the Act with the benefit of the amendments made by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2010. The effect of that legislation was to repeal what had been section 316(4) of the Act and to insert relevantly sections 318A and 318C.
- [4]Section 318A provides "(1) A Court may make no order about costs to which division 1, 2 or 2A applies except the orders for costs provided for in the division. (2) Subsection 1 applies subject to this division.” Section 318C provides: “An order about costs for an interlocutory application may be made under division 2 only if the Court is satisfied that the application has been brought because of unreasonable delay by one of the parties."
- [5]It was noted in the submissions that there has been debate in the cases as to whether or not section 316(4), the previous provision, applied to an interlocutory application which was brought before the filing of the claim and statement of claim for damages. In the present case no proceeding claiming damages by the respondent has been commenced in the Court. The position is simply that the applicant made an application seeking the assistance of the Court in relation to what might be described as the pre-litigation procedures required by the Act to be undertaken before a proceeding can be commenced in a Court seeking damages in respect of an injury covered by the legislation.
- [6]The debate that occurred in relation to section 316(4) seems to have been directed to some extent to the question of whether an application in relation to the pre-litigation procedures was an interlocutory application, and that is understandable because the restriction contained in that subsection was expressed simply in terms of the costs of an interlocutory application.
- [7]The issue of whether an application was interlocutory for the purposes of that provision seems to have divided Judges between those who took the view that an order which finally determined the particular issue raised on an originating application dealing with the pre-litigation procedures was not interlocutory for the purposes of that provision, or whether it was an interlocutory order in terms of the conventional distinction between an interlocutory order and a final order which is frequently encountered in relation to restrictions on appeals against interlocutory orders. There are also issues which arise in a similar way in relation to the question of whether a second application can be made or whether the Court can be approached a second time seeking to have the same issue resolved.
- [8]The distinction between an interlocutory order and a final order in this sense was discussed in ex parte Britt [1987] 1 Qd R 221 by McPherson J as his Honour then was, and that analysis was applied in Edmunds v D Dunn Industries Pty Ltd (No 2) [2007] 2 Qd R 128 and in Karaka v. Woolworths Limited, an unreported decision of Daubney J of 15 June 2009.
- [9]A different view was taken in relation to the interpretation of the section in Clarkson v. Australia Meat Holdings Pty Ltd [2003] 2 Qd R 122. I'm not aware of any appellate decision on the point. The reasoning of Helman J in Clarkson was based on the proposition that Part 11 of the WorkCover Queensland Act 1996, the legislative predecessor of the 2003 Act, which contained similar provisions, was only concerned with regulating costs in relation to proceedings for a claim for damages by a claimant.
- [10]The effect of the 2010 amendment is, it seems to me, to clarify the situation by adopting the analysis in Clarkson. This follows from the terms of sections 318A and 318C. The former section excludes orders for costs only where they are orders for costs to which division 1, 2 or 2A applies. It follows that section 318A does not exclude orders for costs in other circumstances.
- [11]Division 1 - that is division 1 of part 12 in which section 318A appears - deals with a situation where the claim of a claimant referred to in section 310 is heard and determined. Division 2 deals with a situation where an order is being made by the Court "in the claimant's proceeding" where the claimant is within section 315.
- [12]Again this is talking about the proceeding litigating a claim for damages. This appears from the content of subsections (2) and (3) of section 316 which is the operative provision in division 2. But if there is any ambiguity about it, it is removed by the terms of section 240(3) of the Act. That provides that in a situation where section 315 would apply "part 12 division 2 applies in relation to costs in the claimant's proceeding for damages."
- [13]Accordingly it is clear, when one considers the Act in its amended form as a whole, that division 2 is concerned only with costs in the claimant's proceeding for damages. It follows that it is not concerned with costs in an application by the claimant or indeed anyone else seeking to enforce the obligations under the pre-litigation proceedings in the legislation. I should add for completeness that division 2A is concerned with proceedings in the Court that relate to a contribution claim and that is obviously not relevant as well.
- [14]It follows therefore that the application which is before me is not an application to which division 1, 2 or 2A applies, and an order for costs in the application before me is not an order about costs which is within section 318A.
- [15]As well, section 318C speaks about a restriction on costs for an interlocutory application made under division 2. An order for costs is only going to be made under division 2 if it is an order for costs in the claimant's proceeding for damages. Since this is not the claimant's proceeding for damages, this application, assuming it is interlocutory, is not an interlocutory application made under division 2, or an interlocutory application made in a proceeding covered by division 2, and therefore an order for costs in this application, assuming it is interlocutory, is not an order made under division 2.
- [16]Accordingly the restriction on awarding costs imposed by section 318C does not apply to this application, or in my view to any application seeking to enforce or to facilitate the completion of the pre-litigation restrictions in the Act.
- [17]As one would expect in the circumstances the effect of the amendment to the legislation in 2010 was to resolve the dispute that had arisen between a number of single-Judge decisions in favour of the analysis in Clarkson.
- [18]It follows therefore that the special statutory provisions in the Act dealing with the question of costs do not apply. In those circumstances I do not need to comment on the issue which was to some extent raised in the submissions before me as to the true interpretation of the restriction in section 318C. Costs are therefore to be determined on ordinary principles.
- [19]The application sought an order that the date for the compulsory conference be fixed in the near future. The substantial issue between the parties on the hearing of the application, as appears from my ex tempore reasons on 24 January 2011, was whether the conference should be delayed until after the respondent had obtained the report from Dr Campbell, and the outcome of the dispute in that sense was in favour of the respondent. Essentially the respondent was the successful party in the dispute before me. It follows, if one applies the ordinary principle that costs follow the event, the respondent should receive the costs of the application.
- [20]No reason has been shown on behalf of the applicant why that situation should be departed from. Although it was submitted that there was a delay of some nine months in seeking the opinion of Dr Campbell in circumstances where there had previously been an opinion obtained from an orthopaedic surgeon dealing with, as I said, the particular issue in question, one of the matters that I dealt with in my earlier reasons was whether it was reasonable or unreasonable to seek the opinion of Dr Campbell. There was perhaps some delay in seeking it but as I indicated on the earlier occasion there had been some delay by each of the parties in the course of the pre-litigation proceedings, and the real issue was whether in circumstances where the applicant knew that the respondent was seeking to delay the conference until the report from Dr Campbell which had been sought had been obtained, it was appropriate for the respondent to make the application to try to force on the conference sooner than that.
- [21]The applicant having lost on that issue it seems to me that any delay in seeking the report from Dr Campbell is not a reason why I should depart from the ordinary principle that costs follow the event. There will therefore be an order that the applicant pay the respondent's costs of and incidental to the application to be assessed.