Lincoln v Qantas Airways Limited (No. 2)
[2012] QDC 351
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- Unreported Judgment
- Lincoln v Qantas Airways Limited (No. 2)[2012] QDC 351
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Lincoln v Qantas Airways Limited (No. 2)[2012] QDC 351
Lincoln v Qantas Airways Limited (No. 2)[2012] QDC 351
DISTRICT COURT OF QUEENSLAND
CITATION: | Lincoln v Qantas Airways Limited (No. 2) [2012] QDC 351 (delivered ex tempore) |
PARTIES: | PAUL LINCOLN v QANTAS AIRWAYS LIMITED |
FILE NO/S: | BD3864/11 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 20 November 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2012 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | WORKERS COMPENSATION – costs - construction of statute – whether relevant application was an ‘interlocutory application’ within the meaning of the Act Legislation: Workers Compensation and Rehabilitation Act 2003 s 318C Cases: Kidd v. Toll North Proprietary Limited [2012] QSC 220, considered Woolworths Limited v. Rodionov [2011] QDC 169, considered |
COUNSEL: | Mr Charrington for the Applicant/Plaintiff Mr O'Neill for the Respondent/Defendant |
SOLICITORS: | Maurice Blackburn Lawyers for the Applicant/Plaintiff HWL Ebsworth Lawyers for the Respondent/Defendant |
- [1]The applicant made an application seeking a declaration and an order. On 31 August 2012, I made the declaration he sought and made the order he sought; that is, I declared that he was entitled to seek damages pursuant to section 237(1)(a)(i) of the Workers’ Compensation and Rehabilitation Act 2003 and section 253(1)(a)(i) of the WorkCover Queensland Act 1996 for the back injury specified in his notice of claim dated 13 September 2011. I also ordered the defendant issue a damages certificate in respect of the injury pursuant to section 265 of the WorkCover Queensland Act.
- [2]I delivered my reasons on 31 August 2012. Either one or both parties had asked prior to my delivering my reasons that they have time to consider my reasons before making submissions for costs, therefore I adjourned the further hearing of the question of costs. Today, the 20th of November 2012, became the date the parties were prepared to make their submissions on costs.
- [3]The applicant submits that the application that I heard was about the pre-litigation position under the legislation and was not an interlocutory application within the meaning of section 318C of the Workers’ Compensation and Rehabilitation Act 2003. Alternatively, the applicant submits if section 318C applies because the application was in the nature of an interlocutory application then that would regulate any award of costs that I might make in this matter.
- [4]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]The applicant relies on two decisions: one is the matter of Kidd v. Toll North Proprietary Limited [2012] QSC 220, a decision of Justice P Lyons; the other is Woolworths Limited v. Rodionov [2011] QDC 169, a decision of his Honour, Judge McGill.
- [6]The applicant readily accepts that in both Kidd and Rodionov the applicant had not commenced proceedings; that is, proceedings were not on foot as they are in the present matter. Nevertheless, the applicant submits that the application related to pre-litigation procedures and was not subject to the limitation of section 318C. In Kidd, Justice P Lyons said,
“Because section 318C is a qualification of the Court’s power to order costs in the claimant’s proceedings, in my view it applies only to an interlocutory application in such proceedings. There being no such proceedings on foot, the qualification does not apply.”
- [7]The application in Kidd was for orders that the respondent was required by section 279 of the Workers’ Compensation and Rehabilitation Act 2003 to answer a number of requests for information. Some requests, they were held by his Honour to be premature.
- [8]In Woolworths Limited v. Rodionov, in paragraph 5, his Honour, Judge McGill, noted that in the case before his Honour, no proceeding claiming damages had been commenced in the Court. He noted the position was simply that the applicant made an application seeking the assistance of the Court in relation to what might be described as pre-litigation procedures required by the Act to be undertaken before a proceeding can be commenced in the Court seeking damages in respect of an injury covered by the legislation. In that case, his Honour, Judge McGill, ordered that a compulsory conference be held within a certain period of time after a report from a doctor, which had been arranged, had been made available to the solicitors for both parties.
- [9]In the present matter, the respondent submits that the Court’s ability to order costs is constrained by part 12, and in particular, division 3, of the Act; that is, section 318C applies to this application. Further, that there has been no unreasonable delay on the part of the respondent to warrant making an order costs against it. Even if the power to order costs arises, the respondent submits I would make no orders to costs as the respondent has acted reasonably in the circumstances. Part of those circumstances has been the change in the applicant’s position in respect to what he alleges to be the cause of his injury, namely, a specific event in the first instance compared to a over period of time injury in his later position.
- [10]The respondent also submits that the solicitor for the applicant seemed to accept, in correspondence, that section 318C would apply and that no costs would be recoverable.
- [11]In the applicant’s Workers’ Compensation claim, he stated he suffered a back injury while performing normal duties; for example, pushing and pulling barrows, stepping on and off tug, lifting and moving bags over a two day period, the pain got worse. He said his symptoms started two to three days before. He said the date of the accident was the 13th of September 2010. His notice of assessment that was issued described the date of injury as 13 September 2010, his injury was a disc prolapse and the degree of permanent impairment attributable to the injury was 10 per cent.
- [12]To the question whether a notice of assessment had been received, he answered “No,” but later his solicitor amended the response to say that a notice of assessment had been received, by answering “Yes.”
- [13]The applicant’s solicitor served the applicant’s notice of claim for damages on an urgent basis. In that notice, the applicant was claiming an injury occurring on/between 1 December 1994 and 1 October 2008. In the same document, the applicant’s solicitors notified the respondent that the limitation period was due to expire.
- [14]The respondent replied to the applicant’s solicitors by letter dated 23 September 2011 noting the changes to the applicant’s position. The parties therefore, in these circumstances, were in dispute about the applicant’s injury and the cause of it. The applicant did commence the proceedings on an urgent basis with leave from his Honour, Judge McGill, on 3 October 2011. In the statement of claim, the applicant states that he sustained an injury over a period of time during the course of his employment, with the defendant, between 10 December 1994 and 6 October 2010, hence the application seeking the declaration and the order I have referred to earlier in these reasons. In the end, even though in Woolworths Limited v. Rodionov and Kidd v. Toll North Proprietary Limited proceedings had not been commenced, I consider in the present matter, notwithstanding proceedings have been commenced, the application that came before me related to pre-litigation procedures. The applicant could not proceed further without the declaration and order I made.
- [15]I consider the proceedings that have been commenced by the applicant are incidental to the application brought by the applicant which I decided on 31 August 2012, therefore I hold that section 318C of the Act does not constrain the Court’s power to award costs in this application. I hold the application that was before me was not an interlocutory application. Therefore, I hold that in this matter costs should follow the event. I do not accept the changing position of the applicant regarding the cause of his injury or the applicant’s solicitor’s concession should lead me to make a different order. That is because I consider the respondent was opposed to the application in any event.
- [16]It was submitted that the respondent has acted reasonably. I do not cavil with that in the sense that the respondent made submissions and referred to authorities, however I consider that should not alter the basic position here which is that costs should follow the event.
- [17]A submission was also made by the respondent that there was no real necessity for an appearance by the parties to argue the question of costs, that it could have equally been well addressed on the papers by the party providing written submissions. I consider it was appropriate to adjourn to another date for the argument on costs. I would not agree myself to having written submissions only. It occurs to me at times there is a need to have the parties present if a question arises regarding the written submissions.
- [18]In the circumstances, I order the respondent to pay the applicant’s costs of the application including today’s costs to be paid on the standard basis.