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- Unreported Judgment
Smith v Woolwoorths Limited QDC 166
DISTRICT COURT OF QUEENSLAND
Smith v Woolwoorths Limited  QDC 166
DANIEL JOHN SMITH
2197 of 2014
District Court at Brisbane
Judgment delivered ex tempore 12 June 2015
12 June 2015
EMPLOYMENT LAW – injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant
COSTS – indemnity costs – when ordered – whether application made necessary by defendant’s taking a position contrary to all relevant authorities – whether defendant’s behaviour caused unreasonable delay.
Limitation of Actions Act 1974 (Qld) s 11
Uniform Civil Procedure Rules 1999 (Qld) rr 171, 703
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 275, 318C
Berhane v Woolworths Limited  QDC 194, followed.
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, followed
C Newton for the plaintiff
R C Morton for the defendant
Turner Freeman for the plaintiff
DLA Piper for the defendant
- This is an application pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”), seeking an order that paragraphs 3.1C to 3.1E.2, inclusive, of the amended defence (with the exception of paragraph 3.1E.1) be struck out.
- The application in pending proceeding is brought in the context of a claim for $750,000 in damages for personal injury and consequential loss, as a result of the alleged negligence of the defendant in circumstances where the plaintiff allegedly injured himself whilst working for the defendant as a night filler at its Taigum supermarket. The plaintiff submitted a notice of claim for damages, pursuant to s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”). Relevantly, the plaintiff stated in the notice:
“I say that my claim relates to the work I did for Woolworths at its Taigum store. I have had an accepted workplace back injury (20 March 2012) but I claim that the injuries I sustained were really the result of work practices over the whole period of performing night fill work at Woolworths’ Taigum store. The work I was performing on 20 March 2012 and 21 March 2012 was representative of the work practices which were performed over the period of my time working as a night fill assistant.”
- The passages of the amended defence the subject of the application, seek to preclude a claim in respect of a discrete injury on 20 March 2012, because of noncompliance with the pre-action statutory obligations of the WCRA and allege that a claim relying on this discrete injury is statute barred, pursuant to s 11 of the Limitation of Actions Act 1974.
- The pleading of these matters is clearly wrong at law. Recently, in Berhane v Woolworths Limited  QDC 194, McGill SC DCJ considered the same species of allegations, in the context of both Court of Appeal authority and single judge decisions of the Supreme Court of Queensland. In respect of Court of Appeal authorities, which he analysed, he stated at para :
“I am not aware of any subsequent decision of the Court of Appeal which modifies or overturns the effect of those two decisions. It seems to me that they clearly indicate that what matters for the purposes of determining whether the injury is one referred to in the notice of assessment is (relevantly) whether it is the same piece of physical damage to the body which is being spoken about…”
- He subsequently quoted from single judge decisions of the Supreme Court of Queensland and observed at :
“In my view, in circumstances where it is clear that there has only been one injury suffered, the effect of the authorities is that the date stated for the injury in the notice of assessment is irrelevant.”
- He subsequently observed that, from all the authorities he considered, there was no issue relating to the date of the injury in the context of the pleading before him, and he observed at :
“No authorities were cited or reasoning advanced on behalf of the respondent to cast any doubt on this line of authority, which supports the conclusion that as a matter of law the respondent’s position is not only wrong but misconceived.”
- Finally, his Honour observed at :
“In addition, given the number and clarity of the various authorities against the respondent’s position, it seems to me that this may be a matter for ordering cost to be assessed on the indemnity basis.”
- Berhane was a case where the same defendant was making allegations of the same type in the context of a workplace injury and the same solicitors that represent the defendant before me, were representing the defendant. I asked Mr Morton of counsel, who appears on behalf of the defendant, whether he could point to any authority which suggested that the law, as analysed by his Honour Judge McGill was incorrect, or that his Honour had misapplied it in some respect, or that on the facts before me, the authorities ought to be distinguished. He was unable to point me to any such authority. I therefore order that paragraphs 3.1C – 3.1E.2, inclusive, of the amended defence, with the exception of 3.1E.1, be struck out.
- I now turn to the question of costs. Pursuant to section 318C of the WCRA, an order “about costs for an interlocutory application” may only be made if the court is satisfied that “the application has been brought because of unreasonable delay by 1 of the parties”. It is submitted that the conduct of the defendant is such that an order for costs ought to be made against the defendant. It is further submitted that the order for costs ought to be on the indemnity basis.
- It is argued by Mr Newton, counsel for the plaintiff, that the obduracy of the defendant in persisting with parts of its defence which were identified in correspondence as being untenable, in circumstances where they are clearly wrong at law, warrants an award of costs pursuant to section 318C on the indemnity basis. The fact that I have been taken to no decisions of either the District Court or the Supreme Court which justify the paragraphs the subject of the application, and the fact that the defendant has persisted in resisting the relief sought in circumstances where a comprehensive analysis of its position completely debunked the assertions it makes, in circumstances where the same solicitors were representing it in Berhane, in my view, makes the application for indemnity costs an attractive one.
- Rule 703 of the UCPR makes provision for costs to be ordered to be assessed on the indemnity basis. In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 223, Sheppard J considered circumstances which warrant a grant of indemnity costs, and the making of allegations which ought never have been made certainly comes within this concept. I am therefore satisfied that the obduracy of the defendant in seeking to plead matters of defence for which there is, as the law currently stands no arguable basis, brings the question of indemnity costs into consideration.
- The only matters which concern me are the statutory restrictions on the awarding of costs pursuant to section 318C. There is no express provision for the awarding of indemnity costs pursuant to this section, and in order to award costs at all, I need to be satisfied that there has been unreasonable delay by the defendant.
- To deal with the first matter, the fact that section 318C does not expressly provide for indemnity costs has the consequence that the costs discretion in terms of whether an award can be made for standard costs or indemnity costs is unfettered. Obviously, the UCPR permit an award of indemnity costs, and the circumstances in which such an award is contemplated are not fettered pursuant thereto.
- The other issue is whether the pleading by the defendant of legally unsustainable matters of defence comes within the concept of unreasonable delay. Self-evidently, the plaintiff’s claim cannot be progressed to trial until the pleadings are closed. In my view, it is conduct causative of unreasonable delay to plead matters for which there is no legal basis, necessitating an application of the type that is before me in order for the claim to proceed beyond the closing of the pleadings.
- I am therefore satisfied that the interlocutory application before me has been brought because of unreasonable delay by the defendant in pleading matters for which there is no legal basis. In my view, this conduct enlivens my discretion to award indemnity costs, applying the principles enunciated in Colgate-Palmolive, and that it is appropriate, particularly given the statements made by McGill SC DCJ in Berhane, to award indemnity costs. I therefore order that the defendant pay the plaintiff’s costs of and incidental to this application on the indemnity basis.
- Published Case Name:
Daniel John Smith v Woolwoorths Limited
- Shortened Case Name:
Smith v Woolwoorths Limited
 QDC 166
12 Jun 2015