Fox v State of Queensland[2016] QDC 1

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11.12.2015, I heard cross-applications by each party which, with a little assistance of the Court, resolved into a consent order which essentially adopted the orders sought by the Defendant in its application filed 7.12.15 with common-sense changes to meet the practical requirements of the Plaintiff’s expert Mr O'Sullivan. The orders made also dispensed with the need to file a further request for trial date and listed the trial for a 4 day hearing commencing 30.5.16. The defendant did not seek costs, however the plaintiff does seek its costs of its application filed 8.12.15. I indicated that my view was that as there had been no “unreasonable delay” on the part of the defendant, the plaintiff was not entitled to its costs. Mr Nielsen on behalf of the plaintiff asked for reasons which I had hoped I would deliver before the Court rose for the Christmas break on the 18.12.15. That turned out to be a vain hope due entirely to the pressure of work in that week.

Brief background

2. [2]
   The plaintiffs claim from damages is governed by the Workers’ Compensation and Rehabilitation Act 2003 (the Act). On 12.3.12, she alleges that she sustained injuries in the course of her employment as a Nursing Assistant at Nambour General Hospital. Her claim was filed on 29.4.14.

3. [3]
   The original Statement of Claim sets out what the Plaintiff alleges occurred which caused her injuries. She alleges she was assisting an enrolled nurse to turn a patient in “bed 2, room 2, in Department 1 – C” which (in part) involved the enrolled nurse “pulling up the bed rail on her side of the bed” such that “it pushed the air mattress further to the side of the bed where the plaintiff was standing”. She pleads that the enrolled nurse directed her to “expedite the task and thereupon left the room”, and that she then “lowered the patient” and sustained an injury particularised in paragraph 4.

4. [4]
   The litigation proceeded with much alacrity, and, on 20.10.14 a Request for Trial Date, prepared by the Plaintiff’s Solicitors, was filed, in which both parties certified (among other things) that “the proceeding is ready for trial within the meaning of UCPR r 467(4) and all necessary steps in the process are complete”.

5. [5]
   Given the plaintiff’s stance now, it is helpful to remember that “ready for trial” is given some definition by r 467(4), and includes at (d) that “as far as the party is concerned, all necessary steps in the proceeding (including steps to obtain disclosure or inspection of documents …) are complete”. It follows that the plaintiff, by her lawyers, was therefore certifying that there were no extant disclosure issues. Certifying accordingly is not some mere formality. The Courts rely on such requests to be accurate and act on them, as the Court did here in listing the trial in early 2015.

6. [6]
   The trial did not proceed. The plaintiff produced a report from Edge Rehabilitation, after the Request for Trial date had been filed and this lead to an adjournment of the trial. The plaintiff no longer relies on that report, instead, she has retained Mr O'Sullivan who is a qualified ergonomist and safety consultant.

7. [7]
   Acting on instructions from the Plaintiff, her Solicitors made a request on 30.4.15 that Mr O'Sullivan inspect (pursuant to UCPR r 250) “a bed and mattress of the same type and dimensions being used by our client at the time …”. The plaintiff’s instructions were that the mattress on the bed was an air mattress. The inspection took place on 15.6.15 and Mr O'Sullivan provided a report on 7 August 2015. He examined 3 types of air mattresses in a storage basement at the hospital. The defendant commissioned its own expert report from Dr Frank Grigg who inspected both air mattresses and a “conventional mattress” on 18 May 2015, and his report is dated 18 August 2015.

8. [8]
   On the 25 June 2015, at the request of the plaintiffs’ lawyers, the Defendant disclosed documents including a nursing plan for the patient in department 1 – C, Room 2 – Bed 2 on the relevant dates. This document suggested that the mattress was “std” which the defendant’s solicitors advised was a “standard mattress” not an air mattress. This “late disclosure” is now said to be the relevant “unreasonable delay” upon which the plaintiff bases her application for costs.

9. [9]
   At paragraph 4 of his written outline, Mr Nielsen for the plaintiff is, by implication, critical of the defendant for making this “late disclosure” after signing the Request for Trial Date in October 2014. This submission completely overlooks the fact that his instructing solicitors also signed the Request. The Statement of Claim clearly particularises the exact location of the relevant patient at the time of the alleged incident, and there is nothing in the material to explain why the plaintiff’s lawyers did not seek disclosure of documents relevant to that particular patient prior to signing the Request. I think I can fairly infer that because the plaintiff’s instructions (as reflected in the pleading) were then so precise, her lawyers were anxious to get the matter on for trial quickly.

10. [10]
    As a result of Dr Grigg’s report and the details in the nursing case plan, on 15 October 2015, the plaintiffs lawyers requested “a further inspection take place which would solely relate to testing a foam mattress on the basis of a Medicraft bed”. Up until then, in correspondence, the plaintiff was maintaining that it was an air mattress involved in the incident. In its correspondence dated 24 June 2015, the defendants’ solicitors had invited the plaintiff to amend her Statement of Claim. In the face of that invitation, she maintained her position.

11. [11]
    The earlier inspection by Mr O'Sullivan on 15.6.15 was on the basis of 10 conditions stipulated in a letter from the defendant’s solicitor dated 4 May 2015. There is no suggestion that the inspection did not proceed smoothly.

12. [12]
    The second inspection was arranged for 12 November 2015. It did not go well for a variety of reasons none of which are now relevant to the issue of costs because the plaintiff does not allege that the relevant “unreasonable delay” occurred at this point. Mr O'Sullivan was late (due to a number of reasons); there is an unresolved dispute about how long he said he needed to inspect what in fact were 3 mattresses and 2 bases presented by the defendant as being relevant for inspection; and the defendant’s solicitor imposed a time constraint on the inspection, which it is conceded was not a pre-condition for the inspection. Mr O'Sullivan terminated the inspection on the basis that he would not have enough time to complete his work.

13. [13]
    This lead to the 2 applications before me on 11.12.15. The first in time by the defendant was for further directions but provided for a further inspection by Mr O'Sullivan. The second in time, by the plaintiff was for an order that the defendant pay the plaintiff’s costs thrown away as a result of the failed inspection. Sensibly, the plaintiff did not pursue the substantive relief, as even the brief summary above shows, the failed inspection of the 12 November was attributable to both parties.

14. [14]
    The plaintiff did amend her Statement of Claim on 22.10.15. Her primary position is that it was an air mattress involved. Indeed the new pleading at 7A places some emphasis on the need for an air mattress for the particular patient. In 8A(b) however, she pleads in the alternative that this was a standard mattress.

The law

15. [15]
    It is common ground that Part 12 of Chapter 5 (Access to Damages) of the Act applies to the issue of costs. Both parties agree that s 318C applies:

“An order for 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 1 of the parties”.

16. [16]
    Section 318C was introduced by amendments made by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010. In conceding that s 318C governs the costs application, Mr Nielsen is correct as s 318A makes clear.

17. [17]
    There are many decisions both in this Court and the Supreme Court dealing with the predecessors of these provisions and some that deal with these provisions but only in relation to applications made at the pre-litigation stage.^[1] The only decision that Mr Nielsen could locate that deals with s 318C in the situation here, i.e. once a claim has been commenced is a decision of his Honour Judge Farr SC.^[2] In an earlier decision^[3], in the context of a claim filed 16.12.11, his Honour had determined an application filed in the course of those proceedings by the application/plaintiff, and determined it partly in favour of each party and sought submissions on costs. In the later decision, he decided that s 318C governed the costs issue and found, as a matter of fact, that although the respondent had unreasonably delayed in relation to one aspect of the application – to quote him “the respondent’s delay was unreasonable and the application for an order to produce was brought because of that delay”; otherwise the respondent had not unreasonably delayed, and had been fully successful in one aspect of the proceeding, therefore he made no order as to costs.

18. [18]
    In his oral submissions (and not in his written outline) Mr Nielsen conceded that because of s 318C he could not pursue an application for costs of his clients application; nevertheless he submitted that his client should nevertheless succeed on her application that she be granted her costs thrown as a result of the aborted second inspection. When put like that, it is obviously a novel proposition that s 318C would prevent his client from seeking costs even if her application was successful.

19. [19]
    His client’s application was clearly an interlocutory application in the conventional sense in that it was made in the course of the proceedings and could not have the effect of bringing the proceedings to an end. Section 318C therefore applied, and given what occurred at the inspection, this explains why Mr Nielsen resorted to the “late disclosure” issue as evidence of “unreasonable delay”. His reference to paragraph 9 of Judge Farr’s decision^[4], to the effect that an order for costs is discretionary and involves a determination of what is fair and just in the circumstances, is no more than a reference to the conventional approach to the exercise of the costs discretion; which in that case included a finding that at least in one respect, a party had unreasonably delayed. As his Honour’s reference to the factual finding of unreasonable delay implies, there must be a temporal connection of some sort between the “interlocutory application” and “unreasonable delay”; otherwise the costs discretion is constrained by the clear wording of the section. It is only if the court is satisfied “that the application has been brought because of unreasonable delay” that the discretion to award costs is enlivened.

20. [20]
    Clearly there is no connection at all between the disclosure of the nursing care plan and the application for an order for costs thrown away as a result of the aborted second inspection. It is only when there is that clear connection between the application and actual unreasonable delay that issues of fairness in the exercise of the costs discretion arise under s 318C.

21. [21]
    It follows that there be no order for costs.