Carbone v AA Company Pty Ltd (No 2)
[2006] QSC 300
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- Unreported Judgment
- Carbone v AA Company Pty Ltd (No 2)[2006] QSC 300
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Carbone v AA Company Pty Ltd (No 2)[2006] QSC 300
Carbone v AA Company Pty Ltd (No 2)[2006] QSC 300
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application to set aside Registrar’s orders renewing claim under UCPR r 24(2) |
ORIGINATING COURT: | |
DELIVERED ON: | 18 October 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written costs submissions to 13 October 2006 |
JUDGE: | Robin QC AJ |
ORDER: | No costs awarded to plaintiff on dismissal of defendant’s application |
CATCHWORDS: | WorkCover Queensland Act 1996 s 325(4) – no jurisdiction to award costs where “unreasonable delay” was neither found nor alleged |
COUNSEL: | Applicant/Defendant –Mr M Grant-Taylor SC Respondent/Plaintiff – Mr C Harding |
SOLICITORS: | Applicant/Defendant –Eardley Motteram Respondent/Plaintiff – Anne Murray & Co |
[1] The reasons published to the parties on 6 October 2000 ([2006] QSC 293) foreshadowed dismissal of the defendant’s application for setting aside of orders made ex parte under rule 24(2) of the UCPR with costs. Costs had not been mentioned during the argument. I overlooked the relevant “principle”, which is set out in s 325(4) of the WorkCover Queensland Act 1996:
“(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.”
[2] The plaintiff’s claim comes within relevant parts of the Act. The costs foreshadowed relate to an “interlocutory application”. The parties have availed themselves of the opportunity of putting in written submissions about costs.
[3] There is attraction in the submission of Mr Harding, for the plaintiff, that for the court’s jurisdiction to make an order for costs to arise, the court need not be satisfied that there has been unreasonable delay by one of the parties, it need find only that the application was “brought because of unreasonable delay by one of the parties”. This begs the question whether there must truly have been “unreasonable delay” (a matter for the court’s assessment) or whether unreasonable delay is assigned by the applicant as the basis for approaching the court.
[4] As Mr Harding says, “were this section to be interpreted otherwise it would be open to a court to award costs to an applicant seeking costs on the basis of a respondent’s alleged delay but not to award costs to a respondent who successfully resisted an application brought against it on the basis of allegations of unreasonable delay.” Mr Harding is doubtless correct in his submission that it is unlikely that a party will be entitled to rely on his own delay for an order for costs, the court having a discretion about what order to make. He submits it is enough to support the plaintiff’s entitlement to costs here that the defendant has made its application “because of alleged delay on the part of the plaintiff in serving his claim”.
[5] That submission is disputed by Mr Grant-Taylor SC who submits that the application was brought “as the defendant’s original outline of argument attests, because of the defendant’s contention that the plaintiff had not shown “good reason” for the several renewals of his claim”. It is true that the submission refers to “delay in service” and that the plaintiff would not have needed the successive renewals of his claim successfully applied for, had he got it served. The published reasons nowhere refer to delay but note in para [11] that things might have been done more efficiently or expeditiously. The plaintiff’s performance in all of the circumstances was described as “reasonable enough”. While adverting to delay, the defendant did not assert “unreasonable” delay. On examination, one finds here no finding of “unreasonable delay”, no assertion by the applicant defendant of “unreasonable delay”. The jurisdiction to make a costs order envisaged by s 325(4) therefore does not arise. No costs order can be made.
[6] There seems to be an error in the assertion made by the defendant that the “unreasonable delay” referred to in s 325(4) can only be unreasonable delay on the part of the party against whom the order for costs is sought (an approach which would protect the defendant from an adverse order for costs here). It would seem an unsatisfactory outcome (accepting the philosophy of the provision) if a party successfully meeting assertions of unreasonable delay could not get costs.