Koven v Hail Creek Coal Pty Ltd
[2010] QSC 316
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- Unreported Judgment
- Koven v Hail Creek Coal Pty Ltd[2010] QSC 316
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Koven v Hail Creek Coal Pty Ltd[2010] QSC 316
Koven v Hail Creek Coal Pty Ltd[2010] QSC 316
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 30 August 2010 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | On the papers – submissions received |
JUDGE: | McMeekin J |
ORDER: | The respondent/defendant pay the applicant/plaintiff’s costs of the application on the standard basis but limited to those costs incurred in the seeking of an inspection of the defendant’s dragline. |
CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – GENERALLY – where neither party entirely succeeded in their application – where the applications were interlocutory in nature – where there was no unreasonable delay – where the defendant misunderstood the basis for the application for inspection – whether the power to award costs should be exercised Uniform Civil Procedure Rules 1999 (Qld), r 427(1), r 427(4), r 681(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 318C Sheridan v Warrina Community Co-operative Ltd & Anor [2004] QCA 308 |
COUNSEL: | J. Baulch SC for the applicant/plaintiff G. Crow for the respondent/defendant |
SOLICITORS: | Grant & Simpson for the applicant/plaintiff Sparke Helmore for the respondent/defendant |
[1] McMEEKIN J: On 20 July 2010 I gave certain orders in response to an application brought by the plaintiff. I reserved the question of costs. I have now received submissions from both parties each contending that they are entitled to an order for costs in respect of the application.
[2] Neither party was entirely successful. The plaintiff sought particulars of the defence and I declined to order that those particulars be provided. The rule 444 procedure had not been followed and I thought it reasonable for the defendant to delay provision of any particulars until the plaintiff had himself particularised his claim. The plaintiff sought an inspection of the defendant’s dragline where the subject incident occurred and I ordered that inspection take place. By the time of the application the only opposition to the order was that it be conducted by an engineer other than the one nominated by the plaintiff. I held that was not a valid ground for objection in the circumstances.
[3] The power to grant costs is constrained in proceedings involving an employee’s claim for damages for personal injury, which this claim concerns, by s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)[1] which provides:
“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.”
[4] The applications were plainly interlocutory in nature.
[5] The application for particulars was brought because the plaintiff alleged that the defendant had been guilty of unreasonable delay in responding to the plaintiff’s requests for particulars. Effectively I held that was not so. In my view the application was premature. There being no unreasonable delay by either party there is no power to award costs. The fact that the legislation might be considered by some to have results that disadvantage a successful party is not relevant: see Sheridan v Warrina Community Co-operative Ltd & Anor [2004] QCA 308.
[6] The application for inspection followed a request made over two months before the hearing. The basis of the opposition to the inspection was unfounded. There was never any suggestion that the plaintiff would not accept the imposition of reasonable conditions. In my view the delay in acceding to the inspection can be characterised as unreasonable.
[7] Thus the jurisdiction to award costs arises. Should the power be exercised? No matter is advanced by the defendant to demonstrate that the ordinary rule should not apply – namely that costs follow the event: r 681(1) Uniform Civil Procedure Rules 1999 (UCPR). The defendant construed the application as one to have a joint expert inspect and report and complained that the rules relating to the appointment of a joint expert had not been followed. I held that the defendant had misunderstood the basis for the application. That misunderstanding on the defendant’s side provides no justification for the denial of costs.
[8] Each side has made reference in their submissions to a third aspect of the application with which I did not deal, namely the plaintiff’s request that he have leave to tender certain evidence of an expert nature. The defendant submits that it did not oppose the orders sought. As best I recall the matter was not the subject of any submission at the original hearing.
[9] If I have overlooked a matter that the parties desired be determined and in order to save the incurring of unnecessary costs, I indicate that I am prepared to make orders in accordance with my usual practice relating to expert medical witnesses if agreed by the parties and if a draft is sent to my associate. To assist the parties I make two observations.
[10] First, I observe that it has become my usual practice to subject the calling of expert evidence of a medical nature to a condition that experts within the one discipline retained on opposite sides of the case meet and confer in an attempt to resolve any differences and if unable to do so prepare a joint report identifying those differences and the reasons for them.
[11] Secondly, I note that one order sought is that the plaintiff be at liberty to adduce evidence from certain named experts. The rules require that all evidence in chief be contained in a report: see r 427(1) and (4) UCPR. Generally speaking I will not make an order contrary to the rules. If such an order is sought then the matter will need to be re-listed.
[12] I order that the respondent/defendant pay the applicant/plaintiff’s costs of the application on the standard basis but limited to those costs incurred in the seeking of an inspection of the defendant’s dragline.
Footnotes
[1] The amendments introduced on 1 July 2010 do not apply here: see s 668 Workers’ Compensation and Rehabilitation Act 2003 (Qld) introduced by s 32 Workers’ Compensation & Rehabilitation and Other Legislation Amendment Act 2010.