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- Unreported Judgment
Costello v Queensland Rail (No 2) QSC 120
SUPREME COURT OF QUEENSLAND
16 June 2014
Supreme Court Rockhampton
On the papers – final submissions received 30 May 2014
PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant was partially successful and partially unsuccessful in its application – where the applicant seeks costs – where the respondent contends that no order as to costs should be made – whether the respondent should be ordered to pay the applicant’s costs
Uniform Civil Procedure Rules 1999 (Qld) r 681
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
S Deaves for the Applicant
GF Crow QC for the Respondent
Rees R & Sydney Jones for the Applicant
McInnes Wilson for the Respondent
 McMeekin J: On 16 May 2014 I delivered my reasons in this application. I found that the applicant was entitled to one of the declarations that he sought namely that a Notice of Assessment given by the respondent to the applicant and dated 11 September 2013 in respect of a Post Traumatic Stress Disorder was invalid and of no effect for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). Mr Costello was not successful in relation to a second declaration which concerned a Notice of Assessment issued by the respondent for an injury to his right ulna nerve and scarring (“the second Notice”). I invited submissions as to the appropriate orders in light of my reasons.
 The parties have agreed on the appropriate orders save as to costs.
 The applicant seeks costs and the respondent contends that the order should be no order as to costs. The parties are agreed that the particular provisions in the Act limiting the right to costs have no application.
 Rule 681 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) applies:
General rule about costs
(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
(2)Subrule (1) applies unless these rules provide otherwise
 Here the respondent argues that the “event” properly understood involved success for each side in their arguments and that while an order could be made in favour of each side the practical approach would be to make no order as to costs. If all else was equal I would agree with the suggestion of the practical approach but the argument ignores several facts.
 First, the applicant could not have obtained the relief he was entitled to unless he came to Court. In the exchange of correspondence before the application was brought the respondent made it clear that it would not agree to the order in relation to the psychiatric condition, on which the applicant succeeded. The respondent was willing to withdraw the second Notice, presumably because of the point made in paragraph  below, but not the Notice relating to the psychiatric injury.
 Secondly, the problems in relation to both Notices were created by the respondent. It was not in issue at the hearing that in issuing the second Notice the respondent failed to comply with duties imposed on it under the Act. It was not blameless, far from it. Its mistake was obvious – the medical practitioner involved had told the respondent he was not assessing injuries outside his specialty and advised that there were such injuries. The Act required that the self insurer have all injuries assessed. Conversely, the applicant was relatively blameless. Self insurers under the Act have, I perceive, a duty to workers to ensure that the provisions of the Act are followed. Workers generally are not expected to be experts on the operation of the Act. Self insurers are.
 Thirdly, as I have mentioned, the respondent had agreed to the withdrawal of the second Notice before the hearing. It was the disagreement about the Notice of Assessment relating to the Post Traumatic Stress Disorder that in truth required the application.
 Fourthly, the point behind the application was to protect the applicant’s right to obtain damages. Because Mr Costello accepted a small lump sum amount for the one psychiatric injury assessed he had forfeited that right. He must now be re-assessed but for both psychiatric injuries. It is of course unknown what the assessment might be. The respondent argues that in this sense Mr Costello might be worse off than if he had not brought the application. But that ignores the practical effect of his success on the application - he can now pursue his rights for both the physical and psychiatric injuries sustained, if he is so advised, whatever the outcome of the medical assessment. Presumably it was this practical effect that prevented any agreement in relation to the Notice concerning the psychiatric injuries.
 Finally, having resolved to contest the psychiatric Notice, it is difficult to see that the respondent incurred any great additional amount of costs in contesting the second Notice.
 In my view the respondent should pay the applicant’s costs.
 The orders that are necessary in the light of my earlier reasons have otherwise been agreed between the parties.
- Published Case Name:
Costello v Qld Rail (No 2)
- Shortened Case Name:
Costello v Queensland Rail (No 2)
 QSC 120
16 Jun 2014