Wilson v Mackay Hospital and Health Service (No 2)
[2021] QSC 214
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- Notable Unreported Decision
- Wilson v Mackay Hospital and Health Service (No 2)[2021] QSC 214
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Wilson v Mackay Hospital and Health Service (No 2)[2021] QSC 214
Wilson v Mackay Hospital and Health Service (No 2)[2021] QSC 214
SUPREME COURT OF QUEENSLAND
CITATION: | Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214 |
PARTIES: | ELLIE ANN WILSON (applicant) v MACKAY HOSPITAL AND HEALTH SERVICE ABN 87 427 896 923 (respondent) |
FILE NO/S: | SC No 28 of 2021 SC No 493 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Mackay |
DELIVERED ON: | 25 August 2021 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | On the papers |
JUDGE: | Crow J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the applicant was successful in their application to have the period of limitation in which to file a claim for damages for personal injuries extended – where the applicant seeks their costs – where the respondent submits the costs ought to be costs in the cause – whether costs ought to follow the event or whether they ought to be costs in the cause Uniform Civil Procedure Rules 1999 (Qld), r 681 Brown v Marine Contracting (No 2) [2012] QSC 345, considered Dasreef v Hawchar Pty Ltd (2011) 243 CLR 588, cited Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348, cited Dick v University of Queensland [1999] QSC 43, considered Ferrier v WorkCover Qld (No 2) [2019] QSC 19, applied Furniss v Blue Sky Investments Ltd (No 2) [2021] QSC 121, cited Latoudis v Casey (1990) 170 CLR 534, cited Oshlack v Richmond River Council (1998) 193 CLR 72, applied Wilson v Mackay Hospital and Health Service [2021] QSC 178, cited Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, applied |
COUNSEL: | P T Cullinane QC for the applicant C C Heyworth-Smith QC for the respondent |
SOLICITORS: | Taylors Solicitors for the applicant Barry Nilsson Lawyers for the respondent |
- [1]On 29 July 2021, Ms Ellie Wilson was successful in her application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“LAA”) to extend the period in which to file a claim seeking damages for personal injuries arising from an incident which occurred in 1999, whilst she was a child. I gave the parties time to confer and attempt to agree as to the appropriate order as to costs. If no such agreement could be reached, I invited submissions on costs so the matter could be decided on the papers.
- [2]Plainly, no agreement could be reached, so submissions were filed, and this judgment concerns the costs of the application heard 14 July 2021.
- [3]The starting point of any costs dispute is r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) which provides:
“681 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.”
- [4]The applicant submits that there is no reason to deviate from the usual order as to costs, that is, the applicant submits that costs ought to follow the event.[1] The applicant points to the High Court’s decision in Oshlack v Richmond River Council (1998) 193 CLR 72 where the court held that exceptions to the “general rule” as to costs are limited. The court in Oshlack went on to say that the limited exceptions are usually concerned with conduct which “disentitles” a successful party to a favourable costs order.[2] The applicant correctly submits that there is no such misconduct in the present case.
- [5]The applicant further points to the decision of McMeekin J in Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348. In that decision, his Honour identified two further “exceptions” to the general rule. The so-called exceptions identified were:
- (a)The defendants were the successful parties in the litigation in terms of the eventual orders made as the net benefit to the plaintiff was minimal;
- (b)The successful party was guilty of relevant misconduct; and
- (c)Where the unsuccessful party succeeded on a significant majority of the issues litigated.
- (a)
- [6]The applicant submits, and I do accept, that neither of the exceptions raised by McMeekin J in Deeson arise. Indeed, in respect of the “net benefit” point raised by McMeekin J, it weighs heavily in favour of the applicant as her ability to pursue her claim for damages relies entirely on having the period of limitation extended. Secondly, I have previously considered where costs awards may be made to reflect respective parties’ success on discrete issues,[3] however, as the applicant rightly pointed out, there was only one real issue litigated in this application. That is, whether the period in which to commence a claim ought to be extended.
- [7]On the other hand, the respondent seeks that the costs of the application be costs in the cause.[4] The respondent, quite rightfully, does not attempt to point to any conduct on behalf of the applicant which would disentitle them to a favourable costs order.[5] Instead, the respondent submits that “costs in the cause” is the “usual order” in “applications of this sort” (that would seem to mean applications to extend the period of limitation) and that the applicant has such poor prospects of success at trial (should the matter proceed to trial) that the costs ought to be costs in the cause to reflect the fact that the respondent “ought never have been put to” the expense of the hearing.
- [8]Both these submissions require some analysis.
Usual or appropriate order for costs in “applications of this kind”
- [9]The respondent makes a submission that despite the “general rule” as to costs contained in r 681 of the UCPR, that a different “general rule” applies in cases where an applicant seeks to extend the limitation period. The respondent points to several cases which are quoted in paragraph 3 of their written submissions.[6]
- [10]The respondent does not put forward any specific submissions regarding the bulk of those cited judgments. Upon a cursory reading of a number of those cases, their Honours, with respect, did not address the issue of costs at any length in their decision which of course, makes it difficult to determine the exact factual matrix behind their Honours’ decisions to exercise their discretion in that manner. Given the fact that so little of their Honours’ judgments dealt with the issue of costs, they can hardly be viewed as authorities or guidance for the exercise of my own discretion.
- [11]In Dick v University of Queensland [1999] QSC 43, White J ordered the costs of the application to extend the period of limitation ought to be costs in the cause. In that decision, her Honour briefly dealt with issues of costs in the last paragraph of the decision. White J spent much of that paragraph rejecting the respondent’s submission that in granting the extension the applicant was granted “an indulgence” by the court. In the present case, the respondent submits that “Justice White did not accept that success will give rise to a favourable costs order for the applicant”. Such a submission may be taking the reasons of White J a little far. In Dick, the successful applicant submitted the costs ought to be costs in the cause and it cannot be garnered from the decision whether White J rejected or did not accept that a favourable costs order ought to be made in favour of the applicant; her Honour simply accepted the submission of the applicant and made the order that costs be costs in the cause.
- [12]In the present case, the applicant is seeking their costs. In my view, that is sufficient to differentiate between Dick and the present case.
- [13]The respondent then made further submissions on the decision of P Lyons J in Brown v Marine Contracting (No 2) [2012] QSC 345. The respondent submits that “his Honour accepted the submission for the PIPA respondent that where the opposition to the application had been reasonable (albeit unsuccessful) that ‘in such cases costs are made costs in the cause or reserved’”. P Lyons J noted that that submission “had some force”. With respect, the unsuccessful party acting in a reasonable manner does not warrant a departure from the general rule contained in r 681 of the UCPR, as a favourable award of costs to the successful party are in the nature of an indemnity (based on principles of fairness and policy), not a punishment.[7] If a successful party was acting unreasonably then that would be grounds for denying the successful party their costs,[8] or ordering indemnity costs against an unsuccessful party.[9] Furthermore, in Brown P Lyons J did orders costs against the second defendant.
- [14]The respondent seeks to distinguish my decision in Ferrier v WorkCover Qld (No 2) [2019] QSC 19 where I ordered that a successful applicant ought to have their costs paid on a standard basis. In that decision, I analysed several other cases involving the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) and its pre-court procedures and found there “may not be a cause” to which costs may attach and a resolution at trial would unlikely be necessary. As I said in Ferrier:[10]
“[19] I would construe the [WCRA] as evincing a strong legislative intention that disputes subject to the Act ought to be resolved prior to the commencement of court proceedings…I cannot therefore accept a submission that the dispute between the applicant and the respondent cannot be resolved until trial as a justification for non-application of the general rule as to costs provided in r 681.”
- [15]The respondent rightfully submits that this present case also must comply with a pre-court regime (though one not as onerous as the WCRA).[11] I see no compelling reason to depart from my decision in Ferrier as it is often the case that these types of matters, even where liability and causation may be difficult to prove, such as in medical negligence cases like the present, there is still a high likelihood the matter will settle prior to trial, such that there would be no “cause” so to say. Further, if the matter did proceed to trial, I do not see why a successful applicant ought to be denied their costs, simply because they may not be ultimately be successful at trial. An application to extend the limitation period is a discrete application that is antecedent to court proceedings proper and as such success ought to be measured on an individual basis, not as part of a broader scheme.
- [16]Therefore, I reject the respondent’s submissions as to what the usual order as to costs is in applications of this sort.
Plaintiff’s Prospects of Success
- [17]The majority of the respondents’ written submissions involved submissions on the plaintiff’s prospects of success at trial, the overarching theme of those submissions being that it was unlikely that the plaintiff would succeed at trial and as such the respondent ought not be put to extra costs for having defended this application.
- [18]
- [19]In my judgment concerned with extending the limitation period,[14] I placed reliance on the report of a Dr Walker, now deceased, to show that there was a prima facie case in respect of liability. Given that Dr Walker was deceased, I found that the notes of Dr Walker were rendered admissible by s 92 of the Evidence Act 1977 (Qld).[15] As I found in my original decision, given those documents were admissible, they more than adequately met the test in regard to forming a view on a prima facie case.
- [20]The respondent submits that the report and file notes of Dr Walker will not discharge the burden of proof on the balance of probabilities at trial and, on that basis, that the applicant will lose at trial. Submissions of this sort are, with respect, immaterial. To succeed in her application under s 31 of the LAA, the applicant need only prove the case to a prima facie standard. As Macrossan CJ said in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, showing a prima facie case for the purpose of s 31 of the LAA is an undemanding test; the applicant need not prove their case twice.
- [21]The respondent further submits that the report of Dr Walker would be opposed at trial. If opposed at trial, there is a possibility that it would be ruled inadmissible, a matter within the discretion of the trial judge. Again, this consideration is a matter for trial and is immaterial to the present issue; that is, the exercise of a discretion as to the costs for an application to extend the period of limitation. Further, it would be inappropriate to make a quasi-ruling on the admissibility of a document for trial prior to receiving proper submissions on the fact and as an ancillary matter to a decision on costs.
- [22]The respondent further makes submissions that the report does not fulfil the criteria for expert reports as detailed in Dasreef v Hawchar Pty Ltd.[16] Again, this is immaterial. The applicant was only required to prove to a prima facie level that they have a case against the alleged tortfeasor. They are not required to prove the case twice and given the early stage of the proceedings, they are entitled to gather further evidence on liability, causation, and quantum. Those issues, should the matter go to trial, will be properly ventilated there. It is not the place, when deciding the costs of a discrete application, to make quasi-ruling about the evidence or the probability of likelihood of success at trial.
- [23]Therefore, in conclusion I have no reason to deviate from the general rule as to costs. It is not for the applicant to prove that they will win at trial to be successful in either the application to extend time, or in receiving a favourable costs order.
- [24]I order the respondent pay the applicant’s costs, of and incidental to the application heard 14 July 2021, on a standard basis.
Footnotes
[1] Uniform Civil Procedure Rules 1999 (Qld) r 681(1).
[2] Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [69].
[3] Furniss v Blue Sky Investments Ltd (No 2) [2021] QSC 121 at [21]-[22].
[4] Or some formulation of that, i.e. “costs in the proceedings”.
[5] Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [69].
[6] Tonia v State of Queensland [2010] QSC 434 per Boddice J; Brown v Marine Contracting Pty Ltd & Ors (No 2) [2012] QSC 345 at [28] and [29] per P Lyons J; Newman v State of Queensland [2009] QSC 125 per P Lyons J; Beattie v Queensland Abattoir Corporation [2001] QSC 407 at p. 9 per Wilson J; Brease v State of Queensland [2007] QSC 043 at [73] per Moynihan J; Wylds v Monks & Anor [1998] QSC 77 per Cullinane J; Dick v University of Queensland [1999] QSC 43 per White J at [15].
[7] Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67].
[8] Oshlack v Richmond River Council (1998) 193 CLR 72.
[9] Di Carlo v Dubois [2002] QCA 225 at [37] - [38].
[10] Ferrier v WorkCover Qld (No 2) [2019] QSC 19 at [19].
[11] Personal Injuries Proceedings Act 2002 s 6.
[12] Wilson v Mackay Hospital and Health Service [2021] QSC 178.
[13] Section 31(2)(b) of Limitation of Actions Act; Wilson v Mackay Hospital and Health Service [2021] QSC 178 at [35] referring to Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431.
[14] Wilson v Mackay Hospital and Health Service [2021] QSC 178.
[15] Wilson v Mackay Hospital and Health Service [2021] QSC 178 at [56].
[16] (2011) 243 CLR 588.