Heathcote v Oaky Creek Coal Pty Ltd (No 2)
[2021] QSC 218
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- Heathcote v Oaky Creek Coal Pty Ltd (No 2)[2021] QSC 218
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Heathcote v Oaky Creek Coal Pty Ltd (No 2)[2021] QSC 218
Heathcote v Oaky Creek Coal Pty Ltd (No 2)[2021] QSC 218
SUPREME COURT OF QUEENSLAND
CITATION: | Heathcote v Oaky Creek Coal Pty Ltd (No 2) [2021] QSC 218 |
PARTIES: | STEVEN ANDREW HEATHCOTE (applicant) v OAKY CREEK COAL PTY LTD ACN 010 202 936 (respondent) |
FILE NO/S: | SC No 31 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Mackay |
DELIVERED ON: | 27 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 Ferrier v WorkCover Queensland (No 2) [2019] QSC 19, cited Heathcote v Oaky Creek Coal [2021] QSC 184, cited Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, followed Wilson v Mackay Hospital and Health Service [2021] QSC 178, cited Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214, applied Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, considered |
COUNSEL: | C C Heyworth-Smith QC for the applicant A S Mellick for the respondent |
SOLICITORS: | Macrossan & Amiet Solicitors for the applicant Minter Ellison for the respondent |
- [1]On 6 August 2021, Mr Steven Heathcote was successful in his 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 in 2013, whilst he was employed by the respondent. Upon delivery of judgment, the applicant made an oral application for costs; the respondent sought time to consider the judgment and its position on costs. I acquiesced to the respondent’s request for time and invited written submissions on costs from both parties.
- [2]Both parties have now filed their submissions on costs and this judgment concerns the appropriate costs order for the application heard 15 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 successful applicant relies upon r 681 and seeks his costs, submitting that there is no reason to deviate from the general rule. The respondent, on the other hand, submits that because the case was “not an open book” and one in which the respondent did not “lose” on each of the issues contested, that costs ought to be costs in the cause.
- [5]The respondent points me to, as they did in the application proper, to the decision of the Court of Appeal in Wolverson v Todman [2016] 2 Qd R 106. In Wolverson, Ms Wolverson sought to extend the period of limitation in regard to two actions – one against a neurologist, Dr Todman, and the other against four radiologists employed by Queensland Diagnostic Imaging Pty Ltd. The Court of Appeal allowed the appeal as against the neurologist but dismissed the appeal against the radiologists. The Court of Appeal ordered, in regard to the Ms Wolverson’s successful appeal, that the costs at first instance ought to be costs in the cause.[1] At first instance in Wolverson,[2] the learned primary judge invited submissions on costs, however, it is unclear whether his Honour, Butler SC DCJ, ever made a determination.
- [6]As is said in Wilson v Mackay Hospital and Health Service (No 2),[3] with regards to several other decisions on costs of an application under s 31 of the LAA, the actual issue of costs seems seldom dealt with at any length; the decision of the Court of Appeal in Wolverson is no exception.[4] Gotterson JA deals with the issue of costs in one sentence,[5] and it remains unclear as to why his Honour exercised his discretion in the manner in which he did. However, given the fact that so little of Wolverson dealt with the issue of costs, and the vastly different factual basis (that is, Wolverson dealt with two appeals with mixed success) it can hardly be viewed as an authority on costs for an application under s 31 of the LAA.
- [7]With regard to the other cases relied upon by the respondent, namely Dick v University of Queensland [1999] QSC 43 and Tonia v State of Queensland [2010] QSC 434. I have considered these cases in Ferrier v WorkCover Queensland (No 2)[6] and in Wilson v Mackay Hospital and Health Service.[7] Such cases are distinguishable from the present.
- [8]The respondent’s principal submission for seeking an order that costs of the application be costs in the cause are contained in paragraph 5 of the respondent’s written submissions, which record:
“5. In the present matter, it is submitted the applicant’s case was not an open book and the respondent did not ‘lose’ each of the issues it contested. Further the respondent fairly conceded there was evidence to establish the right of action and did not allege prejudice: paragraph 9 of the respondent’s submissions.”
- [9]In Wilson v Mackay Hospital and Health Service [2021] QSC 178, the respondent did not concede any issue and lost each issue and accordingly the usual rules to costs followed, namely the respondent was required to pay the applicant’s costs.
- [10]In the present application, the respondent did fairly concede there was evidence to establish a right of action and did not allege prejudice. The applicant’s first argument, raised only briefly, was that the fact of the occurrence of negligence upon which the right of action was founded was a material fact as defined in s 30(1)(a)(i) of the LAA and was not within the applicant’s means of knowledge until after the relevant date of 19 March 2020. The applicant’s main argument, which occupied the majority of oral and written submission,[8] was the fact that negligence had caused the personal injury pursuant to s 30(1)(a)(iii) was a material fact of a decisive nature not within his means of knowledge. The applicant’s position was that he considered that he was suffering from a hereditary condition and so the injury is not causally related to the events of 27 March 2013 until he received a report of Dr Rickard on 9 February 2021.
- [11]The fact of the occurrence of negligence point occupied only two paragraphs of the applicant’s 35-paragraph written submissions and approximately one page of argument out of a 42-page transcript.[9]
- [12]The applicant’s principal argument was plainly that the applicant did not have a worthwhile case until the applicant received Dr Rickard’s report on 9 February 2021.[10] That major argument in the applicant’s case did not meet with success,[11] however, the applicant did meet with success on the faintly raised argument of the fact of the occurrence of the negligence.[12]
- [13]It is upon this basis that the respondent submits that they did not “lose” each of the “issues”.
- [14]Senior counsel for the applicant accepts that the costs of the individual issues might be subject of differential orders because “event” in r 681 of the UCPR is to be read “distributively” as “events or issues” if more than one issue arises in a proceeding.[13] Senior counsel for the applicant argues that the event or issue was whether or not the limitation period ought to be extended. I accept this argument as s 30(1)(a) of the LAA provides an inclusive definition of what may be a material fact relating to a right of action with reference to five quite different matters.
- [15]As is made plain upon the statute, the determination of a material fact relating to a right of action being the fact of the occurrence of negligence upon which a right of action is founded, involves a different consideration of the facts as opposed to a material fact relating to causation under s 30(1)(a)(iii) of the LAA. In the former, the focus of the factual enquiry is upon what was known as to the facts of what occurred and the means of avoiding the damage relevantly in terms of a safe system of work.
- [16]The focus of the factual enquiry in respect of the latter is the state of the medical knowledge as to the cause of the personal injury. These matters are quite distinct but still the same issue, namely, what is the material fact. Despite the vast majority of the evidence and submissions being referable to the s 30(1)(a)(iii) causation point, upon which the application did not succeed, the applicant did succeed on the far narrower factual argument basis of s 30(1)(a)(i). In those circumstances, I conclude that the applicant did have success on the issue ventilated upon the application.
- [17]In summary, the five-step[14] process which must be satisfied to discharge the onus upon an applicant under s 31 of the LAA are not “issues”, they are simply the elements of the relevant section. The only issue before me, which “success” can properly be measured against, was whether the extension ought to be granted.[15] Even if I do accept the submission that the elements of s 31 are “issues” (which I do not), the respondent must still have failed on each of them, as the applicant must succeed on each of them to succeed in the application (which the applicant did).
- [18]The respondent did make relevant concessions in regard to the application, namely that there was evidence to establish a right of action and they did not allege prejudice. That being said, such concessions were not of the kind which would give rise to a departure from the usual rule as to costs.[16]
- [19]Therefore, I conclude that the respondent has not established a “limited exception”[17] to the usual rule, and I order that the respondent pay the applicant’s costs, of and incidental to the application heard 15 July 2021, on a standard basis.
Footnotes
[1] Wolverson v Todman [2016] 2 Qd R 106 at 139 [88].
[2] Wolverson v Todman; Wolverson v Lisle & Ors [2014] QDC 83.
[3] [2021] QSC 214 at [10].
[4] Wolverson v Todman [2016] 2 Qd R 106.
[5] Wolverson v Todman [2016] 2 Qd R 106 at 139 [88].
[6] [2019] QSC 19 at [6].
[7] [2021] QSC 214 at [10]-[11].
[8] Heathcote v Oaky Creek Coal [2021] QSC 184 at [30]-[31].
[9] T1-28.
[10] T1-27, line 1-5.
[11] Heathcote v Oaky Creek Coal [2021] QSC 184 at [30]-[32].
[12] “Faintly raised” in the sense of the subject of most limited written and oral submissions by the applicant, but the subject of more voluminous and considered submissions of the respondent.
[13] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 at 61 [84] per McPherson JA.
[14] Heathcote v Oaky Creek Coal Pty Ltd [2021] QSC 184 at [27].
[15] Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214.
[16] Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [69].
[17] Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [69].