Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2023
  4. Reddock v ST&T Pty Ltd & Anor (No 2) - [2023] QSC 21

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision

Reddock v ST&T Pty Ltd & Anor (No 2)[2023] QSC 21

Reddock v ST&T Pty Ltd & Anor (No 2)[2023] QSC 21

SUPREME COURT OF QUEENSLAND

CITATION:

Reddock v ST&T Pty Ltd & Anor (No 2) [2023] QSC 21

PARTIES:

KAREN MICHELLE REDDOCK

(plaintiff)

v

ST&T PTY LTD (ACN 109 724 594)

(first defendant)

AND

BORAL RESOURCES (QLD) PTY LIMITED (ACN 009 671 809)

(second defendant)

FILE NO/S:

BS 4144 of 2020

DIVISION:

Trial Division

PROCEEDING:

Applications for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. 1.The second defendant pay the plaintiff’s costs of the claim against the second defendant to be assessed on the indemnity basis.
  2. 2.The second defendant pay the plaintiff’s costs of the claim against the first defendant incurred after 22 September 2020.
  3. 3.The second defendant pay the first defendant’s costs of the contribution claims incurred after 22 September 2020.

COUNSEL:

R Lynch and J Trost for the plaintiff

J McClymont and P Nevard for the first defendant

R Morton for the second defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Jensen McConaghy Lawyers for the first defendant

Barry Nilsson Lawyers for the second defendant

Jackson J:

  1. [1]
    On 19 December 2022 it was adjudged[1] that the first defendant pay the plaintiff the sum of $633,253.53 and the second defendant pay the plaintiff the sum of 727,131.81.  The judgment followed a trial on the plaintiff’s claim for damages for personal injuries for negligence against her employer in carrying out her work as an employed truck driver and for negligence against the second defendant for directions given to the plaintiff in connection with carrying out that work.  Each of the defendants was found to have been negligent.  The differing amounts of the awards against them are explained because of statutory modification of the otherwise applicable common law principles of damages as against the first defendant under the Workers Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).  To the extent that the liabilities of the defendants as concurrent tortfeasors were in respect of the same damage satisfaction of one liability is satisfaction of the other liability as against the plaintiff. 
  2. [2]
    It was also adjudged that the liability of the defendants inter se on apportionment of their claims for contribution against one another as concurrent tortfeasors for the same damage was 50 percent.  The ultimate amounts of the entitlements to contribution differed because of reasons not relevant to the remaining questions of costs.
  3. [3]
    The plaintiff and the first defendant each apply for orders for costs against the second defendant.  Although the plaintiff was successful in her claim for damages against the first defendant, there must be no order for costs as between the plaintiff and the first defendant and each party is to bear their own costs, because the amount of the judgment was less than the plaintiff’s written final offer on the claim against the first defendant at the compulsory conference,[2] but more than the first defendant’s written final offer at the compulsory conference.[3]
  4. [4]
    In these circumstances, the plaintiff applies for orders that the second defendant pay the plaintiff’s costs.  There are two “special” aspects of the order applied for: first, that the second defendant should be ordered to pay the plaintiff’s costs of the claim against the first defendant as well as the plaintiff’s costs of the claim against the second defendant; second, that all the plaintiff’s costs should be ordered to be assessed on the indemnity basis.
  5. [5]
    In addition, the first defendant applies for an order that the second defendant pay the first defendant’s costs incurred after 22 September 2022 of defending the plaintiff’s claim and the first defendant’s costs incurred after 22 September 2022 of the contribution claims between the defendants.

Plaintiff’s costs against second defendant

  1. [6]
    As to the plaintiff’s costs of the claim against the second defendant, the discretionary statutory power to award costs[4] is affected by the subordinate legislation of the rules of court,[5]  including that costs follow the event unless the court orders otherwise [6]  and the power to order that the costs be assessed on the indemnity basis.[7]  Where a plaintiff has made a successful offer to settle under the rules of court, the power is further affected by those rules.[8]
  2. [7]
    On 9 September 2020, the plaintiff made an offer to settle the claim against the second defendant under the rules of court.  The judgment in favour of the plaintiff against the first defendant was no less favourable than the offer to settle.  Accordingly, it is not in dispute that the plaintiff is entitled to an order that the second defendant pay the plaintiff’s costs of the claim against the second defendant to be assessed on the indemnity basis.[9]

Plaintiff’s costs against first defendant

  1. [8]
    As to the plaintiff’s costs of the claim against the first defendant, the plaintiff submits that the second defendant should be ordered to pay them on two possible bases. The first basis is that upon the second defendant’s denial of liability to the plaintiff and the first defendant’s denial of liability to the plaintiff, the plaintiff was “forced” to bring a claim against both defendants and it is therefore appropriate to order the second defendant to bear the liability for the plaintiff’s costs against the first defendant. 
  2. [9]
    This basis seeks to engage the principles on which a Sanderson order may be made against an unsuccessful defendant to pay to a successful defendant’s costs against the plaintiff that the plaintiff would otherwise be ordered to pay to the successful defendant.[10]  The analogy to the present case is imperfect.  A Sanderson order is not made in respect of the plaintiff’s costs against an unsuccessful defendant. 
  3. [10]
    A statement of the principle underlying a Sanderson order is as follows:

“…that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed ‘are ordered to be paid by the unsuccessful defendant, on the ground that … those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant’. In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation, supra , Williams J, at pp 572–3, stated the principle in a similar way, and Starke and Dixon JJ, in giving their reasons for making a Bullock order, both relied on the circumstances that the attitude adopted by the successful (sic) defendant had induced the plaintiff to join the other defendant: see at pp 559–60, 566. In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (1978) 21 ACTR 23 at 30–1, when he said that ‘there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant’”.[11]

  1. [11]
    The second basis of the plaintiff’s application for an order that the second defendant pay the plaintiff’s costs against the first defendant is that on 8 September 2020, the plaintiff and the first defendant jointly offered to settle the whole proceeding including the plaintiff’s claim and the contribution claims between the defendants by way of a Calderbank[12] offer (“joint Calderbank offer”), that was substantially more favourable to the second defendant than the judgments and orders that were made after the trial on both the plaintiffs claim and the contribution claims. 
  2. [12]
    Again, the analogy between Calderbank v Calderbank and the present case is not perfect.  A Calderbank offer is one made without prejudice save as to costs[13] and is often made to found an order for indemnity costs upon an entitlement otherwise to an order for costs on the standard basis,[14] although Calderbank v Calderbank itself and some other cases do not concern indemnity costs.  The decision in that case was that the costs of the opposite party be paid by a party after an offer was made that it was unreasonable not to accept, and Calderbank offers are often made where the mechanism of a payment into court or offer to settle under the rules is not available to settle a proceeding.
  3. [13]
    In the present case, it may be true that the joint Calderbank offer made by the plaintiff and the first defendant to the second defendant was one that was not available to the plaintiff as an offer to settle under the rules of court. Chapter 9 part 5 of the Uniform Civil Procedure Rules 1999 (Qld) makes no express provision for a plaintiff and one defendant to make a joint offer to another defendant to settle both the plaintiff’s claim against both defendants and the defendants’ contribution claims inter se.[15]
  4. [14]
    The second defendant opposes the plaintiff’s application that it should be ordered to pay the plaintiff’s costs of the proceeding against the first defendant.  It submits that such an order would be contrary to s 316(3) of the WCRA.  Section 316 provides:

“316 Principles about orders as to costs

  1. (1)
    No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceeding.
  2. (2)
    If a claimant or an insurer makes a written final offer of settlement that is refused, the court must, in the following circumstances, make the order about costs provided for—
  1. (a)
    if the court later awards an amount of damages to the worker that is equal to or more than the worker’s written final offer—an order that the insurer pay the worker’s costs on the standard basis from the day of the written final offer;
  2. (b)
    if the court later dismisses the worker’s claim, makes no award of damages or awards an amount of damages that is equal to or less than the insurer’s written final offer—an order that the worker pay the insurer’s costs on the standard basis from the day of the final offer.
  1. (3)
    If an award of damages is less than the claimant’s written final offer but more than the insurer’s written final offer, each party bears the party’s own costs.”
  1. [15]
    Recent cases have considered this point: in 2019 in Thomson v State of Queensland & anor[16] and in 2017 in Paskins v Hail Creek Pty Ltd (No 2).[17]  In each of those cases it was found that there was no inconsistency between s 316 and an order that a plaintiff’s costs against their employer be included in the costs the other unsuccessful defendant was ordered to pay, when the plaintiff succeeded against the employer in an amount that was less than the plaintiff’s written final offer and more than the insurer’s written final offer at the compulsory conference under the WCRA.  Accordingly, each of those cases is persuasive authority that should be followed on the this question unless I am persuaded they are clearly wrong. 
  2. [16]
    The second defendant submitted that both judgments failed to consider the effect of s 316(3).  That is impossible to accept.  In each case, it was s 316(1) that prohibited an order other than an order allowed under that section against the insurer (defendant employer).  But also in each case, it was s 316(3) that was engaged to require each of the worker (plaintiff) and insurer bear its own costs.[18]  Unless s 316(3) was engaged, there was no other provision of s 316 that applied to affect the court’s discretionary power to order costs.  The judgments in both cases clearly proceed on that understanding or basis and considered whether an order sought by the plaintiff similar to the order sought by the plaintiff against the second defendant for the plaintiff’s costs against the first defendant in the present proceeding was prohibited by s 316(1).[19]
  3. [17]
    The question remains whether in the exercise of the discretion to order the second defendant to pay costs, the second defendant should be ordered to pay the plaintiff’s costs against the first defendant.  Both Thompson and Paskins are examples of similar orders in analogous cases.  Despite the imperfect analogy with a usual Sanderson order, I would have been inclined to follow Thompson and Paskins.  But in the end, this point was not fully argued and I do not need to decide it to deal with the costs of this case.
  4. [18]
    That is because, in my view, the second basis of the plaintiff’s application, based on the joint Calderbank offer by the plaintiff and first defendant is a separate basis justifying an order that the plaintiff’s costs against the first defendant should be order to be paid by the second defendant, from a reasonable period for acceptance after the date of the joint Calderbank offer, that is a reasonable period after 8 September 2020. 
  5. [19]
    Acceptance of that offer of compromise would have brought the whole proceeding to an end and on terms that were much more favourable to the second defendant than the judgments on the claim and contribution claims proved to be.  Having regard to the issues that were litigated and the evidence about them at trial, in my view it was always likely that the second defendant would be held to have been negligent in sending the plaintiff to make the delivery where she was injured with a defective stiff delivery chute.  It can be difficult to judge unreasonableness in refusing to accept an offer of settlement in a context such as this because of the risk of hindsight.  However, in my view it was unreasonable for the second defendant not to accept the joint Calderbank offer in this case.
  6. [20]
    Even so, in my view, it may not be appropriate to order that the second defendant pay those costs to be assessed on the indemnity basis.  Had the plaintiff made a written final offer at the compulsory conference that was more favourable to the first defendant than the judgment obtained at the trial, and thereby been entitled to an order for costs against the first defendant, s 316(2)(a) would have limited the plaintiff’s costs to an order that they be assessed on the standard basis.
  7. [21]
    Accordingly, an order that the second defendant pay those costs to be assessed on the indemnity basis would have the effect that the plaintiff would recover more in respect of those costs against the second defendant than if she had been entitled to an award of costs against the first defendant under s 316(2)(a).  That is a reason why, in exercising the discretion to order costs under the relevant provisions in this case and having regard to the intended effect of s 316, no order should be made that the plaintiff’s costs against the first defendant to be paid by the second defendant be assessed on the indemnity basis.  I acknowledge that a different view was taken in the circumstances of the case in Thomson.[20]
  8. [22]
    In the result, I will make an order that the second defendant pay the plaintiff’s costs of the claim against the first defendant incurred after 22 September 2020.

First defendant’s costs against the plaintiff on the claim and against the second defendant on the contribution claims

  1. [23]
    The first defendant relies on the joint Calderbank offer as the basis for its application for an order that the second defendant pay the first defendant’s costs of defending the plaintiff’s claim against it and the first defendant’s costs of the contribution claims between the first and second defendants.
  2. [24]
    Had the second defendant accepted the joint Calderbank offer, the first defendant would have avoided the costs of defending the proceeding brought by the plaintiff against it from the time of acceptance of that offer.
  3. [25]
    The amount of the first defendant’s final written offer to the plaintiff at the compulsory conference was nil.  It was such that if the plaintiff succeeded in obtaining judgment for any amount against the first defendant, the first defendant would not be awarded costs against the plaintiff under s 316(2)(b) of the WCRA.
  4. [26]
    The amount of the plaintiff’s final written offer at the compulsory conference was $1,285,000. It was such that the first defendant was not likely to be ordered to pay the plaintiff’s costs under s 316(2)(a) of the WCRA.
  5. [27]
    In these circumstances, the first defendant proceeded to defend the plaintiff’s claim at trial and was unsuccessful.  It took the benefit of the chance to avoid liability altogether rather than to admit liability to the plaintiff or to offer the plaintiff an amount that would have seen the plaintiff receive the equivalent to that she had offered to accept under the joint Calderbank offer, leaving the first defendant to proceed on its claim for contribution.
  6. [28]
    These circumstances do not readily fit into any recognised category of case where a Calderbank offer operates as between defendants in relation to one defendant’s costs of unsuccessfully defending the proceeding against the plaintiff. 
  7. [29]
    In the result, in my view, the second defendant should not be ordered to pay the first defendant’s costs of defending the plaintiff’s claim after the joint Calderbank offer was made. [21]
  8. [30]
    As to the contribution claims, the first defendant made a final written offer at the compulsory conference of contributing 25 per cent of the amount of any assessed or agreed damages recovered by the plaintiff against both defendants.  In respect of the same damage, on the first defendant’s contribution claim against the second defendant that was an offer to accept 75 per cent of the amount from the second defendant as contributor and on the second defendant’s contribution claim against the first defendant that was an offer by the first defendant’s to pay 25 per cent of the amount as contribution.  But contrary to s 292(2) of the WCRA the second defendant did not make a final written offer at the compulsory conference in respect of either of the contribution claims.
  9. [31]
    Section 316A of the WCRA provides:

“316A Principles about order as to costs

  1. (1)
    This section applies to the extent proceedings in a court relate to a contribution claim.
  2. (2)
    Subsections (3) to (5) apply if the contributor or other party (including an insurer) made an offer that was not accepted.
  3. (3)
    If the court later awards an amount of contribution that is equal to or more than the other party’s written final offer, the court must order the contributor to pay the other party’s costs on the indemnity basis from the day the written final offer was made.
  4. (4)
    If the court later—
  1. (a)
    dismisses the contribution claim; or
  2. (b)
    makes no award for the contribution; or
  3. (c)
    makes an award of contribution of an amount that is equal to or less than the contributor’s written final offer;

the court must order the other party to pay the contributor’s costs on the standard basis from the day the written final offer was made.

  1. (5)
    If an award of contribution is less than the other party’s written final offer but more than the contributor’s written final offer, each party bears the party’s own costs.
  2. (6)
    This section applies to a written final offer whether or not it is made as a separate offer or as part of a joint or consolidated offer.
  3. (7)
    In this section—

written final offer means a written final offer under section 292.”

  1. [32]
    As to the first defendant’s contribution claim against the second defendant, the award of contribution made against the second defendant was less than the final written offer to accept contribution made by the first defendant at the compulsory conference.  As to the second defendant’s contribution claim against the first defendant the award that the first defendant contribute an amount was more than the first defendant’s final written offer to contribute at the compulsory conference. 
  2. [33]
    However, the first defendant submits that s 316A does not apply because the second defendant did not make a mandatory written final offer in respect of either of the contribution claims.  I would reason as follows, because of the apparent complexity of application of s 316A in accordance with its text.  First, a “contributor” under s 316A is a person ordered to pay contribution or against whom a claim for contribution is made.  Second, s 316A(3) does not apply to the first defendant on the second defendant’s claim for contribution because the second defendant made no final written offer (as the relevant “other party”) on the second defendant’s claim for contribution.  Section 316A(3) also does not apply to the second defendant on the first defendant’s claim for contribution against the second defendant, because the second defendant was not ordered to pay contribution that is equal to or more than the first defendant’s written final offer of contribution  Third, s 316A(4) does not apply to the first defendant on the second defendant’s claim for contribution because the second defendant did not make a final written offer of contribution.  Section 316A(4) also does not apply to the second defendant on the first defendant’s claim for contribution because the second defendant made no final written offer to contribute on that claim.  Fourth, s 316A(5) does apply to either of the claims for contribution because the second defendant made no final written offer of contribution.
  3. [34]
    Further, the first defendant submits that the second defendant should be ordered to pay the first defendant’s costs of the contribution claims because the ultimate amount of the second defendant’s liability to pay contribution was $363,566. That is more than it would have been liable to pay for contribution under the joint Calderbank offer.  Under the joint Calderbank offer the amount that the plaintiff offered to receive in compromise was $450,000 and the amount of contribution that the first defendant offered to pay or accept was 50 per cent of that amount, namely $225,000.
  4. [35]
    In my view, it is the last point that warrants an order that the second defendant pay the first defendant’s costs of the contribution proceedings, from a reasonable time after the joint Calderbank offer was made, because keeping in mind the need to avoid hindsight, still it was unreasonable not to accept that offer having regard to the evidence at and the issues decided at the trial.
  5. [36]
    In the result, I will make an order that the second defendant pay the first defendant’s costs of the contribution claims incurred after 22 September 2020.

Footnotes

[1] Reddock v ST & T Pty Ltd & Anor [2022] QSC 293.

[2] Workers Compensation and Rehabilitation Act 2003 (Qld), s 292.

[3] Workers Compensation and Rehabilitation Act 2003 (Qld), s 316(3).

[4] Civil Proceedings Act 2011 (Qld), s 15.

[5] Uniform Civil Procedure Rules 1999 (Qld), chapter 17A.

[6] Uniform Civil Procedure Rules 1999 (Qld), r 681.

[7] Uniform Civil Procedure Rules 1999 (Qld), r 703.

[8] Uniform Civil Procedure Rules 1999 (Qld), r 360.

[9] Uniform Civil Procedure Rules 1999 (Qld), r 360.

[10] Sanderson v Blyth Theatre Co [1903] 2 KB 533.

[11] Gould v Vaggelas (1984) 157 CLR 215, 229-230.

[12] Calderbank v Calderbank [1976] Fam LR 93.

[13] Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd (2021) 7 QR 1, [48].

[14] Stewart v Atco Controls Pty Ltd (2014) 252 CLR 331, [4].

[15] Note that in a case such as this r 363 does not permit one of two defendants to make an offer to settle with the plaintiff although it permits a plaintiff to offer to settle to both defendants.  And rule 364 provides for one defendant who makes a contribution claim to make an offer to settle the contribution claim or contribute to towards an offer to settle the plaintiff’s claim (which offer will be subject to r 363).

[16] [2019] 3 Qd R 514.

[17] [2018] 2 Qd R 518.

[18] Paskins v Hail Creek Pty Ltd (No 2) [2018] 2 Qd R 518, 519 [5]; Thomson v State of Queensland & anor [2019] 3 Qd R 514, 516 [4(a)].

[19] Thomson v State of Queensland & anor [2019] 3 Qd R 514, 517-519 [9]-[18]; Paskins v Hail Creek Pty Ltd (No 2) [2018] 2 Qd R 518, 520-522 [9]-[17].

[20] Thomson v State of Queensland & anor [2019] 3 Qd R 514, 520 [25].

[21] Compare Misani v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263.

Close

Editorial Notes

  • Published Case Name:

    Reddock v ST&T Pty Ltd & Anor (No 2)

  • Shortened Case Name:

    Reddock v ST&T Pty Ltd & Anor (No 2)

  • MNC:

    [2023] QSC 21

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    23 Feb 2023

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 29319 Dec 2022-
Primary Judgment[2023] QSC 2123 Feb 2023-

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Calderbank v Calderbank [1976] Fam LR 93
1 citation
Jump To
Cite 1 - [1976] Fam LR 93
Gould v Vaggelas (1984) 157 CLR 215
1 citation
Jump To
Cite 1 - (1984) 157 CLR 215
Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263
1 citation
Jump To
Cite 1 - [2003] WASC 263
Paskins v Hail Creek Coal Pty Ltd (No 2)[2018] 2 Qd R 518; [2017] QSC 213
3 citations
Jump To
Cite 1 - [2018] 2 Qd R 518
Cite 2 - [2018] 2 Qd R 518
Cite 3 - [2018] 2 Qd R 518
Reddock v ST&T Pty Ltd [2022] QSC 293
1 citation
Jump To
Cite 1 - [2022] QSC 293
Sanderson v Blyth Theatre Co (1903) 2 KB 533
1 citation
Jump To
Cite 1 - (1903) 2 KB 533
Steppke v National Capital Development Commission (1978) 21 ACTR 23
1 citation
Jump To
Cite 1 - (1978) 21 ACTR 23
Stewart v Atco Controls Pty Ltd (2014) 252 CLR 331
1 citation
Jump To
Cite 1 - (2014) 252 CLR 331
Thomson v State of Queensland (No 2)[2019] 3 Qd R 514; [2019] QSC 115
4 citations
Jump To
Cite 1 - [2019] 3 Qd R 514
Cite 2 - [2019] 3 Qd R 514
Cite 3 - [2019] 3 Qd R 514
Cite 4 - [2019] 3 Qd R 514
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd(2021) 7 QR 1; [2021] QCA 8
1 citation
Jump To
Cite 1 - (2021) 7 QR 1

Cases Citing

Case NameFull CitationFrequency
Hays Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield [2025] QCA 1611 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.