Clarricoats v JJ Richards & Sons Pty Ltd (No 2)

This case highlights that a party to litigation may be liable for costs arising out of circumstances beyond their control. In this case flooding prevented the plaintiff, his witnesses and solicitor from attending Court. His Honour found there is no principle of law that a party is only liable for costs if they are personally at fault.
McMeekin J
27 February 2018
Background
On 29 September 2017, McMeekin J gave judgment for the defendant, dismissing the plaintiff’s claim under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”). The defendant had previously made a written offer of settlement pursuant to s 292 of the Act. According to s 316(2)(b) of the Act, the Court must in such circumstances “order that the worker pay the insurer’s costs on the standard basis from the day of the final offer”. [1]–[3]. There is no discretion. [4].
The only issue for determination in this judgment was as to the proper disposition of reserved costs in relation to an adjournment. The adjournment was caused by substantial flooding in Central Queensland and northern New South Wales in April 2017. [8]. It caused significant difficulties for the plaintiff, his witnesses and his solicitor, who would have to travel from Lismore to Rockhampton. In his Honour’s view the circumstances were such that it was not reasonable to insist on their trying to make the journey. [7]–[8].
McMeekin J identified two reasons why the plaintiff would be required to pay the costs thrown away by reason of the adjournment. First, his Honour noted that there is no rule that a party is only liable for costs if they are personally at fault (citing Queensland v Brooks & McCabe [2006] QCA 523 per Keane JA (as his Honour then was). Second, his Honour found that he had no discretion to refuse to award these costs in any event. The words of s 316(2)(b) of the Act made that plain. [14].
W Isdale