Anderson v Pickles Auctions Pty Ltd - [2023] QCA 205

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v Pickles Auctions Pty Ltd [2023] QCA 205

PARTIES:

MARK DE LEIGE ANDERSON
(appellant)
v
PICKLES AUCTIONS PTY LTD
ABN 32 003 417 650
(respondent)

FILE NO/S:

Appeal No 1464 of 2023
SC No 8418 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 265 (Cooper J)

DELIVERED ON:

20 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2023

JUDGES:

Mullins P and Flanagan JA and Henry J

ORDERS:

1.   Appeal allowed.

2.   Set aside the orders made by the learned primary judge.

3.   Vary the decision of the costs assessor made 30 August 2022 by allowing Items 373, 411, 568, 667 (reduced to $990.00), 729 and 943, disallowed by her in that decision.

4.   The respondent pay the appellant’s costs of the appeal and the costs of the applications filed in the proceeding below on 30 September 2022 and 9 January 2023.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – PARTICULAR ITEMS – COUNSEL FEES – GENERALLY – where the appellant and the respondent entered into a release and discharge in relation to a claim arising from a work-related personal injury – where the appellant engaged both senior and junior counsel – where the parties were unable to reach agreement as to costs – where the court appointed a costs assessor – where the costs assessor disallowed the recovery of counsel’s fees on the basis that Part 8 Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (“Regulation”) overrode the Uniform Civil Procedure Rules 1999 (Qld) – where the primary judge upheld the costs assessor’s decision on the basis that reg 137 of the Regulation constituted an exhaustive list of recoverable outlays – whether, as a matter of statutory construction, Part 8 Division 2 of the Regulation prohibits the recovery of counsel’s fees as an outlay – whether reg 137 of the Regulation constitutes an exhaustive list of the outlays that may be recovered by a claimant on an assessment of costs for a claim for damages arising from a work-related personal injury

Acts Interpretation Act 1954 (Qld), s 14(1)
Uniform Civil Procedure (Fees) Regulation 2019 (Qld), Part 2 Division 1
Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 686(c), r 710(1A), r 713(2)(a), r 726, r 742
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 289, s 290A, s 292, s 312, s 313, s 314, s 316, s 584
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 132, reg 134, reg 135, reg 136, reg 137

Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25; [1929] ArgusLawRp 75, cited
State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147, cited

COUNSEL:

G R Mullins KC for the appellant
C C Heyworth-Smith KC, with M A Eade, for the respondent

SOLICITORS:

Turner Freeman Lawyers for the appellant

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCA 205
Decision Date: 20 October 2023

CaseChat Overview and Summary

In Anderson v Pickles Auctions Pty Ltd, the appellant, who sustained a work-related injury on 11 December 2015, claimed damages against the respondent. Following unsuccessful mediation, the parties settled the dispute on 28 April 2021, with terms outlined in a Release and Discharge. Clause 2.1 of the Release and Discharge specified that the costs of the claim and proceedings were to be paid by WorkCover and the respondent, calculated according to Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) ("Regulation"). As the parties could not agree on the costs, the matter was referred to a costs assessor appointed by the Registrar of the Supreme Court.

The central legal issues in the appeal were whether Part 8 Division 2 of the Regulation prohibited the recovery of counsel’s fees and whether regulation 137 of the Regulation constituted an exhaustive list of recoverable outlays. The court was required to determine if the Regulation overrode the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"), which permit the recovery of counsel’s fees, or if the Regulation provided an exhaustive list of allowable costs.

The court found that the Regulation did not prohibit the recovery of counsel’s fees. It held that Part 8 Division 2 of the Regulation did not expressly or impliedly prohibit the recovery of counsel’s fees and that regulation 137 did not constitute an exhaustive list of recoverable outlays. The court emphasised that the Regulation was a specialised statute governing workers' compensation and rehabilitation and did not comprehensively address all aspects of costs recovery. Therefore, the court concluded that the Regulation did not exclude the recovery of counsel’s fees as an outlay. The appeal was allowed, the orders made by the primary judge were set aside, and the decision of the costs assessor was varied to allow the recovery of certain items, including counsel’s fees. The respondent was ordered to pay the appellant's costs of the appeal and the costs of the applications filed in the proceeding below.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by the learned primary judge.

3. Vary the decision of the costs assessor made 30 August 2022 by allowing Items 373, 411, 568, 667 (reduced to $990.00), 729 and 943, disallowed by her in that decision.

4. The respondent pay the appellant’s costs of the appeal and the costs of the applications filed in the proceeding below on 30 September 2022 and 9 January 2023.

Background

Background to the litigation

For the reasons that follow, Part 8 Division 2 of the Regulation should not be construed as prohibiting the recovery of counsel’s fees as an outlay.Background On 11 December 2015 the appellant sustained a work-related injury. A notice of claim for damages was served on WorkCover. The matter progressed through the pre-court procedures prescribed by Part 2 Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“Act”). A compulsory conference was convened on 19 June 2019 but the matter did not resolve. Subsequently, pleadings were filed in the Supreme Court, including a claim and statement of claim, a notice of intention to defend and defence and a reply. The appellant delivered a statement of loss and damage and the parties exchanged documents. It is accepted that each of these steps in the progression of the litigation was governed by the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).[3][3]Appellant’s second amended outline of argument, paragraph 4; respondent’s outline of argument, paragraph 5. The appellant engaged both senior and junior counsel who were involved in various tasks, including the drafting of pleadings, providing advices, attending mediation and preparing for trial. On 28 April 2021 the appellant, the respondent and WorkCover compromised the proceedings before trial. The terms of the compromise were recorded in the Release and Discharge. Clause 2.1 provided:“In addition, WorkCover on its own behalf and on behalf of the Employer will pay the Plaintiff’s costs of and incidental to the claim and proceedings calculated in accordance with Part 8, Division 2 of the [Regulation], as agreed by the parties or, failing agreement, as assessed.” The parties did not agree. In accordance with Clause 2.1 therefore, the appellant’s “costs of and incidental to the claim and proceedings” were those costs “as assessed”. On 30 November 2021 the appellant applied for the following orders:“1.Pursuant to rules 710(1A) and 686(c) of the Uniform Civil Procedure Rules 1999 (Qld), there be an assessment of the Plaintiffs costs payable by the Defendant pursuant to the Release and Discharge dated 28 April 2021; and2.Pursuant to rule 713(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld), the Registrar appoint a costs assessor from the Register of Approved Costs Assessors to conduct the costs assessment with the area/s of expertise of personal injury.” Rule 710(1A) permits a party to apply for a costs assessment not less than 21 days after service of a costs statement. Rule 686 deals with the assessment of costs without an order. Rule 686(c) permits costs to be assessed without an order if, under a filed written agreement, a party agrees to pay another party’s costs under the UCPR. In seeking an order pursuant to r 686(c), the appellant proceeded on the basis that the respondent had not agreed to pay his costs under the UCPR. Were it otherwise, no order under r 686(c) would have been required. The order made by the Registrar on 15 December 2021 appointed a court approved costs assessor “to conduct the assessment of the costs payable by the Defendant to the Plaintiff pursuant to rule 686(c) [UCPR] and the Release and Discharge dated 28 April 2021”.[4] As already observed, the Release and Discharge provided that in the absence of agreement, costs were “as assessed”. The order therefore contemplated an assessment of costs under the UCPR as modified by Part 8 Division 2 of the Regulation.[5] This was accepted by the respondent at the hearing of the appeal.[6] As outlined below, both the costs assessor and the primary judge proceeded on this basis. Counsel’s fees however, were disallowed. The costs assessor disallowed this outlay on the basis that Part 8 Division 2 of the Regulation “overrode” the UCPR which expressly makes such outlays recoverable. Counsel’s fees were disallowed by the primary judge on the basis that reg 137 of the Regulation constituted an exhaustive list of recoverable outlays.[4]RB 53.[5]Part 8 Division 2 applied to the appellant because he was a worker whose DPI was 20 per cent or more: reg 134(a) of the Regulation.[6]TS 1-18 lines 20 – 41.Part 8 Division 2 of the Regulation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Anderson v Pickles Auctions Pty Ltd [2023] QCA 205
PARTIES:	MARK DE LEIGE ANDERSON (appellant) v PICKLES AUCTIONS PTY LTD ABN 32 003 417 650 (respondent)
FILE NO/S:	Appeal No 1464 of 2023 SC No 8418 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2022] QSC 265 (Cooper J)
DELIVERED ON:	20 October 2023
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2023
JUDGES:	Mullins P and Flanagan JA and Henry J
ORDERS:	1. Appeal allowed. 2. Set aside the orders made by the learned primary judge. 3. Vary the decision of the costs assessor made 30 August 2022 by allowing Items 373, 411, 568, 667 (reduced to $990.00), 729 and 943, disallowed by her in that decision. 4. The respondent pay the appellant’s costs of the appeal and the costs of the applications filed in the proceeding below on 30 September 2022 and 9 January 2023.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – PARTICULAR ITEMS – COUNSEL FEES – GENERALLY – where the appellant and the respondent entered into a release and discharge in relation to a claim arising from a work-related personal injury – where the appellant engaged both senior and junior counsel – where the parties were unable to reach agreement as to costs – where the court appointed a costs assessor – where the costs assessor disallowed the recovery of counsel’s fees on the basis that Part 8 Division 2 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (“Regulation”) overrode the Uniform Civil Procedure Rules 1999 (Qld) – where the primary judge upheld the costs assessor’s decision on the basis that reg 137 of the Regulation constituted an exhaustive list of recoverable outlays – whether, as a matter of statutory construction, Part 8 Division 2 of the Regulation prohibits the recovery of counsel’s fees as an outlay – whether reg 137 of the Regulation constitutes an exhaustive list of the outlays that may be recovered by a claimant on an assessment of costs for a claim for damages arising from a work-related personal injury Acts Interpretation Act 1954 (Qld), s 14(1) Uniform Civil Procedure (Fees) Regulation 2019 (Qld), Part 2 Division 1 Uniform Civil Procedure Rules 1999 (Qld), r 360, r 361, r 686(c), r 710(1A), r 713(2)(a), r 726, r 742 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 289, s 290A, s 292, s 312, s 313, s 314, s 316, s 584 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 132, reg 134, reg 135, reg 136, reg 137 Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25; [1929] ArgusLawRp 75, cited State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147, cited
COUNSEL:	G R Mullins KC for the appellant C C Heyworth-Smith KC, with M A Eade, for the respondent
SOLICITORS:	Turner Freeman Lawyers for the appellant