Cagney v D&J Building Contractors Pty Ltd (No 2)

[2024] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

Cagney v D&J Building Contractors Pty Ltd (No 2) [2024] QDC 171

PARTIES:

SCOTT ANTHONY CAGNEY

(plaintiff)

v

D&J BUILDING CONTRACTORS PTY LTD

(defendant)

FILE NO:

ID38/2021

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich

DELIVERED ON:

17 October 2024

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

1.   The plaintiff pay the insurer’s costs on the standard basis from 28 July 2021

CATCHWORDS:

CIVIL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY CORTS – COSTS – COSTS FOR A PROCEEDING INITIATED UNDER THE WORKERS COMPENSATION AND REHABILITATION ACT 2003 (QLD) – where the plaintiff was found not to be a ‘worker’ within the terms of the Act – where the plaintiff submits that because their claim was unsuccessful, and they are not a worker under the Act that the cost provisions in the Act are therefore not applicable – whether costs are governed by the Workers Compensation and Rehabilitation Act 2003 (Qld)

LEGISLATION:

Workers Compensation and Rehabilitation Act 2003 (Qld) ss 11, 233, 237(1)(a)(i), 300(5), 316, 216(2)(b)

Workers Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (Qld) s 28

CASES:

SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296

COUNSEL:

A D Stobie for the plaintiff

B F Charrington KC for the defendant

SOLICITORS:

McNamara Law for the plaintiff
Hede Byrne & Hall Lawyers for the defendant

Introduction

1. The plaintiff’s claim was dismissed upon the basis that he was not a “worker” within the meaning of that term as found in s 11(1) of the Workers Compensation and Rehabilitation Act 2003.[1]  Although the plaintiff had pleaded, in a neutral way, that the defendant had “engaged him to work as a construction labourer”,[2] the further pleading that he was a “worker” within the meaning of that term as defined in the WCRA,[3] confined the case of being one whereby it was alleged that the plaintiff was a worker because he was employed at the relevant time by the defendant. This is particularly so because the plaintiff disavowed any reliance on the extended definition of a “worker” under s 11(2) in Schedule 2, Part 1 of the WCRA, confining his case to being a worker under s 11(1). This was further made clear by the opening of the plaintiff’s case that “the proceeding relates to the accident sustained, arguably, in the course of employment”.[4]

   [1]Cagney v D&J Building Contractors Pty Ltd [2024] QDC 162.

   [2]Amended Statement of Claim, para 2(d).

   [3]Ibid at para 3(b).

   [4]Transcript 1-4/33.

2. The central jurisdictional issue for the plaintiff to establish in the proceeding was that he was a “worker”.  There was a related issue as to whether the defendant was estopped from denying (as it had) that the plaintiff was a “worker”. Failure to establish that issue would, necessarily, result in the dismissal of his claim.

3. The plaintiff, now submits that had his allegation that he was a “worker” been established, that “would [have] provided the basis for the WCRA to govern the claim generally, in relation to both procedural and substantive aspects of the claim”.  He further submits that the court having rejected the allegation that he was a worker:

   “There is no other basis on which the WCRA can apply to the proceedings.  Therefore, there is no foundation to a claim in relation to costs, which asserts that the WCRA either creates the claim or governs it.  The WCRA is not applicable in any way”.[5]

   [5]Paras 3 and 4 of the plaintiff’s written submissions on costs.

4. In my view, the plaintiff’s submissions are misconceived, if not disingenuous.  The proceeding was brought by him on the sole and express basis that WCRA applied to and governed it.  His pleading as to his compliance with the procedural requirements of the WCRA demonstrate that.[6]

   [6]Amended Statement of Claim, para 10.

5. As was explained by Fraser JA in SS Family Pty Ltd v WorkCover Queensland,[7] the acceptance of the plaintiff’s claim for statutory compensation under Chapters 3 and 4 of the WCRA established him, pursuant to s 237(1)(a)(i) of the Act, as a person entitled to seek damages for an injury by a worker. As such, he was a “claimant” within the meaning of s 233. That status as a claimant, however, did not absolve him of the need to prove in the proceeding for damages that he was a “worker”. He was entitled under the WCRA to bring the proceedings; but he failed in the proceeding he brought.

   [7][2018] QCA 296 at [22]-[34] as referred to, adopted and applied in the primary reasons for judgment at [44]-[63].

6. Next, the plaintiff purports to object to “the conduct, representation and appearance” of “the defendant’s purported representatives”.  Again, the submission is based upon an assertion (now) that the WCRA does not apply because of the court’s determination that the plaintiff was not a “worker”. It is submitted that the appearance by senior counsel for the defendant, but instructed by WorkCover Queensland, necessarily depended upon s 300(5) of the WCRA which, it is contended, does not apply given the court’s finding.  Again, this submission must be rejected.

7. Notwithstanding the court having raised issues of potential conflict of interest with Mr Charrington KC at the time he announced his appearance for the defendant company, but instructed by the insurer who denied any liability to indemnify the defendant in circumstances where it might be found that it was the employer of the plaintiff, and the court having been informed that in a separate application on this issue in the Supreme Court it had been considered by that court that this was an issue best resolved at the trial, counsel for the plaintiff raised no objection to the representation or appearance in, or conduct of the proceeding by those counsel and solicitors as it now purports to do. Apart from the trial having proceeded and having been conducted on that basis without objection, the plaintiff’s submission is, in effect, that in a proceeding in which a claimant alleges they are a “worker”, s 300(5) authorises the insurer to conduct the proceeding on behalf of the alleged employer, but that this authority is retrospectively removed upon a finding that the claimant was not a “worker”, such that the proceeding was conducted throughout without authority. That cannot be correct.

8. The WCRA applies to the proceeding. Costs for this proceeding are governed by s 316 of the WCRA.

9. Once it is understood that the costs are governed by s 316, the plaintiff’s further submissions fall away. The terms of s 316 are mandatory. Section 316(2)(b), in its current form, was enacted by amendments introduced by s 28 of the Workers Compensation and Rehabilitation and Other Legislation Amendment Act 2010.  The explanatory notes to cl 28 of the Bill state:

   “Clause 28 amends s 316 of the Act to expand the range of instances in which a court must make orders as to costs.  They are to include situations in which the court has dismissed a worker’s claim, or makes no award of damages.”

10. There is no residual discretion which might be exercised on the basis of matters now raised by the plaintiff such as the conduct of WorkCover Queensland having prolonged and made more complicated the proceeding, or that the plaintiff succeeded on issues other than whether he was a “worker”.

11. The plaintiff’s further submission that the defendant is not liable for the costs incurred by the solicitors on the record for the defendant misses the point that the costs which must be ordered to be paid under s 316(2)(b) are not the defendant’s costs, but those of the insurer. It also misses the point that the solicitors on the record conduct the proceeding on behalf of the insurer. This simply reflects the requirement, under s 300(1), that the proceeding be brought against the employer, not WorkCover, and the entitlement, under s 300(5), of WorkCover, nonetheless, to conduct the proceeding.

12. In the circumstances, the order which must be made is that the plaintiff pay the insurer’s costs on the standard basis from 28 July 2021 being the date of the final written offer.