Carbone v AA Company Pty Ltd (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Carbone v AA Company Pty Ltd (No 2) [2006] QSC 300

PARTIES:

ANDREW JOHN CARBONE

Plaintiff

AA COMPANY PTY LTD

Defendant

FILE NO/S:

S5847/02

DIVISION:

Trial Division

PROCEEDING:

Application to set aside Registrar’s orders renewing claim under UCPR r 24(2)

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

18 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

Written costs submissions to 13 October 2006

JUDGE:

Robin QC AJ

ORDER:

No costs awarded to plaintiff on dismissal of defendant’s application

CATCHWORDS:

WorkCover Queensland Act 1996 s 325(4) – no jurisdiction to award costs where “unreasonable delay” was neither found nor alleged

COUNSEL:

Applicant/Defendant –Mr M Grant-Taylor SC

Respondent/Plaintiff – Mr C Harding

SOLICITORS:

Applicant/Defendant –Eardley Motteram

Respondent/Plaintiff – Anne Murray & Co

1. The reasons published to the parties on 6 October 2000 ([2006] QSC 293) foreshadowed dismissal of the defendant’s application for setting aside of orders made ex parte under rule 24(2) of the UCPR with costs. Costs had not been mentioned during the argument. I overlooked the relevant “principle”, which is set out in s 325(4) of the WorkCover Queensland Act 1996:

“(4)An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.”

1. The plaintiff’s claim comes within relevant parts of the Act.  The costs foreshadowed relate to an “interlocutory application”.  The parties have availed themselves of the opportunity of putting in written submissions about costs.

1. There is attraction in the submission of Mr Harding, for the plaintiff, that for the court’s jurisdiction to make an order for costs to arise, the court need not be satisfied that there has been unreasonable delay by one of the parties, it need find only that the application was “brought because of unreasonable delay by one of the parties”.  This begs the question whether there must truly have been “unreasonable delay” (a matter for the court’s assessment) or whether unreasonable delay is assigned by the applicant as the basis for approaching the court.

1. As Mr Harding says, “were this section to be interpreted otherwise it would be open to a court to award costs to an applicant seeking costs on the basis of a respondent’s alleged delay but not to award costs to a respondent who successfully resisted an application brought against it on the basis of allegations of unreasonable delay.”  Mr  Harding is doubtless correct in his submission that it is unlikely that a party will be entitled to rely on his own delay for an order for costs, the court having a discretion about what order to make.  He submits it is enough to support the plaintiff’s entitlement to costs here that the defendant has made its application “because of alleged delay on the part of the plaintiff in serving his claim”.

1. That submission is disputed by Mr Grant-Taylor SC who submits that the application was brought “as the defendant’s original outline of argument attests, because…