Dwyer v Framemaster (Qld) Pty Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:	Dwyer v Framemaster (Qld) Pty Ltd (No 2) [2013] QDC 161
PARTIES:	Applicant / Plaintiff:	CRAIG ANTHONY DWYER AND
Respondent / Defendant:	FRAMEMASTER (QLD) (ABN 47 094 677 291)
FILE NO/S:	4554/2011
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	18 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers, final submissions received 16 July 2013.
JUDGE:	Kingham DCJ
ORDER:	1. No order as to costs.
CATCHWORDS:	INSURANCE - WORKPLACE COMPENSATION – WORKCOVER - DUTY TO COOPERATE – COSTS - where the parties agree that no order for costs can be made under s 318C Workers Compensation and Rehabilitation Act 2003 (Qld) – whether s 318C applies. Workers Compensation Rehabilitation Act 2003 (Qld) s 318C. Lincoln v Qantas Airways Limited [2012] QDC 351, distinguished.
COUNSEL:	Dr. G.J. Cross for the Applicant. Mr. G.F. Crowe QC for the Respondent.
SOLICITORS:	Patino Lawyers for the Applicant. McCullough Robertson for the Respondent.

On 5 July 2013, I delivered my reasons for refusing Mr Dwyer’s application for disclosure of documents pursuant to s279 of the Workers Compensation Rehabilitation Act 2003 (Qld) [‘WCRA’].[1] Framemaster seeks its costs of and incidental to the application.
[1] Dwyer v Framemaster (Qld) Pty Ltd [2013] QDC 150.

The costs provision for interlocutory applications in proceedings instituted pursuant to the WCRA is s318C. It provides:

An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.

The parties agree there has not been unreasonable delay. They disagree about whether s318C constrains the Court’s power to award costs in this case.

Although proceedings had been instituted before this application was made, senior counsel for Framemaster invited me to follow the reasoning adopted by his Honour Judge Samios in Lincoln v Qantas Airways Limited [2012] QDC 351. In that case, Judge Samios considered s318C did not prevent him from awarding costs, even though proceedings had been instituted, because the application he determined was not interlocutory.[2]
[2] Lincoln v Qantas Airways Limited [2012] QDC 351 [15].

I accept the submission made by counsel for Mr Dwyer that Lincoln is distinguishable. In Lincoln, the applicant had been granted leave to issue proceedings, which had commenced. There was a dispute about whether the pre-litigation proceedings had been complied with in relation to the injury specified in the Notice of Claim. Without the declaration made by his Honour, the proceedings could not continue. For that reason, Judge Samios considered the application for the declaration was not interlocutory.

This application, however, did not involve any consideration of compliance with pre-litigation procedures. I consider it falls comfortably within the meaning of interlocutory in the sense that it was made in the course of proceedings and did not finally conclude or dispose of the substantive rights of the parties.[3]
[3] Butterworths Australian Legal Dictionary - definition of ‘interlocutory proceedings.’

I conclude, therefore, that s318C WCRA does apply to the application and I make no order as to costs.

In the matter of Dwyer v Framemaster (Qld) Pty Ltd (No 2), the plaintiff sought a determination on costs related to a dispute concerning workplace compensation under the Workers Compensation and Rehabilitation Act 2003 (Qld). The primary issue at hand was whether section 318C of the Act, which deals with the duty to cooperate and the potential implications for costs, could be invoked when both parties agreed that no order for costs should be made.

The court had to determine if the statutory provision permitting an order for costs could be exercised despite the agreement of the parties that no such order should be made. The legal question revolved around the interpretation of section 318C and whether the court was bound by the parties' agreement when making a decision about costs.

The court found that while section 318C of the Act allows the court to make an order for costs based on the duty to cooperate, the provision also acknowledges the possibility of an agreement between the parties to forgo such an order. In this case, since both parties had expressly agreed that no order for costs should be made, the court concluded that it was bound by this agreement and could not impose a costs order under section 318C. The court therefore determined that no order as to costs should be made, in accordance with the parties' agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established