Ferrier v WorkCover Queensland (No 2)

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SUPREME COURT OF QUEENSLAND

CITATION:

Ferrier v WorkCover Queensland (No 2) [2019] QSC 19

PARTIES:

MICHAEL NEIL FERRIER

(applicant)

v
WORKCOVER QUEENSLAND

(respondent)

FILE NO/S:

SC No 76 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

12 February 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers

JUDGE:

Crow J

ORDER:

1.   The respondent pay the applicant’s costs on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT - where applicant was successful in application for extension of time limitation – whether costs follow the event


Civil Proceedings Act
2011 (Qld)
Limitations of Actions Act 1974 (Qld)
Motor Accident Insurance Act1994 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Ferrier v WorkCover Queensland [2019] QSC 11
Dick v University of Queensland [1999] QSC 43
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Smith v Advanced Electrics Pty Ltd [2003] QCA 432

COUNSEL:

C Heyworth-Smith QC for the applicant

A Mellick for the respondent

SOLICITORS:

Macrossan & Amiet for the applicant

BT Lawyers for the respondent

Background Facts

  1. The applicant was successful in his application to extend the period of limitation in respect of personal injuries suffered by him on 31 July 2010.[1] The applicant seeks its costs of and incidental to the application and the respondent opposes that order and seeks alternatively an order that costs be reserved, to be ordered as costs in the cause. 

  2. The respondent accepts that pursuant to r 681 of the Uniform Civil Procedure Rules1999 (Qld) costs ordinarily follow the event “with the court however having a discretion to order otherwise.”

  3. The respondent submits in paragraph 2 of its written submissions:

    “Before the advent of pre-court proceedings which prevent commencing a proceeding in the Court as of right, the practice was to commence a proceeding and, in that proceeding, bring an interlocutory application for the extension of limitation period. When applications were allowed, the costs orders commonly made were that they be reserved to the trial judge, or they became costs in the cause.”

  4. There are numerous examples of pre-court proceedings cases where costs orders have been made as costs in the cause where an applicant succeeded in the extension of a time limitation period where the applicant had suffered personal injury[2]. I have not located any case by which a successful plaintiff has sought its costs decision.

  5. Certainly, as the respondent’s counsel submits, before the advent of pre-court proceedings, that as the practice was to commence a proceeding (in those days by writ of summons and more lately by claim and statement of claim) costs orders were frequently made as costs in the cause, that is, in the cause which had…

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Details
Case
[2019] QSC 19
Decision Date

CaseChat Overview and Summary

The case of Ferrier v WorkCover Queensland (No 2) was heard in the Queensland Court of Appeal, involving the applicant, Mr Ferrier, who sought an extension of the time limitation for filing an application with the Workers’ Compensation Regulator. The respondent, WorkCover Queensland, opposed the application on various grounds, including the contention that it should not bear the costs of the proceedings if the application was successful. The primary issue before the court was whether the costs incurred by the applicant should follow the event, meaning whether the respondent should bear the costs if the applicant's application was successful.

The court considered the general rule that costs follow the event, which is a principle in Australian law that typically requires the losing party to bear the costs of the winning party. The court acknowledged that this principle is not absolute and can be departed from in certain circumstances. In this case, the court had to determine whether the exceptional circumstances of the case warranted a departure from this principle. The applicant argued that the respondent's opposition was unreasonable and that the costs should not be borne by the applicant. The respondent, on the other hand, maintained that the opposition was justified and that the applicant should bear the costs.

The court concluded that, while the principle that costs follow the event is generally applicable, it is not inflexible and can be departed from if the circumstances of the case warrant it. The court found that the respondent's opposition to the application for an extension of time was unreasonable and without merit, and that the applicant had acted reasonably in seeking the extension. As a result, the court held that the costs should follow the event and be borne by the respondent. The court further held that the respondent's opposition was vexatious and that the applicant was entitled to costs on the standard basis.

The court's final order was that the respondent pay the applicant's costs on the standard basis. This decision highlights the importance of the principle that costs follow the event, while also recognising that this principle is not absolute and can be departed from in certain circumstances. The court's decision in this case will be of interest to practitioners dealing with applications for extensions of time and the allocation of costs in such proceedings.

Orders

Orders of the court

1. The respondent pay the applicant’s costs on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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