Habermann v Cook Shire Council

[2021] QSC 172

SUPREME COURT OF QUEENSLAND

CITATION: 

Habermann v Cook Shire Council [2021] QSC 172

PARTIES:

ELLANNA STORM HABERMANN

(applicant)
v
COOK SHIRE COUNCIL

(respondent)

FILE NO/S:

290 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED EX TEMPORE ON:

21 May 2021

DELIVERED AT:

Cairns

HEARING DATE:

21 May 2021

JUDGE:

Henry J

ORDER:

The respondent will pay the applicant’s costs of that part of the application which related to paragraph 1(a) of its application, to be assessed on the standard basis if not agreed. 

CATCHWORDS:

WORKERS’ COMPENSATION – MISCELLANEOUS MATTERS – INTERLOCUTORY APPLICATION – COSTS – where the applicant is a worker to whom chapter 5 part 12 division 2 Worker’s Compensation Rehabilitation Act 2003 (Qld) applies – where section 316(1) of division 2 precludes an order about costs by the court “in the claimant’s proceeding” other than allowed under s 316 – where s 318C exists as an exception to s 316 where there is an interlocutory application – whether the “interlocutory application” referred to in s 318C is one brought in the claimant’s proceeding – whether costs should be ordered with respect to an interlocutory application for disclosure of comparative wages documents and opposing counsel’s advice – whether the application was concerned with the progression of a filed claim rather than events prior thereto – whether the application was brought because of unreasonable delay by the respondent

Uniform Civil Procedure Rules 1999 (Qld), r 223(4)

Worker’s Compensation Rehabilitation Act 2003 (Qld), s 316, s 318 C

Berhane v Woolworths Limited (No 2) [2013] QDC 208, applied
Brown v Marine Contracting Pty Ltd & Ors (No 2) [2012] QSC 345, applied
Hinrichsen v Glencore Queensland Limited [2019] QSC 112, cited

Muckermann v Skilled Group Limited & Anor (No 2) [2013] QSC 194, applied

COUNSEL:

J Greggory QC for the applicant

R Morton for the respondent

SOLICITORS:

Organic Legal for the applicant
Jensen McConaghy for the respondent

The applicant plaintiff is a worker to whom chapter 5 part 12 division 2 Worker’s Compensation Rehabilitation Act 2003 (Qld) applies, pursuant to s 315 of that Act.  Section 316(1) of division 2 precludes an order about costs by the court “in the claimant’s proceeding” other than allowed under s 316.  Section 316(2) goes on to stipulate costs orders which can be made, depending, in summary, on the outcome of the proceeding and whether or not the court’s ordered damages equals or betters the worker’s final written offer.

In an apparent exception to s 316, s 318C 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 one of the parties.”

That s 316 speaks of costs “in the claimant’s proceeding” makes it obvious that the “interlocutory application” referred to in s 318C is one brought in the claimant’s proceeding.  As McGill DCJ put it in Berhane v Woolworths Limited (No 2) [2013] QDC 208 at [5]:

“Section 316 is talking about the claimant’s proceeding by which that claim for damages is litigated.”

In that matter, the application related to a dispute prior to the initiation of proceedings by a claimant by the filing of a claim and statement of claim.  Thus, his Honour held, ss 316 and 318C do not apply to costs in pre-litigation applications.  Similar conclusions have been reached by judges of this court – see most recently Hinrichsen v Glencore Queensland Limited [2019] QSC 112 at [32].

In the present case, a claim and statement of claim had been filed well before the present application, which was, of its nature, a disclosure dispute in the claimant’s proceeding.  On the face of it, ss 316 and 318C therefore apply to confine the circumstances in which I may order costs. 

The respondent’s argument to the contrary is that the application was not a step in the claimant’s proceeding in the sense it was not, to adopt the language of Peter Lyons J in Brown v Marine Contracting Pty Ltd & Ors (No 2) [2012] QSC 345 at [12]:

“…an application which, by its nature, forms part of the progression from claim to final judgment in that proceeding.”

North J adopted this reasoning in Muckermann v Skilled Group Limited & Anor (No 2) [2013] QSC 194, observing at [15]:

“While s 316 does not contain the word “step”, in the view I take, s 316(1) of the Act when referring to a costs order “in the claimant’s proceeding” should be limited to the circumstances where an order for costs may fall to be made in the action for recovery of damages in the context of a “step” which by its nature in substance forms part of the progression from claim to final judgment in that proceeding. Accordingly on the view I take s 316(1) has no application on the question of costs concerning the application for the declaration nor does s 318C apply, as it is merely a qualification upon the power to be exercised under s 316(1).”

Such reasoning needs to be read in the context that the application for the declaration with which his Honour was dealing was, while filed after the institution of proceeding and filed in that proceeding, nonetheless substantively related to whether there had been an assessment as required as part of the preliminary obligations which apply to personal injuries cases in the modern era, effectively as a pre-requisite to the proper filing of the claim and statement of claim.  It would, I think, distort the intended effect of his Honour’s observations to apply them to an interlocutory application which is, in substance, concerned with the progression of a filed claim, not with events prior thereto.

The application here related to disclosure of comparative wages documents and opposing counsel’s advice. The former was clearly relevant as potential evidence in the proceeding, informing the assessment of lost income. True it is the latter was not for the purposes of its use as evidence in the prospective trial and it was ostensibly for the purposes of informing a decision to settle the proceeding. It was, as I observed in my reasons at [16], at best of indirect relevance in the proceeding. That component of the application did not however fail because of the relevance issue. Indeed, I accepted the aforementioned indirect relevance point could have background but not determinative relevance to the assessment of whether r 223(4) Uniform Civil Procedure Rules 1999 (Qld) had been met.

In the end result, I found that the requirements of that rule had not been met.  However, the lack of success in invoking rule 223(4) does not alter the reality that that component of the application sought disclosure under that section, which is a section clearly intended to regulate disclosure in the context of a filed proceeding such as the present.  Unsuccessful though it was, the second component of the application was an interlocutory application in the claimant’s proceedings.  There has been no suggestion of a delay in its initiation.  It is not caught by the exception in s 318C to the presently exclusory effect of s 316.  It follows, in my view, that I should not make an order as to costs regarding that component of the application.

As to the former component, the disclosure of wages or salary records, the respondent evidently capitulated on it prior to the hearing, but it had delayed in doing so. The respondent refused to meet reasonable requests for the disclosure to occur, effectively forcing the applicant to bring this component of the application.  Section 318C requires that the application was brought because of unreasonable delay by the respondent.  That was at least one reason why it was brought.  Section 318C does not require delay as the sole reason why the application is brought.  It follows in the circumstances I am satisfied s 318C applies in respect of the first component of the application, that which lay within paragraph 1(a) of the application.

As to the quantum of costs which ought be ordered, they ought be confined, obviously, to the costs of the first component of the application. Those costs of course stopped accumulating when the disclosure was eventually made.  All of that will be apparent in the context of an assessment, if costs cannot be agreed. 

My order is the respondent will pay the applicant’s costs of that part of the application which related to paragraph 1(a) of its application, to be assessed on the standard basis if not agreed