Maconachie v Woolworths Limited

[2005] QSC 250

SUPREME COURT OF QUEENSLAND

CITATION:	Maconachie v Woolworths Limited & Anor [2005] QSC 250
PARTIES:	LEONIE MACONACHIE (Applicant) v WOOLWORTHS LIMITED (ACN 000 014 675) (First Respondent) WOOLWORTHS (QLD) LTD (ACN 000 034 819) (Second Respondent)
FILE NO/S:	420 of 2003
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	2 September 2005
DELIVERED AT:	Cairns
HEARING DATE:	17 August 2005
JUDGE:	Jones J
ORDER:	No order as to costs of the application.
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – costs – applicant was successful in application for extension of time – application fell within the ambit of Workcover Queensland Act – whether costs order can be made
COUNSEL:	Mr M Glenn for the applicant Mr G Houston for the respondents
SOLICITORS:	The Law Office for the applicant Bolton Cleary & Kern Lawyers for the respondents

1. The applicant was successful in her application for an extension of time pursuant to s 31 of the Limitation of Actions Act 1974 and sought an order for costs in terms which are usual for such an outcome, namely –

“That the costs of and incidental to the application, to be assessed on a standard basis, be costs in the cause.”

1. The respondent argues that such an order cannot be made having regard to the provisions of s 325 of the WorkCover Queensland Act (“the Act”).  That section provides:-

“(1)No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceeding.

(2)If a party to the proceeding makes a written final offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for –

(a)     If the amount of damages awarded is equal to or more than the worker’s final offer – an order that WorkCover pay the worker’s party and party costs from the day of the final offer;

(b)     If the amount of damages awarded is equal to or less than the WorkCover’s final offer – an order that the worker pay WorkCover’s party and party costs from the day of the final offer.

(3)       If the award of damages is less than the claimant’s written final offer but more than WorkCover’s final offer, each party bears the party’s own costs.

(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.

(5)       If an entity other than the worker’s employer or WorkCover is joined as a defendant in the proceeding, the court may make an order about costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case.

(6)       The court may make an order for costs against the worker’s employer or WorkCover under subsection (5) only if –

(a)   The order is in favour of the entity; and

(b)   The worker’s employer or WorkCover joined the entity as a defendant.”

1. The respondent argues that none of the above provisions would authorise a cost order to be made in the circumstances of this application.  It is obvious that as no award of damages has been made in the applicant’s favour, subsections 2 and 3 have no application. Similarly, subsections 4, 5 and 6 relate to different situations and therefore have no applicability.

1. The applicant seeks to take this application outside the terms of subsection 1 by suggesting that the extension relates to events which occurred prior to the coming into effect of the statutory restriction on awarding costs under the Act, the relevant date for this was 1 February 1997. That argument does not find favour with me since the restriction defined in subsection 1 appears to be all embracing with respect to costs “in the claimant’s proceeding”.  The application is made as an application within the proceedings and the proceedings are clearly subject to the rule. 

1. The terms of the section have been considered by the Court of Appeal in Sheridan v Warrina Community Co-operative Ltd & Anor [2004] QCA 308 in which effect was given to the clear meaning of the words. In fact Williams JA observed as follows:-

“Firstly, the wording of subsection 1 is clear; there is no room for any ambiguity. Secondly, the section is not limited to directing the Court as to how costs are to be awarded depending upon the relationship between the quantum of damages awarded by the Court and the amount of each party’s final offer…The scope of operation of s 325 is highlighted by subsection (4) which deals with all interlocutory applications brought in the proceeding….It follows that s 325 is an all embracing provision as to costs and is much more restrictive than Division 1.”

1. It seems to me then in the light of the terms of the section that it is not open to me to make an order for costs at this stage. Whether such an order for costs will ever be made in the proceeding and the terms of any such order will depend upon the amount of damages awarded related to final offers of settlement. That being the case no order for costs should be made now. In the event that costs incurred in the application are deemed to be properly incurred as part of the costs of the proceedings they will fall to be dealt with in accordance with s 325 in due course.

1. In the end result I make no order as to costs of the application.