Re Lankheet

[1999] QSC 73

IN THE SUPREME COURT  

OF QUEENSLAND
  No. 1959 of 1999

Brisbane

BeforeWhite J

[Re Lankheet]

IN THE MATTER of Sections 203, 280, 282, 302, 303, 304 and 305 of the WorkCover Queensland Act (1996)

-and-

IN THE MATTER of an application by JOHN HENDRIKUS LANKHEET

REASONS FOR JUDGMENT - White J

Judgment delivered 9 April 1999

1. Reasons were delivered in this matter on 19 March 1999 and the parties were invited to make submissions as to costs which has now occurred.

2. The applicant sought declaratory relief pursuant to s.304 of the WorkCover Queensland Act 1996 (“the Act”) that a Notice of Claim had been given pursuant to s.280 of the Act, or, alternatively, a declaration that he was taken to have remedied non-compliance with the requirements of s.280.

3. The applicant was unsuccessful in obtaining either declaration. The respondent seeks costs in the ordinary way as the successful party. The applicant resists such an order or, alternatively, would have the costs limited to $400.00 as specified in column D of Schedule 6 to the WorkCover Queensland Regulation 1997.

4. Division 2, Part 11 of Chapter 5 of the Act concerns costs applying to a worker with a non-certificate injury (the case here, see s.43). But those provisions are in respect of the costs in a claimant’s proceedings. There are no such proceedings here on foot. Neither is this an interlocutory application, since that must be in the proceeding, and therefore s.325(4) does not apply.

5. The applicant submits that some assistance may be obtained from Schedule 6 of the WorkCover Regulation.  Part 7 of the Regulation concerns costs. Division 2 contains s.78 which refers to Schedule 6. That division only applies to a worker who has a certificate injury, s.76, which is not the present applicant. In any event, s.78 prescribes the amount and nature of legal professional costs in respect of a claim before a proceeding is started. The reference to an application to the court in s.78(2)(c) of the Regulation (governed by column D and limited to $400.00) is not a reference to an application of the kind here brought by the applicant. Part 5 of the Act deals with pre-court procedures. It contains ss.279-291 which, inter alia, cover the contents of a Notice of Claim for damages, s.280, WorkCover’s response, s.282, the procedure to resolve a claim, s.285 and the medical examination of a claimant, s.286. If a party fails to comply with a provision in Chapter 5 a court may order compliance, s.291. It is, it seems to me, to such applications that s.78 and column D of the Regulation is directed.

6. The Act and Regulation are silent as to costs for an application of this kind. Accordingly they fall to be considered pursuant to O.91 r.1 of the Rules. There is no reason advanced by the applicant in that circumstance as to why the costs of the application ought not to follow the outcome of the application. The applicant sought a declaration which would enable him to commence legal proceedings before participating in the pre-proceeding processes contained in the Act.

7. Accordingly the order is that the applicant pay the respondent’s costs of and incidental to the application to be taxed.

IN THE SUPREME COURT  

OF QUEENSLAND
  No. 1959 of 1999

Brisbane

BeforeWhite J

IN THE MATTER of Sections 203, 280, 282, 302, 303, 304 and 305 of the WorkCover Queensland Act (1996)

-and-

IN THE MATTER of an application by JOHN HENDRIKUS LANKHEET

REASONS FOR JUDGMENT - White J

Judgment delivered 9 April 1999

CATCHWORDS: COSTS - application pursuant to s.304 WorkCover Queensland Act 1996 - ss.291, 325 of Act - s.78, Schedule 6 WorkCover Queensland Regulation 1997.

Counsel:M Anderson for applicant.

B Hoare for respondent.

Solicitors:Watling Roche for applicant.

Bradley & Co for respondent.

Hearing Date:              Written submissions