Samways v WorkCover Queensland (No 2) - [2010] QSC 273

SUPREME COURT OF QUEENSLAND

CITATION:

Samways v WorkCover Queensland & Ors (No 2) [2010] QSC 273

PARTIES:

SCOTT ANDREW SAMWAYS
(plaintiff)
v
WORKCOVER QUEENSLAND
(first defendant)
and
DE LUCA PROPERTIES PTY LTD
(ABN 80 055 193 514)
(second defendant)
and
LYNSHA PTY LTD
(ABN 97 080 519 919)
(third defendant)

FILE NO:

BS 6092 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDERS:

1.    There be judgment for the plaintiff against the first defendant in the sum of $18,828.12.

2.    There be judgment for the plaintiff against the second defendant in the sum of $21,244.

3.    There be judgment for the plaintiff against the third defendant in the sum of $21,244.

4.    There be no order as to costs as between the plaintiff and the first defendant, as between the plaintiff and the second defendant or as between the plaintiff and the third defendant.

5. Subject to the contractual indemnity between the second and third defendants, it is declared pursuant to s 6(c) of the Law Reform Act 1995 that liability in respect of the plaintiff’s damages be apportioned 10 per cent against the first defendant, 30 per cent against the second defendant and 60 per cent against the third defendant.

6.    The first defendant pay its own costs of and incidental to the proceedings, including contribution proceedings, up to and including 12 December 2008, and that the third defendant pay the first defendant’s costs on the standard basis thereafter.

7.    The second defendant pay its own costs of and incidental to the proceedings.

8.    It is declared that pursuant to clause 7 of the contract made between the second defendant and the third defendant that the second defendant shall indemnify the third defendant in respect of the plaintiff’s claim including:

(a)   the third defendant’s liability to pay damages to the plaintiff;

(b) the third defendant’s costs of defending the plaintiff’s claim;

(c)   the third defendant’s costs of and incidental to proceedings for indemnity or contribution.

and that these costs be assessed on an indemnity basis.

9.    It is further declared that the third defendant is not entitled to be indemnified pursuant to clause 7 of the contract or pursuant to s 6 of the Law Reform Act 1995 by the second defendant in respect of the third defendant’s liability to pay the costs of the first defendant pursuant to Order 6 herein.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF THE PARTIES – where plaintiff obtained judgment for less than $30 000 against each defendant in a personal injuries action – where liability apportioned between defendants 10%: 30%: 60% - where the second defendant disclosed a covert surveillance recording of the plaintiff less than 7 days before trial – where there is a contractual indemnity between the second and third defendants – costs orders as between the plaintiff and each defendant, and amongst the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samways v WorkCover Queensland (No 2)

Details

AGLC: Samways v WorkCover Queensland (No 2) [2010] QSC 273
Case: [2010] QSC 273
Decision Date: 30 July 2010

CaseChat Overview and Summary

In Samways v WorkCover Queensland (No 2), the plaintiff sought damages for personal injuries. The case involved three defendants, with the plaintiff obtaining judgments of less than $30,000 against each defendant. The court was required to apportion liability and determine the costs among the parties. The second defendant disclosed a covert surveillance recording of the plaintiff shortly before the trial, which added complexity to the proceedings. There was also a contractual indemnity between the second and third defendants, which influenced the court’s reasoning.

The court had to consider whether the general rule of costs in personal injury cases should be departed from due to the conduct of the parties, particularly the late disclosure by the second defendant. The court assessed the conduct of all parties and decided that no costs order should be made between the plaintiff and any defendant. However, it was necessary to determine the costs among the defendants. The court considered the contractual indemnity between the second and third defendants, which required the second defendant to indemnify the third defendant for certain costs and liabilities. The court ultimately decided that the second defendant would indemnify the third defendant for specific costs and liabilities, but not for the costs incurred in relation to the first defendant.

The court ordered that the first defendant pay its own costs up to a certain date and that the third defendant pay the first defendant's costs thereafter. The second defendant was ordered to pay its own costs. The court also declared the apportionment of liability among the defendants and confirmed the terms of the indemnity agreement between the second and third defendants. The final orders included judgments for the plaintiff against each defendant, specific cost orders, and declarations regarding liability and indemnity.

Orders

Orders of the court

1. There be judgment for the plaintiff against the first defendant in the sum of $18,828.12.

2. There be judgment for the plaintiff against the second defendant in the sum of $21,244.

3. There be judgment for the plaintiff against the third defendant in the sum of $21,244.

4. There be no order as to costs as between the plaintiff and the first defendant, as between the plaintiff and the second defendant or as between the plaintiff and the third defendant.

5. Subject to the contractual indemnity between the second and third defendants, it is declared pursuant to s 6(c) of the Law Reform Act 1995 that liability in respect of the plaintiff’s damages be apportioned 10 per cent against the first defendant, 30 per cent against the second defendant and 60 per cent against the third defendant.

6. The first defendant pay its own costs of and incidental to the proceedings, including contribution proceedings, up to and including 12 December 2008, and that the third defendant pay the first defendant’s costs on the standard basis thereafter.

7. The second defendant pay its own costs of and incidental to the proceedings.

8. It is declared that pursuant to clause 7 of the contract made between the second defendant and the third defendant that the second defendant shall indemnify the third defendant in respect of the plaintiff’s claim including:

(a) the third defendant’s liability to pay damages to the plaintiff;

(b) the third defendant’s costs of defending the plaintiff’s claim;

and that these costs be assessed on an indemnity basis.

9. It is further declared that the third defendant is not entitled to be indemnified pursuant to clause 7 of the contract or pursuant to s 6 of the Law Reform Act 1995 by the second defendant in respect of the third defendant’s liability to pay the costs of the first defendant pursuant to Order 6 herein.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Samways v WorkCover Queensland & Ors (No 2) [2010] QSC 273
PARTIES:	SCOTT ANDREW SAMWAYS (plaintiff) v WORKCOVER QUEENSLAND (first defendant) and DE LUCA PROPERTIES PTY LTD (ABN 80 055 193 514) (second defendant) and LYNSHA PTY LTD (ABN 97 080 519 919) (third defendant)
FILE NO:	BS 6092 of 2008
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	30 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Applegarth J
ORDERS:	1. There be judgment for the plaintiff against the first defendant in the sum of $18,828.12. 2. There be judgment for the plaintiff against the second defendant in the sum of $21,244. 3. There be judgment for the plaintiff against the third defendant in the sum of $21,244. 4. There be no order as to costs as between the plaintiff and the first defendant, as between the plaintiff and the second defendant or as between the plaintiff and the third defendant. 5. Subject to the contractual indemnity between the second and third defendants, it is declared pursuant to s 6(c) of the Law Reform Act 1995 that liability in respect of the plaintiff’s damages be apportioned 10 per cent against the first defendant, 30 per cent against the second defendant and 60 per cent against the third defendant. 6. The first defendant pay its own costs of and incidental to the proceedings, including contribution proceedings, up to and including 12 December 2008, and that the third defendant pay the first defendant’s costs on the standard basis thereafter. 7. The second defendant pay its own costs of and incidental to the proceedings. 8. It is declared that pursuant to clause 7 of the contract made between the second defendant and the third defendant that the second defendant shall indemnify the third defendant in respect of the plaintiff’s claim including: (a) the third defendant’s liability to pay damages to the plaintiff; (b) the third defendant’s costs of defending the plaintiff’s claim; (c) the third defendant’s costs of and incidental to proceedings for indemnity or contribution. and that these costs be assessed on an indemnity basis. 9. It is further declared that the third defendant is not entitled to be indemnified pursuant to clause 7 of the contract or pursuant to s 6 of the Law Reform Act 1995 by the second defendant in respect of the third defendant’s liability to pay the costs of the first defendant pursuant to Order 6 herein.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF THE PARTIES – where plaintiff obtained judgment for less than $30 000 against each defendant in a personal injuries action – where liability apportioned between defendants 10%: 30%: 60% - where the second defendant disclosed a covert surveillance recording of the plaintiff less than 7 days before trial – where there is a contractual indemnity between the second and third defendants – costs orders as between the plaintiff and each defendant, and amongst the…