Stitz v Manpower Services (No. 2)

[2011] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Stitz v Manpower Services & Anor (No. 2) [2011] QSC 286

PARTIES:

JOHN CHARLES STITZ

(plaintiff)

v

 MANPOWER SERVICES AUSTRALIA PTY LTD

(ACN 071 884 994)
(first defendant)

and

AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD t/a SMORGAN STEEL REINFORCING

(ACN 069 426 955)
(second defendant)

FILE NO/S:

S658 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

23 September 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

On the Papers

JUDGE:

McMeekin J

ORDERS:

The plaintiff pay the costs of the second defendant on the standard basis up and until 18 August 2009.1.   

The plaintiff pay the costs of the second defendant on the indemnity basis after 18 August 2009.2.   

CATCHWORDS

PROCEDURE - SUPREME COURT PROCEDURE - COSTS - where uniform civil procedure rules do not apply – where plaintiff was unsuccessful at trial - where defendant seeks indemnity costs - whether plaintiff imprudent in their refusal of offers of compromise

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 316

Uniform Civil Procedure Rules 1999 (Qld), r 361, r 681

Calderbank v Calderbank [1975] 3 All ER 333

Colgate-Palmolive Company& Anor v Cussons Pty Ltd (1993) 118 ALR 248

Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd & Ors [2003] QSC 299

Latoudis v Casey (1990) 170 CLR 534

Lawes v Nominal Defendant [2007] QSC 103

Rosniak v Government Insurance Office (1997) 41 NSWLR 608

Sheridan v Warrina Community Co-Operative Ltd [2005] 1 Qd R 187

Todrell Pty Ltd v Finch & Ors [2007] QSC 386

COUNSEL:

G Cross for the plaintiff
RAI Myers for the defendants

SOLICITORS:

Smiths Lawyers for the plaintiff
Spark Helmore for the defendants

1. McMEEKIN J: On 9 September 2011 I gave judgment in favour of the defendants in these proceedings.[1] I adjourned the question of the appropriate costs orders to allow the parties the chance to make written submissions which I have now received.

   [1][2011] QSC 268.

1. In the proceedings the plaintiff claimed damages for negligence, breach of contract, and breach of statutory duty against his employer (the first defendant) and host employer (the second defendant).  The second defendant seeks that its costs be paid and on the indemnity basis. The plaintiff submits that there should be no order as to costs.

1. It is common ground that I have no jurisdiction to award costs in favour of a successful employer (ie the first defendant) against a losing plaintiff in proceedings governed by the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) as these are: see s 316 WCRA and Sheridan v Warrina Community Co-Operative Ltd [2005] 1 Qd R 187.

1. The plaintiff’s written submission asserts first that s 316(1) WCRA “prohibits costs orders being made other than pursuant to s 316 WCRA” and secondly, that “where the plaintiff’s claim is dismissed no costs order against the plaintiff can be made”. No other explanation or argument is offered. While not expressed the submission seems to be that s 316 WCRA