SUPREME COURT OF QUEENSLAND

The plaintiff, Thomas William Rew, sought a declaration that, upon proper construction of an offer of settlement, he was entitled to recover costs from the defendant, Visionstream Pty Ltd, in accordance with the WorkCover Queensland Regulation 1997. The dispute arose from a personal injury claim that the plaintiff had against the defendant, which was subject to pre-proceedings steps under the WorkCover Queensland Act 1996. The plaintiff had received a conditional damages certificate from WorkCover Queensland, which allowed him to commence proceedings but stayed them until certain conditions were met. The plaintiff issued a written offer of settlement to WorkCover Queensland, which was accepted by the defendant. The offer included terms for WorkCover Queensland to pay the plaintiff's costs in accordance with Division 2 of Part 7 of the Regulation.

The legal issues before the court were whether the plaintiff was entitled to costs pursuant to Regulation 79, which applies to costs of a claim after a proceeding is started, and if the execution of a discharge by the plaintiff limited the costs recoverable to those pursuant to Regulation 78, which applies to costs of a claim before a proceeding is started. The court considered the language of the offer of settlement, which suggested the application of the regime of costs applicable to the plaintiff's claim, and noted that the proceeding had, in fact, started despite being stayed at the time of the offer. The court rejected the respondent's argument that the proceeding should not be treated as started until certain processes were completed, finding that such a construction would be artificial and inconsistent with the plain language of the Regulation.

The court concluded that the parties had agreed upon the calculation of the plaintiff's costs in accordance with Division 2 of Part 7 of the Regulation, and since the proceeding had started, Regulation 79 applied. The court further found that the discharge did not vary the terms of the final agreement reached between the parties and, therefore, did not limit the costs recoverable by the plaintiff. Consequently, the plaintiff was entitled to the costs as declared. The court ordered that the defendant pay the plaintiff's costs of the application.