Torpy v Qantas Airways Limited - [2020] QDC 106

DISTRICT COURT OF QUEENSLAND

CITATION:

Torpy v Qantas Airways Limited [2020] QDC 106

PARTIES:

MICHAEL ERNEST TORPY
(Applicant)

v

QANTAS AIRWAYS LIMITED
(Respondent)

FILE NO/S:

111/2019

DIVISION:

Civil

PROCEEDING:

Application on the papers

ORIGINATING COURT:

District Court, Cairns

DELIVERED:

29 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

17 July 2019

JUDGE:

Morzone QC DCJ

ORDER:

1. The respondent will pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – COMMENCING PROCEEDINGS FOR WORK INJURY– COSTS - where leave obtained to commence proceeding where non-compliance with pre-court procedures – costs

Legislation
Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999, rr 5, 681
Workers Compensation and Rehabilitation Act 2003 (Qld) ss 275, 276, & 302

Cases

BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No. 2) [2009] QSC 64
Deeson Heavy Haulage Pty Ltd v Cox & Ors (No 2) [2009] QSC 348
Kilvington v Grigg & Ors (No. 2) [2011] QDC 37
Latoudis v Casey (1990) 170 CLR 534
Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423
Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:
J Trevino for the applicant

SOLICITORS: Maurice Blackburn Lawyers for the applicant
BT Lawyers for the respondent

The applicant succeeded in his application for leave to commence a court proceeding pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 (Qld) despite non-compliance with s 275 of that Act.

I made orders to that effect on 17 July 2019, and also ordered that unless either party applies or the parties otherwise agree on a different costs order within 14 days of the decision, the costs of the application will be the parties’ respective costs in the proceeding. The applicant made such an application and now seeks an order that the respondent pay his costs.

I have considered the application and supporting submissions. The respondent has not filed any further material.

COSTS

The court has a broad power to award costs in a proceeding.[1] The general rule pursuant to r 681 of the Uniform Civil Procedure Rules 1999 is that costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise.
[1] Civil Proceedings Act 2011 (Qld), s 15.

This statutory conferral of jurisdiction to award costs gives this Court the widest possible power and discretion in the allocation of costs. The discretion must be exercised judicially, that is to say, not arbitrarily, capriciously or so as to frustrate the legislative intent.[2] It follows that costs must necessarily be awarded on principle, not according to whim or private opinion. The Court should also not lose sight of the fundamental principle that costs orders serve a compensatory function, not a punitive one.[3] Therefore, the court should act with a degree hesitancy and in an unusual[4] or exceptional case[5] before depriving a successful party of costs, or ordering a successful party to pay…

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.

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Details

Case: [2020] QDC 106
Decision Date: 29 May 2020

CaseChat Overview and Summary

Torpy v Qantas Airways Limited involved a dispute between an employee and his employer regarding compensation for a workplace injury. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant, Torpy, sought leave to commence proceedings for a work injury he suffered while employed by Qantas Airways Limited. The employer contested the application on the basis that the applicant had failed to comply with certain pre-court procedures. The central issue for the court was whether the applicant should be granted leave to commence proceedings despite not complying with the pre-court procedures, and if so, whether costs should be awarded against the employer.

The court considered the statutory framework governing workplace injury claims, which mandates compliance with pre-court procedures before initiating legal action. However, the court acknowledged that these procedures are not jurisdictional and do not prevent a court from hearing an application if it is otherwise appropriate to do so. In this case, the court found that the applicant's failure to comply with the pre-court procedures did not deprive it of jurisdiction to hear the application. The court further held that the employer's opposition to the application was unreasonable, given the applicant's prompt action in seeking to rectify the procedural non-compliance. As a result, the court granted the applicant leave to commence proceedings and ordered the employer to pay the applicant's costs associated with the application. The costs were to be assessed on the standard basis.

The court's decision underscores the importance of adhering to pre-court procedures in workplace injury claims but also recognises that the court retains discretion to exercise its jurisdiction in appropriate circumstances. The court's ruling provides guidance on the consequences of non-compliance with pre-court procedures and the potential for costs orders against parties who unreasonably oppose such applications.

Orders

Orders of the court

1. The respondent will pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

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:	Torpy v Qantas Airways Limited [2020] QDC 106
PARTIES:	MICHAEL ERNEST TORPY (Applicant) v QANTAS AIRWAYS LIMITED (Respondent)
FILE NO/S:	111/2019
DIVISION:	Civil
PROCEEDING:	Application on the papers
ORIGINATING COURT:	District Court, Cairns
DELIVERED:	29 May 2020
DELIVERED AT:	Cairns
HEARING DATE:	17 July 2019
JUDGE:	Morzone QC DCJ
ORDER:	1. The respondent will pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS – COMMENCING PROCEEDINGS FOR WORK INJURY– COSTS - where leave obtained to commence proceeding where non-compliance with pre-court procedures – costs Legislation Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999, rr 5, 681 Workers Compensation and Rehabilitation Act 2003 (Qld) ss 275, 276, & 302 Cases BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No. 2) [2009] QSC 64 Deeson Heavy Haulage Pty Ltd v Cox & Ors (No 2) [2009] QSC 348 Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 Latoudis v Casey (1990) 170 CLR 534 Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 Oshlack v Richmond River Council (1998) 193 CLR 72
COUNSEL:	J Trevino for the applicant
SOLICITORS:	Maurice Blackburn Lawyers for the applicant BT Lawyers for the respondent