van der Berg v Key Solutions Group

[2021] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

van der Berg v Key Solutions Group & Anor [2021] QCA 183

PARTIES:

PETRUS STEFANUS VAN DER BERG
(appellant)
v
KEY SOLUTIONS GROUP (A FIRM)
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 10240 of 2020
SC No 768 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Rockhampton – [2020] QSC 262 (Crow J)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Mullins JJA and Boddice J

ORDER:

The appellant pay the respondents’ costs of the appeal, including the costs of the application to adduce further evidence on the appeal, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where orders were made refusing the appellant’s application for leave to adduce evidence on appeal and dismissing the appeal – whether the appellant ought pay the respondents’ costs of the appeal

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

SOLICITORS:

No appearance by the appellant, the appellant’s submissions were heard on the papers
Hall & Wilcox Lawyers for the respondents

1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.

2. MULLINS JA:  I agree with Boddice J.

3. BODDICE J:  On 30 July 2021, orders were made refusing the appellant’s application for leave to adduce evidence on appeal and dismissing the appeal.

4. The respondents seek an order that the appellant pay their costs of the appeal, including the costs of the application to adduce further evidence on the appeal, on the standard basis.

5. The respondents submit there is no reason why costs ought not to follow the event.  The respondents succeeded on all issues on the appeal.

6. The appellant submits that each party ought to bear their own costs of the appeal and of the application to adduce evidence on appeal.  Whilst he was unsuccessful in the appeal, the appellant submits the interests of justice do not warrant an order for costs.  The initial proceeding was brought in circumstances where it was reasonable for him to seek a declaration that he had sustained a workplace injury.  Further, the appellant’s injuries have left him with no capacity to meet a costs order.

7. Whilst the appellant’s circumstances impact significantly upon his financial capacity to meet a costs order, the general rule that costs of a proceeding follow the event is grounded in reasons of fairness and policy.  Costs are not awarded to punish an unsuccessful party.

8. As McHugh J explained in Oshlack v Richmond River Council,[1] the purpose of an award of costs is to indemnify the successful party in circumstances where that successful party would not have incurred the expense but for the fact that the litigation was brought against it.

   [1](1998) 193 CLR 72 at 97 [67].

9. In the present case, the appellant was wholly unsuccessful on appeal.  Fairness dictates that he bear liability for the costs of that unsuccessful appeal.  The respondents would not have incurred their costs but for the fact that the appellant, having been unsuccessful at first instance, chose to institute an appeal.

10. I would order that the appellant pay the respondents’ costs of the appeal, including the costs of the application to adduce further evidence on the appeal, to be assessed on the standard basis.