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WorkCover Queensland v Klinger Limited

WorkCover Queensland v Klinger Limited

Case [2022] QDC 201 31 August 2022

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DISTRICT COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Klinger Limited [2022] QDC 201

PARTIES:

WORKCOVER QUEENSLAND

(plaintiff)

v

KLINGER LIMITED
(ACN 008 679 838)

(defendant)

FILE NO:

D692/2019 & D1342/2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

31 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2022

JUDGE:

Jarro DCJ

ORDERS:

1.   In BD692/2019:

(a)     There is no order as to costs of the application filed 19 January 2021.

(b)     Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021.

(c)     There is no order as to costs of the application filed 6 April 2022.

(d)     The defendant’s application filed 4 May 2022 is dismissed.

(e)     Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding on the standard basis.

2.   In BD1342/2019:

(a)     The defendant pay the plaintiff’s costs of the application filed 9 February 2021.

(b)     Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021.

(c)     There is no order as to costs of the application filed 6 April 2022.

(d)     Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding on the standard basis.

CATCHWORDS:

APPLICATION – COSTS – PROCEDURE – whether costs arise from leave to discontinue including reserve costs – whether an order for costs thrown away as a result of amendments to defence – where parties sought to recover costs on standard and indemnity basis against one another.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

COUNSEL:
K Holyoak for the plaintiff

R Ashton QC with A Giurtalis for the defendant

SOLICITORS:
BT Lawyers for the plaintiff

Baker McKenzie Lawyers for the defendant

There are two proceedings involving the plaintiff and the defendant where the parties have substantially resolved the litigation between them, subject to the exercise of judicial discretion of leave to discontinue the proceedings and costs. These reasons principally concern the aspect of costs because there is no reason why the court should not grant leave for the plaintiff to discontinue the proceedings, especially when the defendant does not oppose the discontinuance.
By way of brief background, the plaintiff commenced a proceeding (D692/2019) against the defendant by a claim and statement of claim filed 27 February 2019 (“the Jones proceeding”). The plaintiff also commenced a separate proceeding (D1342/19) against the defendant, as well as four other defendants, by claim and statement of claim filed 17 April 2019 (“the Simpson proceeding”). Regarding the Simpson proceeding, the claims against the four other defendants were not pressed, the result of which left only the plaintiff and the defendant in each proceeding. Essentially…

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 WorkCover Queensland v Klinger Limited

Details

AGLC: WorkCover Queensland v Klinger Limited [2022] QDC 201
Case: [2022] QDC 201
Decision Date: 31 August 2022

CaseChat Overview and Summary

The case involved WorkCover Queensland, the plaintiff, and Klinger Limited, the defendant, with the dispute focusing on costs incurred in the context of a proceeding that was ultimately discontinued. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the costs that arose from the leave to discontinue, including whether these costs encompassed the reserve costs. Additionally, the court had to decide whether an order for costs thrown away due to amendments in the defendant's defence was applicable. The parties also sought to recover costs from each other on both a standard and indemnity basis.

The tribunal examined the circumstances under which the leave to discontinue was granted and the implications of those circumstances for the allocation of costs. It considered whether the costs thrown away due to amendments to the defence should be borne by the defendant, as the party responsible for those amendments. Furthermore, the tribunal assessed the requests for costs on a standard and indemnity basis, taking into account the specific provisions of the Uniform Civil Procedure Rules (UCPR).

The tribunal ruled that there would be no order regarding the costs of the application filed on 19 January 2021, but that the defendant should pay the costs thrown away due to its amendments to the defence filed on 22 September 2021, as per UCPR 386. It dismissed the defendant's application filed on 4 May 2022 and granted the plaintiff leave to discontinue the proceeding, with the plaintiff required to pay the defendant's costs on the standard basis under UCPR 307. In another proceeding, the tribunal ordered the defendant to pay the plaintiff's costs of the application filed on 9 February 2021 and the costs thrown away due to amendments to its defence, with the plaintiff also granted leave to discontinue and required to pay the defendant's costs on the standard basis.

The final orders were that in the first proceeding, the defendant pay the costs thrown away as a result of its amendments to its defence, while the plaintiff was granted leave to discontinue and required to pay the defendant's costs on the standard basis. In the second proceeding, the defendant was ordered to pay the plaintiff's costs of the application and the costs thrown away due to its amendments to its defence, with the plaintiff granted leave to discontinue and required to pay the defendant's costs on the standard basis. No costs were ordered for the applications filed on 6 April 2022 and 4 May 2022.

Orders

Orders of the court

1. In BD692/2019:

(a) There is no order as to costs of the application filed 19 January 2021.

(b) Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021.

(d) The defendant’s application filed 4 May 2022 is dismissed.

(e) Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding on the standard basis.

2. In BD1342/2019:

(a) The defendant pay the plaintiff’s costs of the application filed 9 February 2021.

(b) Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021.

(d) Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding 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.

Citations

AGLC Citation

WorkCover Queensland v Klinger Limited [2022] QDC 201

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 25 of 25 shown

WorkCover Queensland v Klinger Limited (No 1)
[2021] QDC 55 Para 2

…witnesses who would give common evidence on the issue of foreseeability in both proceedings.[1] [1]See WorkCover Queensland v Klinger Ltd [2021] QDC 55.…
Fairfield Services Pty Ltd (in liq) v Leggett
[2020] QSC 183 Para 4

…it considers appropriate.[12] [12]See UCPR 307(1) and 307(2). See also UCPR 685. I was also referred to Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50, [52].…
Zhao v Suzhou Haishun Investment Management Co Ltd
[2020] VSCA 34 Para 5

…provide a strong reason to award costs against the party who has surrendered or capitulated: Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34. It seems to me that this must be a partial reflection of the principles and policies which underlie the r 681 general rule, as identified by McHugh J in O…
Commonwealth Bank of Australia v Daleport Pty Ltd (in rec) (No 6)
[2019] NSWSC 958 Para 5

…one example of a case falling into this category, but other examples include Commonwealth Bank of Australia v Daleport Pty Ltd (in rec) (No 6) [2019] NSWSC 958, where the proceeding was assessed to have become futile in light of the fact that sequestration orders had been entered against defendants, and True Conse…
Rushbrook v Chalmers
[2015] QSC 145 Para 5

…[2010] NSWSC 1301, [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224, [9]; Kennedy v Griffiths [2014] QSC 43, [66]; Rushbrook v Chalmers [2015] QSC 145, [19]. At the time of discontinuance, usually it will be impracticable to assess the eventual prospects of success in the action: Johnson v Clancy [2010] N…
Kennedy v Griffiths
[2014] QSC 43 Para 5

…e the question of costs: Johnson v Clancy [2010] NSWSC 1301, [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224, [9]; Kennedy v Griffiths [2014] QSC 43, [66]; Rushbrook v Chalmers [2015] QSC 145, [19]. At the time of discontinuance, usually it will be impracticable to assess the eventual prospects of succe…
Mio Art Pty Ltd v Macequest Pty Ltd (No 2)
[2013] QSC 271 Para 5

…I was referred to the decision of Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, where his Honour stated at [4]: “As I interpret that rule, it is intended to make it unnecessary to make a specific order dealing with reserved costs, unless they are not to follow the order for costs o…
Ralph Lauren 57 Pty Ltd v Byron Shire Council
[2014] NSWCA 107 Para 5

…defendant has acted reasonably in defending it ( Johnson v Clancy [2010] NSWSC 1301, [21](g) and Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107, [33] per Preston CJ of LEC (with whom Beazley P and Ward JA agreed)), but bearing in mind that the question of reasonableness may not be one capable of de…
Jones v Jones
[2012] QSC 342 Para 5

…be taken in the application of authorities from other jurisdictions where the rules are different. But as McMeekin J observed in Jones v Jones [2012] QSC 342, [45], “obviously r 307(1) does provide some guide”. The principle and policy underlying the r 681 general rule as explained by McHugh J in Oshlack v Richm…
Johnson v Clancy
[2010] NSWSC 1301 Para 5

…n must be exercised judicially, so that the Court arrives at the order it thinks just in the particular circumstances of the case: Johnson v Clancy [2010] NSWSC 1301, [21](a), [21](m). [20] Second , under r 681, the general rule is that costs follow the event unless the Court orders otherwise. In Oshlack v Richmond…
Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd
[2009] QCA 75 Para 5

…g plaintiffs. Ordinarily, the law expects that “he who asserts must prove”: Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661, 672-673 [43] per Keane JA. At least on that basis, the party seeking a particular exercise of the costs discretion must demonstrate why it is appropriate.”…
Bitannia Pty Ltd v Parkline Constructions Pty Ltd
[2009] NSWCA 32 Para 5

…asonableness may not be one capable of determination absent a full hearing on the merits (see Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32, [43], [57] per Hodgson JA (with whom Tobias and Basten JJA agreed)); and (c) the reasons for discontinuance ( Johnson v Clancy [2010] NSWSC 1301, [21](g))…
True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995
[2008] NSWLEC 221 Para 5

…ad been entered against defendants, and True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995 [2008] NSWLEC 221, where the passage of legislation rendered the proceeding futile. [24] Sixth , the Queensland rules are silent as to onus. Care must be taken in the applic…
Rathie v ING Life
[2004] QSC 146 Para 11

…al discretion, such discretion being “truly discretionary” and with “no absolute rules”.[13] [13]See for instance Rathie v ING Life Limited [2004] QSC 146 and Fairfield Services Pty Ltd (in liq) v Leggett [2020] QSC 183.…
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
[2004] HCA 16 Para 5

…umstances established on the evidence (see Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32, [81] (Basten JA); Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424, 433 [34] per Preston CJ of LEC (with whom Beazley P and Ward JA agreed)). [23] Fifth , when evaluating the relevant considerations, there is…
Rathie v ING Life Ltd
[2003] QSC 429 Para 13

…mstances, the order for indemnity costs is likely to be made.[17] [14]See Petavrakis v Hirst & Co. [2001] QSC 224, [41] and Rathie v ING Life Limited [2003] QSC 429, [35]. [15]See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, [24] and Anderson v AON Risk Services [2004] QSC 180. [16] Emanuel Managemen…
Emanuel Management Pty Ltd (in liquidation) v Foster's Brewing Group Ltd
[2003] QSC 299 Para 13

…Ltd (1993) 46 FCR 225, [24] and Anderson v AON Risk Services [2004] QSC 180. [16] Emanuel Management Pty Limited (in liq) v Fosters Brewing Group Ltd [2003] QSC 299, [37]. [17] Emanuel Management Pty Ltd (in liq), supra, [39].…
Cormie v Orchard
[2001] QCA 546 Para 15

…the effect of a judgment on the merits. If, however, it is dismissed it may very well have such an effect.” [18] Cormie v Orchid & Anor [2001] QCA 546, [22].…
Petavrakis v Hirst & Co
[2001] QSC 224 Para 5

…al action between the parties to determine the question of costs: Johnson v Clancy [2010] NSWSC 1301, [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224, [9]; Kennedy v Griffiths [2014] QSC 43, [66]; Rushbrook v Chalmers [2015] QSC 145, [19]. At the time of discontinuance, usually it will be impracticable t…
ONE.TEL Ltd v Deputy Commissioner of Taxation
[2000] FCA 270 Para 5

…ect of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs: ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548, 553 [6]. As to this: (a) In the former type of case, the surrender or capitulation will usually provide a strong reason to award costs against…
Oshlack v Richmond River Council
[1998] HCA 11 Para 5

…010] NSWSC 1301, [21](a), [21](m). [20] Second , under r 681, the general rule is that costs follow the event unless the Court orders otherwise. In Oshlack v Richmond River Council (1998) 193 CLR 72, McHugh J explained the principle and policy underlying that general rule: “The principle is grounded in reasons of fairness and policy and…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 13

…ity costs is likely to be made.[17] [14]See Petavrakis v Hirst & Co. [2001] QSC 224, [41] and Rathie v ING Life Limited [2003] QSC 429, [35]. [15]See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, [24] and Anderson v AON Risk Services [2004] QSC 180. [16] Emanuel Management Pty Limited (in liq) v Fosters Brewing Group Ltd [2003] QSC…
Australian Securities Commission v Aust-Home Investments Ltd
[1993] FCA 585 Para 6

…his application is to seek to try proceedings which have been abandoned. As was stated by Hill J in Australian Securities Commission v Aust Homes Ltd (1993) 44 FCR 194 at [201]: “It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceed…
Kiama Council v Grant
[2006] NSWLEC 96 Para 5

…vely surrendered to the other is a case where proceedings are dismissed or discontinued because the applicant chooses not to proceed with them: Kiama Council v Grant (2006) LGE-RA 441, 453-454 [57] per Preston CJ. (b) In the latter type of case, there may be difficulty in discerning a clear reason why one party, rather than th…
Anderson v AON Risk Services Australia Ltd
[2004] QSC 180 Para 13

…thie v ING Life Limited [2003] QSC 429, [35]. [15]See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, [24] and Anderson v AON Risk Services [2004] QSC 180. [16] Emanuel Management Pty Limited (in liq) v Fosters Brewing Group Ltd [2003] QSC 299, [37]. [17] Emanuel Management Pty Ltd (in liq), supra, [39]…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 1999 (Qld)
1 mention
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
1 mention (from Para 2)

CITATION:	WorkCover Queensland v Klinger Limited [2022] QDC 201
PARTIES:	WORKCOVER QUEENSLAND (plaintiff) v KLINGER LIMITED (ACN 008 679 838) (defendant)
FILE NO:	D692/2019 & D1342/2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	31 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2022
JUDGE:	Jarro DCJ
ORDERS:	1. In BD692/2019: (a) There is no order as to costs of the application filed 19 January 2021. (b) Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021. (c) There is no order as to costs of the application filed 6 April 2022. (d) The defendant’s application filed 4 May 2022 is dismissed. (e) Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding on the standard basis. 2. In BD1342/2019: (a) The defendant pay the plaintiff’s costs of the application filed 9 February 2021. (b) Pursuant to UCPR 386, the defendant pay the costs thrown away as a result of the defendant’s amendments to its defence filed 22 September 2021. (c) There is no order as to costs of the application filed 6 April 2022. (d) Pursuant to UCPR 304(2), there is leave for the plaintiff to discontinue the proceeding and pursuant to UCPR 307, the plaintiff is to pay the defendant’s costs of the proceeding on the standard basis.
CATCHWORDS:	APPLICATION – COSTS – PROCEDURE – whether costs arise from leave to discontinue including reserve costs – whether an order for costs thrown away as a result of amendments to defence – where parties sought to recover costs on standard and indemnity basis against one another.
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld)
COUNSEL:	K Holyoak for the plaintiff R Ashton QC with A Giurtalis for the defendant
SOLICITORS:	BT Lawyers for the plaintiff Baker McKenzie Lawyers for the defendant