WCRA: pre-proceeding interlocutory costs post 2010 amendments

Woolworths Limited v Rodionov [2011] QDC 169

McGill DCJ helpful clarifies the position in respect of costs for interlocutory applications in the “pre-proceedings” stage under the Workers’ Compensation and Rehabilitation Act 2003 ss 318A, 318C and the decision of Clarkson v. Australia Meat Holdings Pty Ltd [2002] QSC 347; [2003] 2 Qd R 122:

[10] The effect of the 2010 amendment is, it seems to me, to clarify the situation by adopting the analysis in Clarkson. This follows from the terms of sections 318A and 318C. The former section excludes orders for costs only where they are orders for costs to which division 1, 2 or 2A applies. It follows that section 318A does not exclude orders for costs in other circumstances.

[11] Division 1 – that is division 1 of part 12 in which section 318A appears – deals with a situation where the claim of a claimant referred to in section 310 is heard and determined. Division 2 deals with a situation where an order is being made by the Court “in the claimant’s proceeding” where the claimant is within section 315.

[12] Again this is talking about the proceeding litigating a claim for damages. This appears from the content of subsections (2) and (3) of section 316 which is the operative provision in division 2. But if there is any ambiguity about it, it is removed by the terms of section 240(3) of the Act. That provides that in a situation where section 315 would apply “part 12 division 2 applies in relation to costs in the claimant’s proceeding for damages.”

[13] Accordingly it is clear, when one considers the Act in its amended form as a whole, that division 2 is concerned only with costs in the claimant’s proceeding for damages. It follows that it is not concerned with costs in an application by the claimant or indeed anyone else seeking to enforce the obligations under the pre-litigation proceedings in the legislation. I should add for completeness that division 2A is concerned with proceedings in the Court that relate to a contribution claim and that is obviously not relevant as well.

[14] It follows therefore that the application which is before me is not an application to which division 1, 2 or 2A applies, and an order for costs in the application before me is not an order about costs which is within section 318A.

[15] As well, section 318C speaks about a restriction on costs for an interlocutory application made under division 2. An order for costs is only going to be made under division 2 if it is an order for costs in the claimant’s proceeding for damages. Since this is not the claimant’s proceeding for damages, this application, assuming it is interlocutory, is not an interlocutory application made under division 2, or an interlocutory application made in a proceeding covered by division 2, and therefore an order for costs in this application, assuming it is interlocutory, is not an order made under division 2.

[16] Accordingly the restriction on awarding costs imposed by section 318C does not apply to this application, or in my view to any application seeking to enforce or to facilitate the completion of the pre-litigation restrictions in the Act.

[17] As one would expect in the circumstances the effect of the amendment to the legislation in 2010 was to resolve the dispute that had arisen between a number of single-Judge decisions in favour of the analysis in Clarkson.

[18] It follows therefore that the special statutory provisions in the Act dealing with the question of costs do not apply. In those circumstances I do not need to comment on the issue which was to some extent raised in the submissions before me as to the true interpretation of the restriction in section 318C. Costs are therefore to be determined on ordinary principles.

Brisbane Barrister – David Cormack

 

 

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