Worker obtains trial costs but did not beat his WCRA mandatory offer

Paskins v Hail Creek Coal Pty Ltd & Anor (No 2) [2017] QSC 213

McMeekin J

Further to the trial decision, the plaintiff was successful against the defendants for a personal injuries claim, sustained in the course of his employment under a labour hire arrangement. The cost issues were:

  • Whether the costs order against the second defendant in favour of the plaintiff should extend to those costs that the plaintiff incurred in pursuing the first defendant;
  • The costs of an application brought by the plaintiff in May 2017; and
  • Whether an order should be made for the two counsel engaged by the plaintiff

Whether the costs order against the second defendant in favour of the plaintiff should extend to those costs that the plaintiff incurred in pursuing the first defendant

As to whether the costs order against the second defendant should extend to costs the plaintiff incurred pursuing the first defendant, his Honour stated:

[9] Here the plaintiff succeeded against both defendants. He cannot obtain an order for costs against the first defendant because the WCRA prohibits that order being made as his mandatory final offer was less than the eventual award. He seeks an order that the second defendant pay not only the costs incurred by him in pursuing the second defendant but the costs incurred by him in pursuing the first defendant. The question is whether he can circumvent the effect of the WCRA by these means?

The plaintiff submitted that costs are in the discretion of the court under section 15 of the Civil Proceedings Act 2011, r 681 Uniform Civil Procedure Rules and that it was reasonable for the plaintiff to pursue both defendants. The defendants contended that the other was liable for the negligence of the employee of the second defendant.

McMeekin J continued:

[11] The plaintiff makes the further point that if he had sued the second defendant alone, that defendant could not have pursued the first defendant for contribution under the Law Reform Act 1995 (Qld) provisions save and unless the plaintiff had first satisfied the pre-litigation procedures under the WCRA: Bonser v Melnacis [2002] 1 Qd R 1. So it is argued that the second defendant took advantage of the joinder for its own purposes. While true, I cannot see how that affects matters greatly. It does tend to reinforce the view that the second defendant cannot be heard to say that the plaintiff acted unreasonably.

[12] If the plaintiff had pursued both defendants and failed against one and so incurred an adverse costs order there is well accepted authority for the view that the unsuccessful defendant can be ordered to pay those costs directly to the successful defendant – thus the risk of the order not being met falls onto the successful defendant, not the plaintiff …

[14] … Here the second defendant denied the basis of the claim made against it, namely that it was responsible for Phillips’ negligence. This effectively mandated that the plaintiff sue both defendants. I do not think it can be doubted that the conduct of the second defendant has been such as to make it fair to impose some liability on it for the costs of the first defendant.

 

After reciting the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (ss 5(2), (4) and (5)) [16]-[17], his Honour concluded:

 

[19] The question then is whether it is just, that the plaintiff, who was successful against both defendants, obtain an indemnity, to the extent that an order for costs on the standard basis can do so, against the expense to which he has been put by reason of the second defendant’s unsuccessful stance, that led to the plaintiff incurring this increased costs burden? I cannot see why, in fairness, the second defendant not be required to bear that burden itself.

The May 2015 application

As to the costs of the application brought by the plaintiff in May 2015, the plaintiff submitted that the second defendant should be required to pay those costs. The second defendant contended that the plaintiff ought to pay the costs because, inter alia, the effect of the orders was to impose extra costs burden on the second defendant. McMeekin J stated:

[26] The second defendant contends that it had no option but to oppose the orders sought because, if granted, they would result in significantly increased costs to it. Assuming that it is appropriate that such decisions are justified by having regard to financial interests, then the plaintiff’s position must also be brought into account …

[27] In any case I am not at all sure that it is relevant to assert that a party who succeeds on an application should be denied their costs because the opposing party is inconvenienced by the orders made or because they are more out of pocket than they would otherwise like to be.

His Honour found that notwithstanding that if it were accepted that the second defendant incurred increased costs due to the need to change counsel late or prepare for trial on short notice, the difference in that change was not shown. His Honour concluded that the plaintiff should be entitled to costs of the application.

Senior and junior counsel

The plaintiff asserted that the costs of two counsel were necessary and proper to fees for trial. Determining whether the costs of both counsel was necessary and proper for the attainment of justice of for defending the rights of the plaintiff, McMeekin J accepted that the relevant factors of the case warranted both counsel.

The plaintiff relied, inter alia, on the importance of the issues and the lack of guiding authority available to the parties as a relevant factor. His Honour was satisfied the combination of factors justified the engagement of two counsel.

David Cormack – Brisbane Barristor & Mediator

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