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

1. 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.

1. 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. 

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

COSTS

1. 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.

1. 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 costs.  Costs are ordinarily assessed on the standard basis, unless the rules or a court order requires assessment on an indemnity basis.[6]

   [2]     Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 per Gaudron and Gummow JJ.

   [3]     Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, at 563 per Toohey J, at 567 per McHugh J; 97 ALR 45; BC9002896; Oshlack Richmond River Council (1998) 193 CLR 72 at 97; [1998] HCA 11; BC9800310 per McHugh J.

   [4]     BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No. 2) [2009] QSC 64 at [8] per McMurdo J (as his Honour then was), citing Einstein J in Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 at [4]; Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 at [34] per McGill DCJ.

   [5]     Oshlack v Richmond River Council (1988) 193 CLR 72 per McHugh J (with whom Brennan CJ agreed).

   [6] UCPR rr 360 (formal offer by plaintiff), 361 (formal offer by defendant), 701 (standard), 703 (indemnity).

1. Considerations relevant to the determination of costs relevantly include the nature, complexity and outcome of the proceeding, the parties’ conduct, and whether the interests of justice require otherwise. 

Nature, complexity and outcome of the proceeding

1. The applicant made the application to preserve a potential claim for work injury occurring over a period of time.  His application was necessitated by the impact of the statutory regime to his particular injury and circumstances.  It could not be characterised as an indulgence of the court arising from a default.  The applicant was successful in the application.  The complexity and merit of the application is borne out by my ex tempore reasons given on 17 July 2019. 

Parties’ Conduct in the Proceeding

1. The respondent was not bound to contest the application but elected to do so. The application was made necessary by reason of the election to not waive compliance without the need for any court application. The way in which the parties conducted their cases ought be considered against the background of the overriding obligations of the parties and the court under r 5 UCPR. Each party properly participated in the application with appropriate written and oral argument. 

Interests of Justice

1. The general rule is that costs follow the event in circumstances where the applicant is not guilty of some sort of misconduct.[7]  Departure from the general rule is not justified.  There is the strong legislative intention that work injury disputes ought be resolved prior to the commencement of court proceedings.  The applicant, having exhausted efforts to resolve the application, acted promptly and properly to invoke the exercise of the court’s discretion in dealing with the application.

ORDERS

[7]     Uniform Civil Procedure Rules 1999, r 681. Deeson Heavy Haulage Pty Ltd v Cox & Ors (No 2) [2009] QSC 348 at [58].

1. For these reasons, I will order that the respondent will pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

Dean P Morzone Judge