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Same Injury, Different Descriptions - What About Costs?
16 August 2013
Ley v Woolworths Limited (No 2)  QSC 193 (the Ley case)
Muckermann v Skilled Group Limited & Anor (No 2)  QSC 194 (the Muckermann case)
In each case North J of the Supreme Court in Townsville was required to consider whether his previous decision to award the costs of an Application to the successful Applicant Claimant/Plaintiff was correct, having regard to the provisions of sections 316 and 318C of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
In both matters the Applicant had sought a declaration that the injury referred to in the statutory claim was the same as that listed in answer to Question 41 of the Notice of Claim for Damages thereby entitling the Applicant to seek damages.
In the Ley case, the Application was brought during the pre-proceedings phase whereas in the Muckermann case court proceedings had already been instituted.
In the Ley case, the Respondent had contended that the injury specified in the Notice of Assessment (occurring on a specific date) did not correlate with the injury claimed in the Notice of Claim for Damages (occurring over a period of time). In making the declaration, His Honour confirmed that a Notice of Assessment is issued for an "injury" rather than an "event" and a Claimant's entitlement to seek damages for an injury will not be affected in most circumstances where there is a variation in the description of the injury (including the date of injury) between the statutory claim and the Notice of Claim for Damages.
In the Muckermann case, North J likewise made the requested declaration in circumstances where there was a variation in the description of the event causing injury.
In each case His Honour ordered the unsuccessful Respondent to pay the Applicant's costs of and incidental to the Application. Each Respondent brought a further Application opposing the Costs Order upon the basis there is no power for the Court to make an order for costs following a successful Application for a declaration given the provisions of section 316(1) and section 318C of the Act which state respectively:
"316 Principles about orders as to costs
•(1) No order about costs, other than an order allowed under this section, is to be made by the court in the claimant's proceeding."
"318C Costs order under div 2 for an interlocutory application
An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties."
As the Applicant in each matter sustained a WRI of less than 20%, sections 316(1) and 318C of the Act were relevant.
In the Ley case, North J determined that section 316(1) only applied to a situation where there were existing court proceedings and not to an Application in the pre-proceedings phase. Consequently, section 318C (as a qualification of the court's power to order costs) did not apply.
In his decision in the Muckermann case (which was delivered on the same day as the Ley decision) North J found that whilst this Application had been brought in a matter where court proceedings had been commenced, a distinction should be made between an Application concerning a dispute about a step in an action and an Application, such as the one made by the Applicant, seeking a declaration "about rights that may in a general sense concern or touch upon the action". His Honour determined that section 316(1) of the Act should only apply to an Application pertaining to a step in an action which "forms part of the progression from claim to final judgment in that proceeding". Having decided that section 316(1) had no application to the question of costs in the Muckermann case, North J again determined that section 318C did not apply as it was merely a qualification of the power to be exercised under section 316(1).
Both of these decisions reflect the strong view of His Honour Judge North that an Applicant seeking to defend his/her right to claim for an injury in circumstances where there has been some variance in either the description or date of injury between the statutory claim and the Notice of Claim for Damages should be awarded costs of and incidental to the Application, whether this takes place during the pre-proceedings phase or within litigated proceedings.
For more information contact:
Susan Isaac | Associate
t +61 7 3224 0356
f +61 7 3224 0333
Cameron Seymour | Partner
t +61 7 3224 0360
f +61 7 3224 0333