Shields v State of Queensland (unreported) No 75/2007
Supreme Court Application 10 February 2009
This recent Supreme Court application again highlights the
constraints of the Workers' Compensation and Rehabilitation
Act 2003 (the "WCRA") when it comes to awarding
costs in another's favour and how judicial creativity can be
used to restore equitable balance.
The plaintiff applied for leave to amend her statement of claim
on the eve of trial. The proposed amendments pleaded a completely
different description and cause of accident to that advanced at the
compulsory conference. The revised pleading reflected the content
of a video prepared by the plaintiff some years earlier and prior
to the compulsory conference. The plaintiff's solicitors had
failed to disclose the video although conceded that it ought to
have been disclosed. This rendered the compulsory conference a
wasted exercise as were some of the investigations carried out by
Ultimately, Justice McMeekin felt he had little choice but to
allow the amendment. When it came to awarding costs he recognised
that the WCRA prevented him from awarding costs in the
insurer's favour, other than in respect of the delayed
application to amend and in respect of costs thrown away prior to
the commencement of proceedings. His Honour recognised that he had
no power to award costs in the insurer's favour, for the period
after the claim was issued in the Court, pursuant to Sheridan v
Warrina Community Co-Operative Limited & anor  QCA
However, Justice McMeekin did declare that the previous
compulsory conference and written final offers were nullities, and
ordered that a further conference be held, and further offers be
His Honour was initially tempted to award indemnity costs
against the plaintiff's solicitors personally. Ultimately,
however, a standard costs order was made against the
plaintiff's solicitors, with their consent. His Honour thought
the case came close to one where an indemnity cost order would be
made, but not close enough. For such an order to be made, the
insurer would have needed to demonstrate something out of the
"ordinary, special or unusual".
(His Honour made no finding with respect to the validity of the
proceedings commenced following the original compulsory conference,
although on the principles in Australian Meat Holdings Pty Ltd
v Hamling  QCA 415, such proceedings would be considered
to be valid, but subject to discretionary strike-out. We assume
that if the matter proceeds beyond the re-ordered compulsory
conference, the parties will agree (or the plaintiff will seek an
order) that the original litigated steps be deemed to be valid
steps in the action.)
The decision is another example of the severe limitation the
legislation places on the Courts, in respect of costs, once a Court
claim has been issued.
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