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[2026] ACTSC 337
Supreme Court of the ACT
2026-09-04
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Girvan v Civil Construction Hire Pty Ltd (No 3) Citation: [2026] ACTSC 337 Hearing Date: On the papers Decision Date: 4 September 2026 Before: Muller J Decision: (1) Order 5 of the orders made on 25 August 2026 is varied to read: (a) The plaintiff is to pay the first defendant’s costs of the application lodged on 19 June 2026. (b) The second defendant is to pay the plaintiff’s costs of the application insofar as the application relates to the second defendant. (c) The costs of the application are not to be assessed until the proceedings end. Catchwords: CIVIL PRACTICE AND PROCEDURE – INTERROGATORIES – Workplace Injury Claim – costs – where costs order was made – where alternate orders sought – consideration of principles Legislation Cited: Court Procedures Rules 2006 (ACT), rr 630, 1701 Cases Cited: In the matter of an application by Leanne Cover (No 2) [2024] ACTSC 251 Parties: Kerry Girvan (Plaintiff) Civil Construction Hire Pty Ltd (First Defendant) Huon Contractors Pty Ltd (Second Defendant) Australian Capital Territory (Third Defendant) Calvary Healthcare ACT Limited (Fourth Defendant) Base Contractors Pty Ltd (Fifth Defendant) Representation: Counsel D Richards (Plaintiff) N Sinnathurai (First Defendant) M Irmak (Second Defendant) J Steele (Third and Fourth Defendant) C Dudgeon (Fifth Defendant) Solicitors United Legal (Plaintiff) Wotton + Kearney (First Defendant) Barry Nilsson (Second Defendant) ACTGS (Third and Fourth Defendant) Hicksons (Fifth Defendant) File Number: SC 4 of 2025 MULLER J:
Ms Girvan sues five defendants in relation to a work injury she suffered at Googong in New South Wales (NSW). She makes application for leave to administer interrogatories pursuant to r 630 of the Court Procedures Rules 2006 (ACT) (the Rules) as against the First and Second Defendants, Civil Construction Hire Pty Ltd (Civil Construction) and Huon Contractors Pty Ltd (Huon).
On 25 July 2026 I determined Ms Girvan’s application and the following orders were made: (1) The plaintiff is to administer interrogatories for the examination of the Second Defendant within 14 days, limited to the issues of: (a) Whether the Second Defendant inspected the plant at the site, or supervised the Plaintiff, and the steps taken to ensure the provision and maintenance of safe plant at the site. (b) Whether the Second Defendant took any action to repair the pad roller between the dates the Plaintiff recorded damage to the pad roller in the various operator Daily Check lists and the date of her injury, and the scope of supervision of the plaintiff’s activities in that period. (c) Whether the Second Defendant conducted any took box talks in October- November 2021, identification of organisations on-site represented at toolbox talk meetings, and the substance of the matters communicated at any meetings in that period. (2) The Second Defendant is to give written answers to interrogatories within a further period of 28 days. (3) Any application seeking to set aside any interrogatories is to be filed within the period identified in order 2. (4) The Plaintiff’s application lodged on 19 June 2026, as it relates to the First Defendant, is dismissed. (5) Subject to order 6: (a) The Second Defendant is to pay the Plaintiff’s costs of the application insofar as the application relates to the second defendant. (b) The First Defendant’s costs are its own costs in the cause. (6) Where alternate costs orders are sought the parties have until close of business on 27 August 2026 to file written submissions limited to two pages.
Civil Construction and Huon have each sought alternative costs orders. Ms Girvan seeks a costs order in the form proposed in my previous orders.
Civil Construction’s Costs
Civil Construction submits Ms Girvan should pay their costs of the application. They say that it would not be fair for the benefit of the costs order to be subject to the outcome of the action as a whole because: (a) Civil Construction was wholly successful in resisting the interrogatories sought; and the application concerned the resolution of a discrete issue not dependent on the outcome of the proceedings as a whole; (b) Civil Construction wrote to Ms Girvan on 22 July 2026 explaining their issues with the interrogatories as proposed and inviting her to withdraw them. Ms Girvan did not respond to that letter; and (c) Ms Girvan has the benefit of a costs order against Huon.
Civil Construction notes the default position in r 1701 of the Court Procedures Rules 2006 (ACT) which relevantly is as follows: 1701 Costs—general provisions (1) The costs that the court may award— (a) may be awarded at any stage of a proceeding or after the proceeding ends; and (b) must be assessed in accordance with this part. (2) Unless the court otherwise orders, the award of costs for an application, or another interlocutory order, in a proceeding must not be assessed until the proceeding ends.
Civil Constructions also relies on the remarks of McCallum CJ in In the matter of an application by Leanne Cover (No 2) [2024] ACTSC 251. Her honour was there concerned with the determination of costs following an unsuccessful application for injunctive relief. Much of the discussion was concerned with the usual approach taken to costs in the context of an application for an injunction and as a consequence is of little assistance here. Ultimately her honour made an order for the defendant’s costs in the cause. She did so on the basis that a critical document which in her view would be determinative of the underlying dispute leading to the application for injunctive relief was not before her.
Her Honour observed at [11]: In any event, the important consideration is that, as a consequence of the fact that the draft report was not put before me, the alleged legal errors in the report have simply not been assessed by the Court. It is important in that context to recall that costs are not punitive. The issue for the Court is to determine what is the relevant “event” so that the Court can properly order that costs should follow the event. In the present case, the alleged legal errors have simply not been considered and I am in no position to judge what the fate of those arguments might be.
Civil construction contends the position in this case is different. The “event” was the reasonable necessity for the administration of interrogatories. The event having been determined in their favour, they are entitled to have their costs. I accept that argument.
Huon’s Costs
Huon submits the appropriate order as to costs is that there be no order as to costs, or in the alternative costs are to be costs in the cause.
Huon’s position is: (a) at the outset of the listing on 24 July, Ms Girvan’s counsel notified the Registrar that written submissions had been prepared on the way to court and were thus circulated whilst the matter was heard; (b) in essence leave was granted on the basis of those lately formulated written submissions, rather than the draft interrogatories appended to the application; (c) the position of Ms Girvan in the days prior to the application hearing was an unwillingness to further negotiate on the terms of the proposed interrogatories, contrary to their position at the hearing of the application; (d) the costs were incurred as a consequence of Ms Girvan’s failure to negotiate further as to the terms of the interrogatories.
The difficulty with the last submission is the correspondence forwarded by Huon to Ms Girvan’s solicitors on 8 July 2026. In that correspondence Huon raised a series of objections to the proposed interrogatories on various grounds. There was no concession from Huon that interrogation may be appropriate in the matter. The only compromise proposed was a further adjournment of the listing to enable the parties to attempt to narrow the scope of the objections that had been raised. By that time three weeks had already passed since the application was filed. On the day of the application hearing Huon became aware of the change in approach proposed by Ms Girvan and made the forensic decision to proceed with the application rather than seek an adjournment to enable them to address the written submissions received on that day. In the course of the oral submissions made on behalf of Huon at hearing there was no concession at all that leave should be granted, even on the basis of the amended form of interrogatories proposed.
As a consequence, I remain satisfied the appropriate costs order as it relates to Huon is the order I proposed previously.
On 4 September 2026, I received 4 paragraphs of written submissions from Ms Girvan’s Counsel. Those submissions do not alter my determination for the reasons given above. Orders
I make the following orders as to costs: (1) Order 5 of the orders made on 25 August 2026 is varied to read: (a) The plaintiff is to pay the first defendant’s costs of the application lodged on 19 June 2026. (b) The second defendant is to pay the plaintiff’s costs of the application insofar as the application relates to the second defendant. (c) The costs of the application are not to be assessed until the proceedings end.
I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 4 September 2026
Girvan
Civil Construction Hire Pty Ltd (No 3)