Plaintiff v Defendant

Supreme Court of Victoria|2008-10-20|Before: CAVANOUGH J

COSTS - Accident compensation - Common law claim - Statutory restrictions on orders as to costs - Costs of and occasioned by application at trial for leave to amend statement of claim - Costs of interlocutory steps in permitted common law industrial accident cases generally - Whether orders for costs may be made before outcome of entire proceeding is known - Held that requisite power exists - Orders for costs made accordingly - Accident Compensation Act 1985 ss 50(1), (2) and (2A), 134AB(12), (22), (27), (28), (29), (30), (31), Supreme Court Act 1986 s 24(1) - r 36.01, 47.04, 63.02, 63.03, 63.04, 63.17.

1 On 7 October 2008, for the reasons set out in my judgment of that date, I granted the plaintiff leave to amend her statement of claim. On 14 October 2008 the defendant applied for an order that the plaintiff pay its costs of and occasioned by the application to amend, including its costs thrown away by reason of the adjournment of the trial, its costs of the written submissions filed in connection with the application to amend, and its costs of the hearings on 7 and 14 October 2008.

2 The plaintiff submits that the Court has no power to make the order sought. Indeed she submits in effect that where a proceeding is brought pursuant to s 134AB of the Accident Compensation Act 1985 ("the Act") after a statutory offer was made or deemed to have been made[1], the costs of any interlocutory step in the proceeding cannot be dealt with individually but only as part of the overall costs of the proceeding, and then only in accordance with the regime specified in s 134AB(28), being a regime which operates by reference to the final outcome of the proceeding.

"(28) In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12) -

(a) if no liability to pay damages is established, the worker must pay the party and party costs of the employer, Authority or self-insurer and the worker's own costs;

(b) if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under subsection (12) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's party and party costs and its own costs;

(c) if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under subsection (12), the worker must pay the party and party costs of the Authority or self-insurer and the worker's own costs;

(d) if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under subsection (12) but less than 90 per cent of the worker's statutory counter offer under that subsection, each party bears its own costs -

and the court must not otherwise make an order as to costs."

4 The plaintiff submits that s 134AB(28) relevantly covers the field of possible orders as to costs in a proceeding which answers the description contained in the subsection's opening lines, namely a proceeding "for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12) ...". In that regard she emphasises the closing words of the subsection: "and the court must not otherwise make an order as to costs".

5 The plaintiff's counsel says that he is not aware of any other case under s 134AB in which the present submission has been put. It would be remarkable if no occasion for the making of the submission has arisen before, but the parties were unable to tell me with any specificity what, if any, practice has been followed to date by the courts in relation to orders as to the costs of interlocutory steps in proceedings under s 134AB. However the defendant's counsel has helpfully referred me to Footscray City Council v Ruzicka[2], a recent decision of the Court of Appeal relating to comparable provisions, to which I will come.

6 In my view, the Court does have power to make an order for costs in relation to the amendment, for the following reasons.

7 I do not accept that s 134AB(28) covers the relevant field. The natural reading of s 134AB(28) is that it applies only when the final outcome of the proceeding is known. It applies "if no liability to pay damages is established", or "if judgment is obtained or a settlement or compromise is made". It supplies particular rules to deal with each of the four situations specified in it. In going on to provide that "the court must not otherwise make an order as to costs", the subsection, in my opinion, merely emphasises that each rule is mandatory where it applies. In other words the court is not permitted to make any order that would be contrary to or inconsistent with the relevant rule.[3] The word "otherwise" has a range of meanings and shades of meaning. The Oxford English Dictionary, 2nd edition, gives as its first meaning, when used alone as an adverb:

"In another way, or in other ways; in a different manner, or by other means; differently."

In my view, that is the intended meaning of the word in s 134AB(28)[4], rather than the second meaning given (being the meaning on which the plaintiff would presumably rely), namely:

"In another case; in other circumstances; if the case be not so; if not; else."

8 Where a party seeks and obtains an indulgence from the court whereby additional costs are incurred on one or other or both sides, it is usual to require the party obtaining the indulgence to meet the additional costs, regardless of the eventual outcome of the proceeding as a whole and regardless of any prior offers or counter-offers in respect of the overall disposition of the case. To require the same approach to be taken in a proceeding commenced in accordance with s 134AB does not seem to me to be contrary to or inconsistent with the terms or the underlying policy of s 134AB(28), read in its context. Indeed the very purpose of the regime established by ss 134AB(12), (13), (14) and (28) is to encourage early and realistic attention to the true merits of a claim with a view to its speedy resolution with a minimum of legal costs. In Ruzicka[5], to which I will shortly return in more detail, Chernov JA inferred that comparable provisions in the Act had the purpose of eliminating or reducing the pursuit of proceedings to enforce claims for statutory compensation "without apparent effort to resolve them by negotiations or alternative dispute resolution".

9 Similarly, in Quama v Toll Transport Pty Ltd[6], in relation to the corresponding subsections of s 135A (dealing with injuries referable to employment prior to 12 November 1997), Gillard J said:

"Section 135A(13A - 13D, inclusive) deals with the costs consequences following the completion of the common law proceeding. The new procedure had as one of its objects, a requirement that the parties and their lawyers make realistic offers of settlement before the proceeding was commenced and it is clear from the costs provisions that the entitlement to costs depended upon the outcome compared with the statutory offers."

Although Gillard J was not considering an issue like the present, it is interesting to note that his Honour described the corresponding provisions as dealing with the costs consequences "following the completion of the common law proceeding".

10 To deny to the courts their usual powers in relation to the costs of interlocutory steps would enable either party (and especially a deep-pocketed party), either deliberately or accidentally, to cause undue delays and the piling up of undue legal costs on both sides, without fear of being required to indemnify the innocent party in that regard - and, worse still, with the prospect of recovering its own additional costs from the innocent party - except where the ultimate outcome, as measured in accordance with paragraphs (a)-(d) of s 134AB(28), happens to favour the innocent party.[7]

11 The Supreme Court's ordinary jurisdiction in relation to costs is conferred in the broadest of terms.[8] Subsection 24(1) of the Supreme Court Act 1986 provides:

"24(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid."

The County Court has the same broad jurisdiction.[9] In the Supreme Court, the power and discretion of the Court as to costs is to be exercised subject to and in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2005.[10] Rule 63.03(1) provides that the Court may in any proceeding exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding. Rule 63.04(1) provides that the Court may make an order for costs in relation to a particular question in or a particular part of a proceeding. Rule 63.17(2) provides that a party who amends a pleading or other document by leave shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment.

12 The discretionary power of the courts to deal with questions of costs in civil proceedings is long established, and, of course, there is a well established principle guiding the exercise of the discretion, to the effect that costs should generally follow the event. In Oshlack v Richmond River Council[11], Gaudron and Gummow JJ said of provisions like those of s 24(1) of the Supreme Court Act 1986 that they:

"attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.[12]"

Similarly, in Re JJT; Ex parte Victoria Legal Aid[13], Kirby J said[14]:

"A grant of power to a court to make orders as to costs will not, in the absence of a legislative indication to the contrary, be construed narrowly. This is because it is implied from the character of the donee of the power that it will be exercised judicially and in accordance with established legal principles. Because the recipient of the power here is the Family Court of Australia, a superior federal court of record, it would be contrary to principle for the power to be given anything other than the most liberal and ample construction."

13 While there is thus plenty of authority for a broad interpretation of statutory provisions conferring powers as to costs on courts, I am not aware of any unambiguous statement to the effect that particular statutory provisions purporting to exclude or limit the making of orders as to costs should be strictly or narrowly construed; and, as McHugh J noted in his dissenting judgment in Oshlack[15], legislatures have in many instances found reason to depart from the traditional costs formula by enacting specific legislation varying the incidence and reach of costs orders. On the other hand, s 24(1) of the Supreme Court Act 1986 itself provides that its terms are to take effect except where otherwise "expressly" provided. And in Clyne v Wrigley[16] Moffitt P, in holding that a power in a superior court to make "such order ... as it thinks fit" was wide enough to cover an order for costs, said[17] that "courts should be slow to read down powers conferred on them in wide and general terms so as to deprive themselves of a power to exercise a discretion to do that which is fit or just". In Oshlack, both in the judgment of Gaudron and Gummow JJ[18] and in the dissenting judgment of McHugh J[19], it was noted that for many years, both in England and in Australia, the jurisdiction to award costs has been regarded as necessary to avoid injustice.

14 Moreover, unlike some of the statutory examples referred to by McHugh J in Oshlack, s 134AB(28) does not exhibit any tenderness towards either the worker or the employer in terms of protecting them from the prospect of having to pay costs. Indeed it adopts the traditional approach that costs should follow the event, albeit with particular modifications to reflect the mandatory offer and counter-offer regime. It is hard to imagine that the author of those provisions intended that orders for costs should not be available in the usual way in relation to interlocutory steps. Indeed, had that really been the intention, the author had a model set of provisions to hand in the form of s 325 of the WorkCover Queensland Act 1996. Subsection (1) thereof provided:

"(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."

Subsections (2) and (3) made provision for the worker or the employer to pay costs depending on comparisons between offers made and awards of damages. Subsection (4) provided:

"(4) An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties."

Those provisions have been held to exclude the making of costs orders other than as prescribed within the four corners of the section[20], but the language of s 325 of the Queensland Act stands in stark contrast to that of s 134AB(28) of the Victorian Act. And, even in the Queensland Act, the Parliament thought fit to permit an order about the costs of an interlocutory application where the need for it was generated by unreasonable delay by one of the parties. Indeed, in the present case, the extreme lateness of the plaintiff's application to amend would probably have attracted the application of a provision like s 325(4) of the Queensland Act.

15 The proposition that s 134AB(28) of the Victorian Act is not exhaustive of the courts' power to make orders about[21] costs in proceedings which answer the description contained in the chapeau of the subsection is supported by the very next subsection, namely s 134AB(29), which makes provision in general terms concerning the taxing of costs "in proceedings to which this section applies", thus referring to a broader concept than the concept conveyed by the chapeau of subsection 28. In addition, ss 134AB(30) and (31) provide for the making of orders and awards in respect of solicitor-client costs on the worker's side.[22] Even more significant, perhaps, is s 134AB(27), which provides:

(a) in proceedings relating to an application for leave of the court under subsection (16), costs are to be awarded against a party against whom a decision is made; and

(b) unless subsection (28) applies in proceedings for the recovery of damages in accordance with this section -

(i) if no liability to pay damages is established, costs are to be awarded against the claimant; and

(ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and

(iii) if damages are awarded, costs are to be awarded against the Authority or selfinsurer."

16 On its face, s 134AB(27)(b) refers to, and indeed requires, the making of specified kinds of costs orders in specified situations in common law proceedings under s 134AB "unless subsection (28) applies". However, it is difficult to understand the intended operation of s 134AB(27)(b) because, as the Act stood after that provision was introduced[23], there was apparently no proper scope for a proceeding to be commenced in the absence of a prior statutory offer or deemed statutory offer. The wording of s 134AB(27)(b)(i) ("if no liability to pay damages is established") matches exactly the corresponding wording of s 134AB(28)(a). The wording of s 134AB(27)(b)(iii) ("if damages are awarded") is fully covered by the corresponding wording of paragraphs (b), (c) and (d) of s 134AB(28). So it seems that subsection (28) would have applied, to the exclusion of ss 134AB(27)(i) and (iii), in every case to which the latter provisions would otherwise have applied.[24] Subsequently, s 135BA has been introduced whereby, on certain conditions, terminally ill workers can commence proceedings that would otherwise have been subject to s 134AB without going through the steps prescribed by the section, but that development may throw no light on the intended operation of s 134AB(27)(b)(i) and (iii). On the other hand, however, s 134AB(27)(b)(ii) may well have potential separate work to do, having regard to the thresholds set out in provisions such as s 134AB(22)(a) and (b). A case where "damages are assessed but cannot be awarded under this section" (to use the words of s 134AB(27)(b)(ii)), would not fall within paragraph (b), (c) or (d) of s 134AB(28)[25], and such a case presumably would not fall within paragraph (a) either, because such a case is treated by s 134AB(27)(b)(ii) itself as being different from a case where "no liability to pay damages is established", that being the language of both s 134AB(27)(b)(i) and of s 134AB(28)(a). So it seems that this may well be one more express exception in s 134AB itself to the suggested "rule" that s 134AB(28) is exhaustive, in addition to the apparent exceptions in subsections (29), (30) and (31). This particular exception would only operate at the stage where the outcome of the proceeding is known. However I think that, read cumulatively, these apparent exceptions are such as to "prove" (ie test, and, in this instance, demolish) the suggested "rule", even apart from the other considerations of language and policy to which I have so far referred, and even apart from the considerations of precedent to which I am about to refer.

17 I turn now to Footscray City College v Ruzicka[26] in more detail. That case turned on the provisions of the Act bearing on the award of costs in respect of claims for statutory compensation, including weekly payments under s 93 and lump sum payments under ss 98 and 98A, as distinct from common law damages. The relevant provisions were closely similar in some ways to the provisions presently in question, but there were important differences too. Further, the issue between the parties related to the availability of costs in a particular situation where the final outcome of the proceeding was known, as distinct from an interlocutory situation.

18 However the holding in Ruzicka is, I think, supportive of the interpretation which I favour of the provisions presently in question. In that case, as in this, provisions erecting a mandatory offer and counter-offer process were involved. Building on those provisions, subsections (1), (2) and (2A) of s 50 provided:

"(1) Subject to this Act, in proceedings before the County Court under this Act or the Workers Compensation Act 1958 being proceedings brought by a person other than the Authority, employer or a self-insurer, the Court -

(a) must award costs against the party against whom a judgement or decision is made; and

(b) may, if it considers it appropriate, include in an order under paragraph (a) an award of costs to the representative of a worker in whose favour a judgement or decision is made; and

(2) Nothing in subsection (1) applies to proceedings brought by the Authority, employer or a selfinsurer

(2A) In proceedings before the County Court under this Act which relate to a claim under section 98 or 98A, if a judgment or order is made by the County Court for the payment of an amount of compensation to the claimant -

(a) which is not less than 90 per cent of the claimant's counter statutory offer but is greater than the statutory offer made by the Authority, employer or self-insurer - the Authority, employer or self-insurer must pay the claimant's party and party costs and must bear their own costs; or

(b) which is equal to or less than the statutory offer made by the Authority, employer or self-insurer - the claimant must pay the party and party costs of the Authority, employer or self-insurer and bear his or her own costs; or

(c) which is greater than the statutory offer made by the Authority, employer or self-insurer but less than 90 per cent of the counter statutory offer made by the claimant - each party must bear their own costs -

and the County Court must not otherwise make an award of costs."

The Court of Appeal held that the prohibition in subsection (2A) against the court "otherwise" making an award of costs did not apply to a claim under s 98 or s 98A which failed completely. In that situation, s 50(1) operated to compel the losing party to pay costs. In effect, though not in terms, the Court of Appeal interpreted the word "otherwise" as having been used with a connotation of inconsistency rather than of exclusivity.

19 Ruzicka is also important because it explained and distinguished Civic Workers Plus Pty Ltd v Hill[27], an earlier decision of the Court of Appeal. In Hill, Ormiston JA had said that he did "not think that it was intended that subs (1) should provide a 'backstop' for cases which happen to fall outside the provisions of subs (2A)".[28] Phillips JA referred to a Parliamentary intention disclosed by s 50(2A) to "put in place a comprehensive and all embracing regime for costs" in respect of claims under s 98 and s 98A".[29] Buchanan JA expressed the view that s 50(2A) was "intended to provide a comprehensive regime dealing with the costs of all actions brought to recover compensation under ss 98 and 98A of the Act". However in Ruzicka, Chernov JA[30] noted that the observations along those lines in Hill were obiter. Chernov JA explained[31] that the issue in Hill was whether, where an insurer was deemed to have made an offer of nothing, and the claimant was deemed to have made a counter-offer of the maximum sum claimable, those acts respectively amounted to a "statutory offer" and a "counter statutory offer" for the purpose of invoking the costs provisions in s 50(2A); and that the Court of Appeal in Hill had held that they did. Chernov JA proceeded[32]:

"19 It is in these circumstances that the members of the Court came to make the general observations concerning the operation of sub-s (2A) on which the respondent relies. Their Honours, of course, did not have the benefit of argument on the issue presently before us and, more importantly, were not required to resolve it. The context in which the observation was made makes it apparent that the members of the Court did not intend to lay down a definitive construction of the provision. The same conclusion applies, I think, to the speculative observation of Beach J to which I have referred, namely, that '[i]t may well have been the intention of the legislature to ensure that the practice continued in respect of claimants who make claims under s 98 or 98A and whose claims are unsuccessful'.[33] What his Honour said is, in the circumstances, unpersuasive for present purposes. It is plain enough that the learned judge was there speaking of the practice that existed prior to the introduction of s 50 when, it would seem, the court, in the exercise of its discretion, did not compel the unsuccessful claimant for lump sum compensation to pay costs.

But, as has been noted, that 'practice' was effectively abolished in 1992 by s 50 which compelled the unsuccessful claimant to pay the respondent's party and party costs. For the reasons given, this requirement continued to be part of s 50 except to the extent that the costs regime in respect of successful s 98/98A claims was effectively removed from the ambit of sub-s (1) by the words 'Subject to this Act' and was exhaustively dealt with by sub-s (2A).
For these reasons, I think that sub-s (1) compelled the judge in this case to have awarded costs of the proceedings to the applicant on a party and party basis."

20 In the present case, counsel for the plaintiff submits that Ruzicka itself should be distinguished, on the basis that the interpretation adopted in Ruzicka depended in part on the presence of the comma which appears in the chapeau of s 50(2A) and which, she submits, has no counterpart in s 134AB(28). In Ruzicka, in that regard, Chernov JA had said[34]:

"14 First, I think that an ordinary reading of the words of the section in the context of the Act[35] makes it apparent enough that the words of prohibition in sub-s (2A) are intended to apply only to the situation where there has been an order for compensation in favour of the claimant. It seems to me that the comma in the third line of the provision, rather than supporting the respondent's argument that it compels the sub-section to read that the prohibition applies in respect of all s 98/98A proceedings, supports the opposite view. The comma, I think, is not a mere reflection of grammatical correctness but demonstrates that the legislature intended to place a demarcation between the words preceding the comma and those following it such that the mandatory provisions in paras (a)-(c), and thus the concluding words of the sub-section, apply only to the situation where an order for compensation has been made.[36] The hyphen at the end of para (c) does not constitute a further demarcation such as to suggest that the opening lines of the sub-section are also to fall within the prohibition prescribed at the end of the provision. It seems to me that the opening words of sub-s (2A) do no more than provide a description of the proceeding in respect of which the court is compelled to award costs in accordance with one of the succeeding paragraphs, "if" (but only if) an order for compensation is made. Consistently with this conclusion, it is equally apparent on an ordinary reading of s 50 that it requires, by para (a) of sub-s (1), the court to award costs in favour of the respondent to an unsuccessful s 98 or 98A application."

21 Though a comma is not used in the corresponding part of s 134AB(28), in my view an equivalent line of demarcation (perhaps an even clearer one) is apparent in that provision. The opening words of the subsection (up to "under subsection (12)") are physically marked off from all of the words that follow them by a dash and by the use of indenting, new lines and new paragraphs. Moreover, the placing of a self-contained conditional clause at the beginning of each of paragraphs (a), (b), (c) and (d) serves to distance those paragraphs grammatically from the opening words of the subsection and to bring them into closer union with the closing words.[37] The combined effect is at least as strong as that of the comma in s 50(2A).

22 I do not think that Ruzicka can be distinguished on the basis that the Court of Appeal resorted to s 50(1), rather than the County Court's ordinary powers as to costs, to identify the source of the County Court's power as to costs in that case. In Ruzicka the final outcome was known. Subsection 50(1) therefore supplied a rule for the award of costs. It displaced any discretion the County Court might otherwise have had. Subsection 50(1) had apparently been enacted to ensure that the old practice[38] of making no orders as to costs in workers compensation cases was not applied in relation to claims for statutory compensation under the Act. No such practice had ever existed in common law industrial accident cases, and in any event s 134AB(27) puts the matter beyond doubt for the purposes of common law proceedings under s 134AB.

23 The defendant took me to the Minister's second reading speech for the legislation that introduced s 134AB. The Minister referred to the reinstatement of common law rights "subject to limitations and conditions imposed by the sections in relation to, among other things, the discretion of the court to order costs". The defendant submits that this implies that the courts are to retain some discretionary power over costs, albeit subject to "limitations and conditions". No discretion is allowed by s 134AB(28) itself. So, according to the submission, there must be a residual discretionary power for at least some cases not covered by s 134AB(28). It is a submission that draws a long bow. I would accord the Second Reading Speech only minimal weight in this regard.

24 Having regard to all of the considerations to which I have referred, I do not accept the plaintiff's legal submission as to the effect of s 134AB(28), and I conclude that the courts do have power to make orders at any stage as to the costs of interlocutory or other individual steps in a proceeding under s 134AB, including the costs of and occasioned by applications to amend, and that therefore I have the requisite power in this case.

25 Turning to the merits of the application for costs, I note that the plaintiff's counsel acknowledged[39] that "it is hard for us to resist an order that we effectively pay the costs associated with the fact that the trial didn't proceed because of the late application to amend the pleadings". I agree. The plaintiff must pay those costs.

26 The plaintiff contends, however, that because she has been successful in obtaining leave to amend over the opposition of the defendant, and because the defendant had had time to consider its position after the trial was aborted, and because of the unpersuasive features of the defendant's written submission to which I particularly referred in my judgment of 7 October 2008, she should have an order in her favour for the costs of the application to amend, including the costs of the written submissions and matters incidental thereto.

27 It is correctly stated in Williams, Civil Procedure Victoria[40], that, as a general rule, an amendment will only be allowed on terms that the costs of the application for leave to amend, and of and occasioned by, and thrown away in consequence of the amendment shall be paid by the party amending in any event. On the other hand, in some cases it may be appropriate to reserve the costs of an amendment for the trial judge to award.[41] Indeed, in Public Trustee v Nash[42], a party held to have unreasonably opposed an application for leave to amend was ordered to pay the costs of the application, and the costs of the amendment were made costs in the cause.

28 The plaintiff's counsel accepted[43], however, that he could not submit that the defendant's opposition to the application for leave to amend was unreasonable. The defendant had had only a limited time to consider the plaintiff's application. The final form of the proposed amended statement of claim was not settled until the last day for service of the plaintiff's affidavit and initial written submissions, namely 27 February 2008. I note also that the defendant consented to the proposed amendments relating to its health and safety manuals and policies after receiving the plaintiff's initial written submissions.

29 Nevertheless, in the unusual circumstances of this case as detailed in paragraphs 12-15 of my judgment of 7 October 2008, both parties' written submissions (and my judgment) went into substantially more detail than would have normally been sufficient for a pleading application. Although for the reasons set out in my judgment I have not finally answered the question whether the plaintiff is entitled to rely on the sending of the letters in question as alleged negligence, a great deal of work bearing on that question has been done on all sides, and it will all remain available for the consideration of the trial judge. Had the question been duly isolated as a preliminary question and answered in favour of one party or the other, the successful party would have had a sound basis for seeking the costs, or at least part of the costs, of the exercise.[44] I was very comfortably satisfied of the arguability of the plaintiff's position.

30 In all the circumstances, it seems to me that the fairest and most appropriate course is to treat the costs of the written submissions separately and to order that they be reserved to the trial judge. However, the plaintiff will be ordered to pay the defendant's costs thrown away as a result of the aborting of the trial, including the costs of the hearing on 21 February 2008, together with the costs thrown away as a result of the amendment. The costs of the hearings on 7 October 2008, 14 October 2008 and today should also be paid by the plaintiff because she was largely unsuccessful on the question of costs and because the hearings were otherwise made necessary as a consequence of the amendment.

31 It follows that the plaintiff will be required to abide her own costs thrown away as a result of the aborting of the trial, including her own costs of the hearing on 21 February 2008 and her own costs thrown away as a result of the amendment, together with her own costs of the hearings on 7 October 2008, 14 October 2008 and today. The defendant has indicated that it consents to an order staying the orders as to costs until the trial and determination of the proceeding, or further order.

[1] The debate has proceeded on the basis that a statutory offer was made or was deemed to have been made in this case.

[2] [2007] VSCA 136; [2007] 16 VR 498. Counsel for the defendant also helpfully took me to certain other authorities referred to in that case and to R v Scarlett; Ex parte McMillan (1972) 20 FLR 349 at 351 and to extracts from the Minister's Second Reading Speech in respect of s 134AB. See further below.

[3] Compare Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214; and compare also the former s 478(2) of the Migration Act 1958 (Cth) which provided that the Federal Court "must not make any order allowing or which has the effect of allowing an applicant to lodge an application outside the period specified in [s 478(1)(b) of that Act]" and the cases which considered that provision collected in Abidin v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 237.

[4] For a similar conclusion in relation to the expression "otherwise provided" in s 79 of the Judiciary Act 1903 (Cth), see Northern Territory v GPAO (1998) 196 CLR 523 at 587-588 [78]-[81].

[7] Compare Shannon v Lee Chun [1912] HCA 52; (1912) 15 CLR 257 at 266 per Isaacs J.

[8] See generally G. Dal Pont, Law of Costs, 2003 at [6.2] - [6.6].

[12] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205.

[13] [1998] HCA 44; (1998) 195 CLR 184 at 201 [41], citations omitted.

[14] Kirby J's judgment was a dissenting one, but the statement quoted is not inconsistent with the decision of the majority. It was recently cited and applied by the Full Court of the Supreme Court of South Australia in Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307 at [66]. See also G. Dal Pont, op. cit, at [6.6].

[15] [1998] HCA 11; (1998) 193 CLR 72 at 104-105 [85]. See the examples there mentioned.

[16] [1980] 1 NSWLR 599 at 601 (CCA).

[17] Ibid, as noted in Dal Pont, supra, loc cit.

[20] See Sheridan v Warrina Community Co-operative Ltd [2004] QCA 308, esp at [6], [22], [24], [37]. See also Aziz v Prestige Property Services Pty Ltd [2007] QSC 277 and cases there cited.

[21] To adopt the word used in ss 325(1) and (4) of the Queensland Act.

[22] In Quama v Toll Transport Pty Ltd [2003] VSC 404, supra, Gillard J considered an application for an award of solicitor-client costs under the corresponding provisions of s 135A of the Act.

[23] That is, when s 134AB as a whole was first enacted.

[24] Unless, perhaps, a proceeding commenced in defiance of s 134AB(12) was allowed by the defendant to proceed regardless: compare Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364.

[25] See and compare Ruzicka [2007] VSCA 136; (2007) 16 VR 498 at 501 [7].

[30] With whom Warren CJ and Maxwell P agreed.

[33] Harvey v Frontline Australasia Pty Ltd [2001] VSC 77, [25].

[35] Nokes v Doncaster Amalgamated Collieries Ltd [1976] UKHL 6; [1940] AC 1014, 1022 (Viscount Simon LC); Kingston v Keprose (No 2) (1987) 11 NSWLR 404, 423 (McHugh J); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305-6 (Gibbs CJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow and Hayne JJ).

[36] For examples where the court considered that the comma was used by the drafter to demarcate words, or serve a particular purpose, thus facilitating the proper construction of the provision see Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633, 636 (Gibbs ACJ); Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522, 525 (Toohey and McHugh JJ).

[37] The closing words must of course be read as being applicable to each of paragraphs (a), (b), (c) and (d), not merely paragraph (d): see R v Scarlett; Ex parte McMillan (1972) 20 FLR 349 at 351 and see also Pearce and Geddes, Statutory Interpretation in Australia, 6th edition at [12.3].

[38] Referred to by Beach J in Harvey v Frontline Australasia Pty Ltd [2001] SC 77 [25] and in turn referred to by Chernov JA in Ruzicka at [19]-[21]: see above.

[41] Ibid, citing Roe v Davies (1876) 2 Ch D 729 at 735; Bromell v Robertson [1886] VicLawRp 117; (1886) 12 VLR 560.

[42] (1921) 38 WN (NSW) 142. Cited in Williams, loc cit.

[44] See r 63.04; and Bunnings Group Limited v Laminex Group Limited [2006] FCA 682; Kennedy Taylor (Vic) Pty Ltd v Crown Ltd [2001] VSC 343.

Compensation Act 1985

Court (General Civil Procedure) Rules 2005

WorkCover Queensland Act 1996

Compensation Act 1958

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