Background
This costs decision followed the plaintiff’s success at trial against Amaca Pty Ltd. The Court had awarded $157,598.18, clear of the refund payable to WorkCover Queensland, to Philip Nigel Greenall as legal personal representative of Walter Greenall’s estate.
Walter Greenall was a worker with a terminal condition under Queensland’s workers’ compensation legislation. Such workers may bypass specified pre-court procedures, including a compulsory conference and the exchange of written final offers. No written final offers were made here. Amaca argued that s 318A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) therefore prevented any costs order; the plaintiff relied on the Court’s general costs powers. The parties also disputed whether the 2014 or 2025 workers’ compensation regulation governed recoverable costs, particularly counsel’s fees.
The Court’s Holding
Smith J held that s 318A did not bar an award of costs. Although the Act’s costs division applied generally to a worker with a terminal condition, its operative provisions concerning written final offers could not be applied because no such offers had been made. The general costs powers in s 15 of the Civil Proceedings Act 2011 (Qld) and r 681 of the Uniform Civil Procedure Rules 1999 (Qld) therefore remained available. Amaca was ordered to pay the plaintiff’s costs of the proceeding on the standard basis, subject to the separate order concerning the costs application.
The Court also held that the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), rather than the 2025 Regulation, governed the plaintiff’s costs. The plaintiff had an accrued, though contingent, entitlement to seek counsel’s fees after commencing the proceeding in 2021. Applying the 2025 regime to remove that entitlement would operate retrospectively and cause injustice, and the transitional provisions did not show an intention to produce that result. For the costs application, Amaca was ordered to pay indemnity costs on the s 318A issue and standard costs on the regulation issue.
Key Takeaways
- Section 318A does not eliminate the Court’s general power to award costs where the statutory written-final-offer provisions cannot operate because no offers were made.
- A terminally ill worker’s statutory ability to bypass pre-court procedures does not require the successful claimant to forfeit ordinary litigation costs.
- The plaintiff’s accrued entitlement under the 2014 Regulation included the ability to claim counsel’s fees and was not retrospectively removed by the 2025 Regulation.
Why It Matters
The decision preserves ordinary costs protection for successful terminal-condition claimants who use the expedited path expressly permitted by Queensland legislation. It rejects a construction under which bypassing written final offers would leave such claimants unable to recover any costs.
It also illustrates that procedural changes to a costs regime may not govern existing litigation when they would impair accrued or contingent rights. Courts will examine statutory purpose, transitional language, settled expectations and practical injustice before treating a new regulation as retrospective.