SUPREME COURT OF QUEENSLAND

CITATION:	Greenall v Amaca Pty Ltd [No 2] [2024] QCA 169	
PARTIES:	PHILIP NIGEL GREENALL as the Legal Personal Representative of the Estate of the Late WALTER GREENALL
(first appellant)
AUDREY GREENALL a person under a legal disability, by her Litigation Guardian PHILIP NIGEL GREENALL
(second appellant)
v
AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD)
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)	
FILE NO/S:	Appeal No 12581 of 2023
SC No 14063 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal – Further Order	
ORIGINATING COURT:	
Supreme Court at Brisbane – [2023] QSC 137 (Crowley J)	
DELIVERED ON:	10 September 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	Heard on the papers	
JUDGES:	Morrison JA and Fraser AJA and Kelly J	
ORDER:	The appellants pay the first respondent’s costs of and incidental to the appeal.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellants were unsuccessful on appeal – where the appellants and first respondent provided further submissions on the issue of costs – where the second respondent does not seek any order for costs and no order for costs is sought against it – where the first respondent submits the appellants should pay costs – where the appellants submit the first respondent should pay their costs of the appeal or, alternatively, that there should be no order as to costs – whether there are special or exceptional circumstances which warrant depriving a successful party of its costs
Uniform Civil Procedure Rules (Qld), r 766(1)(d)
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, distinguished
Greenall v Amaca Pty Ltd [2024] QCA 132, cited
Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348, cited
Nine Network Australia Pty Ltd v Wagner [2021] QCA 84, applied	
COUNSEL:	J M Hewson for the appellants
B F Charrington KC, with A S Kitchin, for the first respondent
No appearance for the second respondent	
SOLICITORS:	Segelov Taylor Lawyers for the appellants
Holman Webb lawyers for the first respondent
No appearance for the second respondent	
[1]	THE COURT:  The Court dismissed the first and second plaintiffs’ appeal against the primary judge’s orders striking out so much of their amended statement of claim as pleaded a wrongful death claim by the first plaintiff for the benefit of the second plaintiff against the first defendant and answering “no” to the question whether the first plaintiff could maintain the claims pleaded in that part of the amended statement of claim.  The appellants and the first respondent have now exchanged submissions about costs pursuant to leave granted to the parties for that purpose.  No party makes a submission about the costs ordered in the Trial Division.  The first respondent and the second respondent were separately represented in the appeal, but the second respondent does not seek any order about costs and no order for costs is sought against it.  The first respondent seeks an order that the appellants pay its costs of the appeal.  The appellants seek an order that the first respondent pay their costs of the appeal or, if that submission is not accepted, that there be no order as to costs.
[2]	The appeal turned upon the proper construction of subsections of s 237 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).  The Court affirmed the primary judge’s decision that s 237(1) and (5) abolished the right of the first appellant to bring a wrongful death claim against the first respondent for the benefit of the second appellant.  The appellants were therefore wholly unsuccessful in their appeal and the first respondent was wholly successful.
[3]	The first respondent relies upon the principle that, although a decision about the costs of an appeal is discretionary, the unsuccessful party is usually ordered to pay the successful party’s costs: see Nine Network Australia Pty Ltd v Wagner.  The first respondent submits that there are no circumstances justifying a departure from the usual order that costs follow the event.
[4]	The appellants submit that a departure from the usual order is appropriate.  The circumstances upon which the appellants rely for that submission include that the appellants brought their appeal bona fide, the issue as to whether the right of the first appellant to bring a wrongful death claim for the benefit of the second appellant was abolished by s 237 of the Workers’ Compensation and Rehabilitation Act 2003 had not been determined previously, and that whilst the decision in Karanfilov v Inghams Enterprises Pty Ltd  was significant in the appeal, the issue in that case was different, and legislative amendments in response to that decision were also considered in this appeal.  Circumstances of that general character are not unusual.  They do not of themselves support a departure from the usual order that costs follow the event.
[5]	The appellants also rely upon the circumstance that the first respondent is and likely will continue to be a frequent defendant in claims for personal injury resulting from exposure to asbestos it had manufactured and supplied throughout Australia.  The appellants submit that the first respondent has therefore benefitted from the appeal, not merely by defeating the appellants’ wrongful death claim, but also by obtaining a favourable intermediate appellate court determination of a previously undetermined question of law.  It is submitted that this situation is analogous to CSR Ltd v Eddy, in which the High Court (Gleeson CJ, Gummow and Heydon JJ; McHugh and Callinan JJ dissenting upon this issue) ordered CSR to pay the costs of an appeal even though it was the successful party in the appeal.
[6]	The substantive issue in CSR Ltd v Eddy was whether a plaintiff in a claim for damages for personal injuries was entitled to recover a particular head of damages for personal injury known as “Sullivan v Gordon damages”.  The High Court held that this head of damages was not recoverable.  The majority explained the costs order in the following passage of their judgment:
“It is notorious that over many years the first appellant and other members of the group of companies to which it belongs mined asbestos, and manufactured and supplied asbestos-based products.  Very large numbers of their employees have been exposed to asbestos; many of them have contracted asbestosis and mesothelioma as a result; many admissions or findings that these diseases were caused by their negligence in this respect have been made; many will be made in future.  The appellants challenged Sullivan v Gordon below, applied for special leave to appeal, and prosecuted the appeals, in order to vindicate their long-term commercial interests, for success will unquestionably tend to reduce the quantum of damages payable by them in asbestos-related litigation, of which, unfortunately, there appears likely to be a large quantity in future years.
In contrast, the plaintiff had no interest in the legal position beyond this particular litigation.  Since the plaintiff's death the same is now true of the respondent, the administrator ad litem.  It was entirely reasonable for the plaintiff to seek an award of Sullivan v Gordon damages in the Dust Diseases Tribunal of New South Wales, since that court was bound by the decision of a five-judge Court of Appeal in that case.  The challenge to Sullivan v Gordon before the primary judge (which was inevitably rejected), in the Court of Appeal (which was not surprisingly repelled) and in this Court (which has succeeded) made this case a test case, designed to resolve a conflict amongst the intermediate appellate courts of the States and the Australian Capital Territory.  It is common in this Court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side's costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side.  At the hearing of the special leave application, the respondent contended that special leave should only be granted on terms of that kind.  The application was reserved to be dealt with on the hearing of the appeals.  The appellants contend that these terms should not apply because of the costs offers made in June 2003, and because the appeals to this Court were only rendered necessary because of the plaintiff's decision to institute the proceedings in New South Wales (where Sullivan v Gordon applied) rather than South Australia (where it did not).  These matters do not make the imposition of the terms requested by the respondent unjust.  In the circumstances described above, it is appropriate that those terms as to costs apply.  They are reflected in the orders proposed below, para 2 of which will leave the costs orders of the Court of Appeal undisturbed.”
[7]	The analogy between this case and CSR Ltd v Eddy is that, in each case, the unsuccessful party’s interest in the appeal lay only in that party’s claim, whereas the successful party also benefitted from the precedent established by the appellate court’s decision upon the relevant question of law.  However, there are very substantial differences between the cases.  First, in deciding upon the costs order in CSR Ltd v Eddy, the majority exercised the High Court’s discretionary power to impose a condition upon a grant of special leave to appeal, a decision upon the exercise of that power having been reserved to the hearing of the appeal when special leave was granted.  Leave to appeal was not required in this matter.  In any case, the appeal was brought by the plaintiffs rather than by the first defendant.  This Court’s power to order costs is therefore confined to the discretionary power identified above, in relation to which the usual order is that costs follow the event.  Secondly, it is significant for the exercise of that discretionary power that it was the appellants, not the first respondent, who chose to challenge the reasoned decision of the primary judge.  In these circumstances, the fact that the first respondent incurred legal costs in supporting the primary judge’s correct decision strongly favours the usual order as to costs.  Thirdly, the issue in CSR Ltd v Eddy concerned the content of the Australian common law, about which there was conflicting intermediate appellate court authority.  The appellants did not submit that the relevant provisions of the Workers’ Compensation and Rehabilitation Act 2003 have any counterpart in legislation outside Queensland, nor did they cite any  authoritative decision in their favour.  Indeed, although the most relevant of the authorities cited in the appeal, Karanfilov v Inghams Enterprises Pty Ltd, did not decide the issue in this appeal, the reasoning of the majority in that case was plainly irreconcilable with the appellants’ argument.
[8]	The appellants point out that, although the first respondent relied upon Karanfilov v Inghams Enterprises Pty Ltd in argument at the hearing of the appeal, before the primary judge the first respondent cited that case only in relation to a head of damages other than that which was in issue in the appeal.  This point has no significance for the appropriate costs order in circumstances in which it was the appellants who commenced the litigation in the Court of Appeal, Karanfilov v Inghams Enterprises Pty Ltd was a reported case, it had been brought to the appellants’ attention in the Trial Division (albeit as an authority upon a different point), and the appellants persisted in their appeal after the first respondent had cited that case as authority upon the issue in the appeal.
[9]	While the circumstances naturally engage sympathy for the position of the second appellant, the widow of the deceased worker whose illness and death were admittedly caused by the first respondent’s negligence, the matters upon which the appellants rely, considered individually and together, do not justify a departure in the appellants’ appeal from the usual order that costs follow the event.  The appropriate order is that the appellants pay the first respondent’s costs of and incidental to the appeal.