When Does a Terminally Ill Worker Recover Costs? Supreme Court Clarifies WCRA Costs Regime
Greenall v Amaca Pty Ltd (No 2) [2026] QSC 188 concerns the interaction between the costs provisions in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and the Court's general discretion under the UCPR and the Civil Proceedings Act. The case will be of particular interest to practitioners acting in terminal condition asbestos and dust disease claims, especially given the recent commencement of the 2025 Regulation.
Following judgment in favour of the plaintiff for damages arising from asbestos exposure, the Court was required to determine two issues. First, whether a successful terminally ill worker who had not participated in the statutory compulsory conference and written final offer process was entitled to recover costs at all. Secondly, whether costs were to be assessed under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) or the newly commenced Workers’ Compensation and Rehabilitation Regulation 2025 (Qld), which removed the recoverability of counsel's fees.
The Costs Issue
The defendant argued that s 318A of the WCRA operated as a complete code and prevented any costs order being made unless the circumstances fell within the prescribed costs provisions in Division 1. Because no written final offers had been exchanged, the defendant submitted there was no power to award costs.
Justice Smith rejected that submission.
His Honour held that although Division 1 was said to apply to terminal condition claims, the operative provisions in ss 312 to 314 were not engaged because neither party made a written final offer. Consequently, the statutory costs provisions simply had no work to do. Section 318A was therefore not engaged and did not displace the ordinary costs jurisdiction under s 15 of the Civil Proceedings Act 2011 (Qld) and r 681 of the UCPR.
The Court considered that the defendant's interpretation produced an unfair and commercially unrealistic result. Terminally ill workers are expressly exempted from compulsory conferences and written final offers under s 238 of the WCRA in order to facilitate the swift resolution of their claims. To conclude that exercising those statutory rights deprived a successful plaintiff of costs would undermine the purpose of the legislation.
Importantly, the Court relied heavily upon the reasoning in Anderson v Pickles Auctions Pty Ltd [2023] QCA 205, observing that the costs provisions in Chapter 5 Part 12 do not exhaustively regulate every possible costs outcome and do not displace the operation of the UCPR absent clear legislative language.
The judgment contains an extensive review of the legislative history from the WorkCover Queensland Act 1996 through the various amendments to the WCRA. Smith J that Parliament had consistently maintained a distinction between serious injuries and less serious injuries. Historically, claimants with serious injuries and dependants retained an entitlement to ordinary costs recovery, whereas costs restrictions were directed primarily at less serious claims. Nothing in the amendments introducing s 318A demonstrated a clear intention to abolish those existing rights.
The 2025 Regulation Issue
The second issue concerned whether the plaintiff's costs should be assessed under the 2014 Regulation or the 2025 Regulation. The distinction was significant because the 2025 Regulation was introduced following Anderson v Pickles Auctions Pty Ltd and expressly excluded counsel's fees.
The defendant submitted that the new Regulation was procedural in nature and therefore applied retrospectively to all assessments conducted after its commencement. The plaintiff argued that an accrued right existed to seek recovery of counsel's fees under the regime in force when the proceedings were commenced in 2021.
His Honour held that the plaintiff had at the very least, an accrued entitlement to seek costs, including counsel's fees, under the costs regime which existed when the proceedings were commenced. The Court relied upon established principles against retrospectivity and concluded that Parliament had not demonstrated a sufficiently clear intention to remove those accrued rights.
Emphasis was placed on the transitional provisions in regs 220 and 221 of the 2025 Regulation. The Court observed that the drafting assumed the existence of a notice of claim under s 275 of the WCRA. However, terminally ill workers are exempt from that requirement. Applying the Regulation literally would produce the anomalous outcome that claimants with less serious injuries retained access to counsel's fees through the transitional provisions, while terminally ill claimants lost that entitlement altogether. His Honour considered that result inconsistent with both the scheme and purpose of the legislation. The 2014 Regulation continued to govern the plaintiff's entitlement to costs and that counsel's fees remained recoverable.
Practical Significance
The decision will be cited frequently in future disputes concerning the interaction between the WCRA costs regime and the Court's general costs discretion. It confirms that where the statutory written final offer provisions are not engaged, the Court's general costs discretion remains available. It also confirms that terminally ill claimants who utilise the procedural exemptions afforded by s 238 do not thereby forfeit their entitlement to costs.
Of equal significance is the Court's treatment of the 2025 Regulation. The decision suggests that claimants whose proceedings were commenced before 1 September 2025 may continue to rely upon the 2014 costs regime, including the recoverability of counsel's fees, notwithstanding the subsequent repeal of that Regulation.
The judgment demonstrates the reluctance of the Court to construe legislative amendments as extinguishing accrued costs rights absent unmistakably clear language, particularly in long-running litigation where parties have conducted proceedings because of an established costs regime.
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