A worker with a terminal condition can go almost straight to court. Section 238 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) releases them from the election under s 239, from the compulsory conference, and from the exchange of written final offers. What nobody had decided was what that concession does to costs when the worker then succeeds at trial and neither side has made a written final offer at all.
On 14 August 2026, in Greenall v Amaca Pty Ltd (No 2) [2026] QSC 188, Smith J answered it. The defendant’s position was that the answer is no costs at all. Section 318A, set out at [35], provides that a court “may make no order about costs to which division 1, 2 or 2A applies except the orders for costs provided for in the division”, and Division 1 governs a worker with a terminal condition by force of s 240(3). No written final offer means no order under s 312 or s 313, and on that reading the court’s power was exhausted.
His Honour rejected it at [42], and went on to hold that the Workers’ Compensation and Rehabilitation Regulation 2025 (Qld), which removed counsel’s fees when it commenced on 1 September 2025, does not reach back into claims already on foot. Both points matter well beyond the case.
What the Court decided
| Question | How it arose | What the Court held | Effect |
|---|---|---|---|
| Does s 318A bar any costs order where neither side made a written final offer? | The defendant’s primary submission, at [5] and [18] | No. Division 1 applied by s 310, but its operative part did not: “As no WFOs were made under ss 312 and 313, they are inapplicable”, at [41] | Held. Decided the first issue |
| If s 318A is not engaged, what governs? | The plaintiff’s answer, at [6] | Section 15 of the Civil Proceedings Act 2011 (Qld) and r 681 of the UCPR, there being “no express provision prohibiting the award of costs in a matter such as this”, at [43] | Held. The argument that succeeded |
| Does the 2025 Regulation apply, excluding counsel’s fees? | The defendant’s submission that costs are procedural, at [129] | No. Regs 220 and 221 “evince a clear parliamentary intention that the 2025 Regulation was not to affect an accrued right to seek costs with respect to existing claims”, at [170] | Held. Decided the second issue |
| Does the defendant’s earlier conduct bear on construction? | The plaintiff’s sixth submission, at [14] and [123] | No. The objection was upheld and the evidence excluded, at [125] | The one point the successful party lost |
| Would regs 220 and 221 exclude terminal illness claims at common law? | Reached expressly as an alternative, at [181] | At [181], they “should be construed as excluding terminal illness claims from the operation of the 2025 Regulation” | Alternative holding, independently sufficient of the transitional-provisions ground |
Why section 318A did not bite
The construction turns on a distinction between a division applying to a claimant and a division’s operative provisions applying to the facts. Division 1 plainly covered Mr Greenall: s 310(b) picks up a worker who has a terminal condition, and s 240(3) directs that Division 1 applies to costs in that claimant’s proceeding. But s 311 orders nothing itself. In the terms set out at [36], it tells the court it “must apply the principles set out in sections 312 to 314”, and each of those has its own precondition, a written final offer that was not accepted. None had been made. At [42] his Honour concluded that “the operative part of Division 1 did not apply and s 318A of the WCRA is not applicable”.
Court of Appeal authority pointed the same way. In Anderson v Pickles Auctions Pty Ltd [2023] QCA 205 the Court held the UCPR had not been displaced expressly or by necessary implication by Chapter 5 Part 12 Division 1. Smith J considered Anderson “materially indistinguishable” at [48], and at [49] said “I consider Anderson binds this court”. The defendant had conceded that if the court followed Anderson it should lose the point. Bilson v Vatsonic Communications Pty Ltd (No 2) [2024] QCA 220 was read the same way at [50] and [51].
The defendant’s principal authority was Sheridan v Warrina Community Co-operative Ltd [2004] QCA 308, on the predecessor provision. That failed on the drafting. Section 325 of the WorkCover Queensland Act 1996 (Qld), set out at [111], said in terms that “No order about costs, other than an order allowed under this section, is to be made”. Section 318A says nothing of the kind: it works by reference back to whether a division applies. At [113] his Honour held that “unlike s 325, s 318A is ambiguous and not clear in its terms”. The conclusion at [108] is a presumption against abrogation: s 318A “does not clearly and unmistakably remove a plaintiff’s right to costs where ss 312 to 314 of the WCRA do not apply”.
Two limits are worth noting. His Honour did not decide whether a right to costs is a common law right, saying at [107] only that “It might be true that the right to costs is not a common law right” while finding such a right existed in a terminal illness action before s 318A was inserted. And on whether the Act is remedial legislation to be construed beneficially, he preferred the High Court in Bird v The Commonwealth [1988] HCA 23 to Kelly v WorkCover (Qld) [2002] 1 Qd R 496, adding at [106] “Indeed, I am bound by the High Court decision”. The catchwords record Kelly as not followed; the reasons are narrower, and confined to that single question.
Counsel’s fees, and why 1 September 2025 matters
The second issue has the wider practical reach. Regulation 195(3) of the 2025 Regulation, set out at [138], provides that “the costs do not include counsel’s fees”, and reg 196(4) that “Counsel’s fees are not allowed under this section or under the Uniform Civil Procedure Rules 1999, chapter 17A”. As his Honour recorded at [128] and [169], the Explanatory Notes state the change was made to overturn Anderson v Pickles Auctions.
The defendant argued a costs power is procedural, so the change operated retrospectively. That failed. At [160] and [161] his Honour found the plaintiff had “a right [or at the least an entitlement]” to seek counsel’s costs which, though contingent on success, was accrued, because steps had been taken towards exercising it by suing: “An entitlement, even if inchoate or contingent, suffices.” Applying Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 and Chang v Laidley Shire Council [2007] HCA 37, he found at [152] that injustice would be caused, which told against retrospectivity, the proceeding having been commenced in 2021 with interlocutory and reserved costs orders made along the way.
The transitional provisions supplied the rest, and they contain a gap. Regulation 220(1) makes reg 195 apply only where the s 275 notice of claim is given after commencement, and reg 221 preserves the 2014 position for a “current claim”, defined by reference to a s 275 notice given before commencement. Both assume such a notice exists. A worker with a terminal condition is exempt from giving one by s 238(2)(d). At [171] his Honour said “It may be seen there is a significant gap in the drafting of the Regulation”, and at [174] that both provisions “have been drafted based on a failure to appreciate that in terminal illness claims there is no requirement to give a notice of claim”. Read literally they would leave a claimant with a lesser injury holding the transitional protection while a terminally ill claimant lost it.
The conclusion at [179] and [180] is that regs 195 and 196 do not apply retrospectively, that regs 136 and 137 of the 2014 Regulation continue to apply to existing claims, and that the expiry of the 2014 Regulation was a repeal within s 20 of the Acts Interpretation Act 1954 (Qld), so accrued rights survive it. Sykes v Queensland Gas Company [2009] QCA 163 and Digby v Compass Institute Inc (No 2) [2015] QSC 361 were confined to their facts.
What it changes in practice
For any Division 1 claim in which no written final offer was exchanged, the general costs powers in s 15 of the Civil Proceedings Act and r 681 remain available on this reasoning, and the ordinary rule that costs follow the event applies. That covers every claimant with a terminal condition who takes up the s 238 concession, which is the point made at [66]: requiring such a worker to follow the pre-trial processes before recovering any costs would be contrary to the scheme.
On counsel’s fees the practical marker is the commencement date. For a claim already on foot on 1 September 2025, this decision holds the 2014 scale continues to govern. So far as reg 221 is concerned that reasoning is not confined to terminal illness claims, though the terminal illness gap is what drove it. The plaintiff was also awarded indemnity costs on the s 318A issue, consistent with WorkCover Queensland v Yang (No 2) [2023] QCA 38, at [185], and standard costs on the Regulation issue.
Published 4 September 2026.
What remains unsettled
This is a decision of a single judge at first instance, closely reasoned from text, structure, legislative history and the Explanatory Notes, but open to reconsideration if the questions reach the Court of Appeal. On the second issue the defendant’s construction of reg 221 was not fanciful, and the answer depended on treating a contingent entitlement as accrued.
Two questions are expressly left open. Whether a right to costs is a common law right was not decided, at [107], and the entitlement was not labelled procedural or substantive, his Honour asking instead what Parliament intended, at [148]. The between-the-offers case is not one of them. Anderson answers it and binds, at [47](d) and [49]. Nor is the construction at [181] obiter. It is an alternative holding, independently sufficient. The drafting gap is a matter for the drafter rather than the courts, and it will keep arising until it is fixed. The reasons are on AustLII, and s 318A is in the current reprint of the Act.
Related reading
- WorkCover and the common law: the 20 per cent election explained
- WorkCover Queensland v CRG Harvesting: worker or director?
- Legal costs in a Queensland injury matter, explained
- Contact Fraser Lawyers
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