Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd (No 2)

[2018] NSWSC 205

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd (No 2) [2018] NSWSC 205

Hearing dates:

3 May 2017

Date of orders:

03 May 2017

Decision date:

28 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

2009/337219
In accordance and associated with the orders made by Rothman J on 29 March 2017:

 

(1) Judgment for the plaintiff against the defendant in the amount of $2,632,390.93 including interest pursuant to s 18 of the Civil Liability Act 2002.
(2)   The judgment amount is calculated in accordance with the Schedule of Damages and Interest Calculation (attached/uploaded).
(3)   Judgment for the cross defendant against the defendant/cross claimant on the amended first cross claim dated 27 May 2011.
(4)   Cross defendant’s costs to be paid by the defendant/cross claimant as agreed or assessed.

 

2011/70381
In accordance and associated with the orders made by Rothman J on 29 March 2017:

 (1)   Judgment for the plaintiff against the first defendant in the sum of $661,633.39 recovery amount.
(2)   Plaintiff’s costs to be paid by the first defendant as agreed or assessed.
(3)   Interest until 18/04/17 of $255,961.34.
(4)   Interest from 18/04/17 to date (and continuing at $108.70 per day) of $1,630.50.
(5)   Total judgment as at 3 May 2017 of $919,225.23.
(6)   Judgment for the second defendant, Soilmec Spa, against the plaintiff.
(7)   Plaintiff, The Workers Compensation Nominal Insurer, shall pay the second defendant’s costs of and incidental to the proceedings, as agreed or assessed.

Catchwords:

COURTS & JUDGES – error is reasons for judgment - wrong calculation of life expectancy – life expectancy agreed between parties – judgment intended to reflect agreement – Schedule misread – misapprehension of fact – correction made;
COSTS – agreement between two defendants that one case be conducted – one defendant successful which did not separately participate – costs follow the event, even if on taxation costs may be nil.

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69(4)

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Category:

Consequential orders (other than Costs)

Parties:

2009/337219:
Riste Bosevski (Plaintiff)
Avopiling Pty Ltd (Defendant/Cross-Claimant)
Professional Contracting (NSW) Pty Ltd (Cross-Defendant)

  2011/70381:
The Workers Compensation Nominal Insurer (Plaintiff)
Avopiling Pty Ltd (First Defendant)
Soilmec SpA (Second Defendant)

Representation:

Counsel:
2009/337219:
B Toomey QC/A McSpedden (Plaintiff)
M Windsor SC/R Perla (Defendant/Cross-Claimant)
No appearance (Cross-Defendant)

 

2011/70381:
D O’Dowd (Plaintiff)
M Windsor SC/R Perla (First Defendant)
G Roche (Second Defendant)

 

Solicitors:
2009/337219:
Villari Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant/Cross-Claimant)
No appearance (Cross-Defendant)

  2011/70381:
HWL Ebsworth Lawyers (Plaintiff)
Moray & Agnew Lawyers (First Defendant)
Moray & Agnew Lawyers (Second Defendant)

File Number(s):

2009/337219; 2011/70381

Judgment

1. HIS HONOUR: On 3 May 2017 the Court issued and entered final orders in these proceedings. At the time that those orders were issued, they were calculated on the basis of a life expectancy of 85.6 years from the date of the original calculation by the plaintiff and not on the basis of 76.6 years, as stated in the reasons for judgment issued 29 March 2017: (see Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893) (hereinafter, “the earlier judgment”) at [358]. A second issue concerns costs in the Nominal Insurer’s Recovery proceedings (2011/70381), hereinafter “the Recovery Proceedings”.

2. The alteration of the calculated life expectancy between the orders of 3 May 2017 and the earlier judgment occurred as a result of an application on behalf of the plaintiff to correct the record, as a result of what was submitted to be an arithmetic miscalculation in the earlier judgment.

3. As was made clear during the course of the proceedings on 3 May 2017, the figure at [358] of the earlier judgment was a misreading of the Schedule of Damages provided by the plaintiff and to which calculations (in that respect) the defendants had agreed. It seems a line was skipped in putting a figure into a calculator and the item utilised was the factor for age at the time of accident (45 years) instead of age at the date of calculation (54.1 years) on the line below.

4. In other words, the parties were in agreement that, at the date that the Schedule of Damages was calculated, the life expectancy was the sum of the age of the plaintiff at that date (54.1 years) together with the projected life expectancy of a further 31.5 years, providing a total of 85.6 years as at the calculation date.

5. On 3 May 2017, the Court made the corrections and reserved reasons. The defendant did not dispute that the life expectancy is as was suggested by the plaintiff and as used as the ultimate calculation in the final orders issued on 3 May 2017, but nonetheless opposed a correction being effected.

6. At the hearing on 3 May 2017, in the course of discussion, the Court referred the parties to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6.

7. At the time that the correction was made the final orders had not issued and, obviously, had not been entered. Thus, alteration of the reasons for judgment is not governed by the rules associated with an alteration to an order that has already been entered, but is governed by the constraints that relate to the alteration of reasons for judgment after publication.

8. The reasons for judgment of a court are not the judgment of the court. The foregoing is trite.

9. The judgment of a court is the order entered, which forms part of the record of the proceedings and, in accordance with the principles of common law, and disregarding for that purpose any statutory expansion, forms the basis for certain prerogative writs: see Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.

10. The reasons for judgment of a court do not, as a matter of common law, form part of the record of the Court.

11. In New South Wales, pursuant to the terms of s 69(4) of the Supreme Court Act 1970 (NSW), reasons for judgment now form part of the record of a court for the purpose of the grant of orders in the nature of prerogative relief. There may be some doubt as to whether s 69(4) of the Supreme Court Act applies to reasons of the Supreme Court, as it is not ordinarily susceptible to prerogative relief (with the possible exception of the Constitutional writs if applicable, or based on constitutional invalidity). However, it is unnecessary to deal with that issue.

12. As a consequence of the foregoing, there are two quite distinct periods of time that must be considered when dealing with the correction of judgments or reasons for judgment.

13. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are limited. Likewise, the capacity to alter the reasons for judgment to overcome error is constrained.

14. The High Court in Autodesk Inc v Dyason (No 2), supra, dealt with the amendment of orders or judgments prior to their entry. The reasons for judgment would be subject to amendment for reasons which are at least as extensive as the reasons one would be able to recall a judgment pronounced, but not entered.

15. In Autodesk Inc v Dyason (No 2), supra, Mason CJ, after citing a number of examples and previous judgments, made clear that the examples and the public interest in the finality of litigation do not preclude the exceptional step of reviewing or rehearing an issue when a court has “good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law”: Autodesk Inc v Dyason (No 2) at 302. The reasons for judgment of Mason CJ (at 303) emphasise that the jurisdiction should not be used for the purpose of re-agitating arguments already considered, but only when the court has apparently proceeded “according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.”

16. After judgment has been entered there are three bases upon which the judgment may be reopened and amended:

1. The “slip” rule;

2. the power to amend the rule where the intention of the court has not manifested in the judgment; and

3. the capacity to allow the opening of orders made in Chambers.

17. The High Court, in Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49, expressed the view that apart from statutory provisions to the contrary, once an order had been made disposing of a proceeding, and that order has been perfected by being drawn up as a record of the court, the proceeding is at an end and is, as a consequence, beyond recall. To allow it to be recalled would be inconsistent with the interests of justice and the finality of litigation: per Barwick CJ at 530 and Menzies J at 531-532.

18. More recently, in DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) referred to superior courts of record, as this Court is, as having the full power to rehear or review a case until judgment was drawn up, passed and entered and otherwise expanded on the three bases upon which a judgment may be recalled and which are described above: DJL, supra, at [34] and [35].

19. As I understand the rather bold submission of the defendant, the Court possesses no power to alter its reasons for judgment, even before entry. Such a submission does not withstand scrutiny. The power to alter reasons must be at least as wide as the power to alter the judgment. In this case, the judgment had not issued and so it is the former which is in question.

20. The life expectancy of the plaintiff, as earlier stated, was a matter of agreement between the parties. That agreement was that, at the date of calculation, the life expectancy was 85.6 years. The calculation in the final orders was made on a different basis, in any event, because of the delay between the date on which the plaintiff’s Schedule of Damages was provided and the date on which final orders were made.

21. As stated, the error or mistake that is found at [358] of the earlier judgment seems to have occurred by skipping a line when reading the plaintiff’s Schedule of Damages. As such, it could probably be corrected even under the “slip” rule.

22. Nevertheless, the clear intention of the Court at the time that the earlier judgment issued was that the life expectancy was to reflect the agreement between the parties. Thus, the intention of the Court, without amendment, cannot be said to have been manifested in the judgment. Accordingly, the correction can be made to the reasons for judgment. It is also an obvious misapprehension of the facts and, therefore, amendment is permitted on a number of bases.

23. For those reasons, the Court issued orders on 3 May 2017 reflecting a life expectancy which, at the date on which the plaintiff’s Schedule of Damages was calculated, would have been 85.6 years.

Costs in the Recovery Proceedings

24. The other issue on which reasons were reserved by the Court was the issue of costs in proceedings 2011/70381, being the recovery proceedings by the Workers Compensation Nominal Insurer against Avopiling and Soilmec on 3 May 2017. An application was made by Counsel appearing for the Workers Compensation Nominal Insurer, that it not be required to pay costs of the second defendant in those proceedings after the date upon which Avopiling reached agreement with Soilmec. After that point in time, Avopiling conducted the case on behalf of Soilmec.

25. Essentially, Counsel for the Nominal Insurer submitted that the costs of Soilmec would be nil, after the date upon which the case of Avopiling and Soilmec were run as one. On 3 May, I refused that application and made orders that the plaintiff, Workers Compensation Nominal Insurer, pay the second defendant’s (Soilmec’s) costs in the Recovery Proceedings.

26. Ultimately, on taxation, as I made clear, the costs of Soilmec may be nil. The first defendant in those proceedings, namely Avopiling, are required to pay the Nominal Insurer’s costs of those proceedings and Avopiling were the major, if not the only, contradictor in those proceedings.

27. Nevertheless, the ordinary rule that costs follow the event ought to apply. The issues raised by the Nominal Insurer are issues that go to taxation and not the orders that are made.

28. It may well be, as earlier stated, that Soilmec’s costs after the date upon which the case was run by Avopiling, are nil. It is also the case that there may have been additional costs. For example, a separate conference may have been required in relation to particular issues that affected Soilmec and not Avopiling. I doubt that. But, in my view, the issues that have been raised by the Nominal Insurer are issues that ought to be dealt with on taxation and the ordinary order for costs ought to be made.

29. Counsel appearing for the Nominal Insurer indicated to the Court that reasons were not necessary for the costs order. Nevertheless, the Court is required to give reasons and the foregoing are the reasons for the costs order made in relation to the Recovery proceedings.

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Decision last updated: 28 February 2018