Coastwide Steel and Metal Work Pty Limited v Jason James Douglas - [2008] NSWCA 330

NEW SOUTH WALES COURT OF APPEAL

CITATION:
COASTWIDE STEEL & METAL WORK PTY LIMITED v Jason James DOUGLAS [2008] NSWCA 330

FILE NUMBER(S):
40468/2007

HEARING DATE(S):
19 November 2008

EX TEMPORE DATE:
19 November 2008

PARTIES:
Coastwide Steel & Metal Work Pty Limited
Jason James Douglas

JUDGMENT OF:
Allsop P Ipp JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC3336/04

LOWER COURT JUDICIAL OFFICER:
Boulton ADCJ

LOWER COURT DATE OF DECISION:
5 June 2007

COUNSEL:
J Jobson
R Goodridge

SOLICITORS:
McCulloch & Buggy
Firths - The Compensation Lawyers

CATCHWORDS:
APPEAL – re-opening of appeal – setting aside of order as to costs – new issue not raised at trial – raising of points previously abandoned – finality in litigation – no explanation of legitimacy of change of course – prejudice – respondent should not be required to assess how conduct of appeal may have been different

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)

CASES CITED:
Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; [2001] 117 FCR 424

TEXTS CITED:

DECISION:
1. In addition to the orders of the Court made on 5 August 2008 and in lieu of the orders of the District Court made on 29 June 2007, other than as to costs and with effect from 29 June 2007:
(a) order that there be judgment for the plaintiff (respondent to the appeal) against the defendant (appellant to the appeal) in the sum of $162,813.86;
(b) order that interest after judgment payable under the Civil Procedure Act 2005, s 101, be paid, calculated on the difference from time to time between the said judgment sum of $162,813.86 and amounts of workers compensation paid after 29 June 2007 as a condition of a stay pending the appeal noting that for the avoidance of doubt any such calculations would be principally by reference to the exchange of letters between the solicitors dated 18 September 2008;
2. Notice of motion dated and filed 8 August 2008 be dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40468/07
ALLSOP P
IPP JA
BASTEN JA
19 November 2008

COASTWIDE STEEL & METAL WORK PTY LIMITED v Jason James DOUGLAS

Judgment

ALLSOP P: This is a notice of motion dated and filed 8 August 2008 in which the appellant seeks various orders which are in effect a re-opening of the appeal in relation to setting aside orders for costs made by the District Court.
The history of this matter up to 1 September 2008 is conveniently set out in the reasons of Basten JA on that date when his Honour was sitting as the referrals judge when the motion came before him. I will only repeat matters to the extent they are necessary for a coherent understanding of these reasons.
After the principal judgment was delivered by the Court on 5 August 2008 (having been heard on 14 July 2008), the parties set about undertaking the task of resolving the matters left outstanding by order 3 made on that day, which was the resolution of the precise terms of the final orders bearing in mind the proper operation of s 151A of the Workers Compensation Act 1987 (NSW). Subject to the question of re-opening the question of costs in the District Court to which I will come, the parties are agreed on the form of the orders that should be made finally. They agree that there should be judgment sum in lieu of the District Court order of $162,813.86 with effect from 29 June 2007. The reaching of this figure and other financial matters that are in agreement can be understood by the solicitors’ letters of McCulloch & Buggy and Firths both of 18 September 2008.
One particular complication that led to the request to the Court was the fact that there have been payments of workers compensation since June 2007 as the price of a stay of the judgment, and the parties, as I have said, are now in agreement as to the amount and consequences and no independent judgment sum needs to be ordered to incorporate the operation of s 101 of the Supreme Court Act 1970 (NSW) other than one which in terms recognises the need to calculate the interest under s 101 on sums from time to time outstanding, which takes into account the payments of workers compensation which have been paid since the judgment date in the District Court. That is not the end of the matter, of course, because there is the motion which is in effect to re-open the appeal and to attack the order for costs made in the District Court. That is the matter that came before Basten JA on 1 September as the referrals judge and he referred it to this Court as the court that heard the appeal.
The orders made on 5 August 2008 after argument on 14 July 2008 included order 2 which, after the appeal had been allowed, set aside the orders of the District Court made on 29 June 2007, other than as to costs. Order 2 was in the form it was because of the conduct of the appeal and the statement of counsel at the appeal, see the reasons of Basten JA on 1 September at [3] to [7] in particular. There is no need to incorporate those reasons into these reasons but those paragraphs explain how order 2 came to be in that form. Three days later, and therefore in time under Order 36 Rule 16, the appellant filed the notice of motion which is before the Court today. That sought orders that the Court “apply its findings to the costs order made in the District Court” and “set aside the costs assessment … dated 27 May 2008”. The appellant also sought a stay on the payment of the balance of the judgment pending a refund of the costs returnable by the respondent.
Evidence was filed in the motion: two affidavits of Mr Siebold in August 2008 for the appellant and an affidavit of Mr Firth later in August for the respondent were read and a statement of Mr Jobson with certain parts not pressed was tendered. None of the material was the subject of cross-examination; no application to cross-examine was made. Detailed submissions have been filed and I do not propose to lengthen this afternoon by recounting the terms of those submissions.
In my view, no re-opening should be allowed. The appeal was conducted on the basis that the submissions put by the appellant did not address the question of costs in the District Court. It was a matter which naturally arose, should the appellant be correct in its primary claim which was successful, that AsplundhTree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471 applied.
The respondent says through Mr Firth’s affidavit that decisions in the appeal were made on the basis of how the appeal was being conducted. In Branir Pty Ltd v Owston Nominees(No 2) Pty Ltd [2001] FCA 1833; [2001] 117 FCR 424 at 439 [38] there is set out otherwise uncontroversial law in relation as to when an appeal court will not entertain a new issue not raised at the trial. Those principles are cognate here. In this respect, in particular in the light of Mr Firth’s affidavit, and I paraphrase from Branir, the respondent should not be placed under the difficulty when a new point is raised of reaching back in time to assess, necessarily hypothetically, how the conduct of the appeal would or may have been different. This difficulty should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at the appeal which may be privileged and which may be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant arguments should be respected and the potential unfairness on counsel conducting an appeal who will be expected to assist in this regard should not be underestimated.
Points have now been taken that were not taken on appeal. Finality in litigation is important. The appellant has dealt with the appeal in a certain way. The respondent is an individual who is entitled to think after the judgment that he had lost but lost only to a certain extent. Parties do not have an unfettered right to chop and change their arguments. It would not be fair in all the circumstances on the respondent, in particular in the light of Mr Firth’s affidavit, for these points to now be allowed to be raised in this Court in a way which is contrary to their, in effect, abandonment previously. People are entitled to approach litigation in superior courts on the basis that when a case is fully argued and won or lost that is the end of it without having to be vexed and taxed by the other party changing its mind before final orders are entered.
There may of course in certain circumstances be legitimate reasons why a change of course is enunciated. No real explanation of any legitimacy, in my respectful view, has been put forward here. It would be quite wrong, in my view, to allow this appeal to be re-opened and the respondent to be vexed with this further argument.
The orders that I would make are as follows:
(1)In addition to the orders of the Court made on 5 August 2008:
(a) in lieu of the orders of the District Court made on 29 June 2007, other than as to costs and with effect from 29 June 2007, order that there be judgment for the plaintiff (respondent to the appeal) against the defendant (appellant to the appeal) in the sum of $162,813.86;
(b) order that interest after judgment payable under the Civil Procedure Act 2005, s 101, be paid, calculated on the difference from time to time between the said judgment sum of $162,813.86 and amounts of workers compensation paid after 29 June 2007 as a condition of a stay pending the appeal noting that for the avoidance of doubt any such calculations would be principally by reference to the exchange of letters between the solicitors dated 18 September 2008;
(2)the notice of motion dated and filed 8 August 2008 be dismissed with costs.
IPP JA: I agree.

BASTEN JA: I agree that this is in substance an application to re-open the hearing of the appeal. No final orders were made, for reasons unrelated to the question of costs ordered at the trial, which is the matter now sought to be re-agitated. If the matter had not proceeded on an agreed basis it might have been necessary to consider whether the evidence tendered by the parties as to the steps taken at a mediation, the subjective understanding at various points of their legal representatives and the advice given to clients, should have been admitted.
A motion to re-open a hearing to raise an issue not agitated in written or oral submissions at the hearing of the appeal should not lead to one party being placed in a position where it has to put on evidence as to matters otherwise the subject of legal professional privilege in order to establish a basis for resisting the motion. If, in accordance with established principles to which the President has referred, it might be inferred that the respondent to the motion would be put at some risk of prejudice, that should be accepted as a ground in itself for not permitting the re-opening.
I agree with the orders proposed by the President.

ALLSOP P: The orders of the court are as I have proposed.

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LAST UPDATED:
17 December 2008