Craig v Toll Pty Limited t/as Toll Transport

[2021] NSWSC 651

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Craig v Toll Pty Limited t/as Toll Transport [2021] NSWSC 651

Hearing dates:

3 June 2021

Date of orders:

3 June 2021

Decision date:

03 June 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

Direct the defendant to file and serve draft Short Minutes of Order to give effect to the judgment within 14 days hereof and that any such draft be sent to my Associate by email

Catchwords:

PERSONAL INJURY – judgments – set off against costs orders – interest on costs orders -when interest runs from – workers compensation entitlements – whether written agreement entered into under s 66A of Worker Compensation Act 1987 – no agreement found – plaintiff declined opportunity to enter into agreement or apply for compensation – relief granted

Legislation Cited:

Civil Liability Act 2002

Civil Procedure Act2005

Motor Accidents Compensation Act 1989

Workers Compensation Act1987

Workplace Injury and Management Workers Compensation Act 1998

Cases Cited:

Barnett v Country Rugby League of NSW Inc [2010] NSWWCCPD 73

Craig v Toll Transport [2014] NSWSC 868

Donellan v Watson (1990) 21 NSWLR 355

Equuscorp Pty Limited v Glengallan Investments (2004) 218 CLR 47

Category:

Principal judgment

Parties:

Anthony Mark Craig (Plaintiff/Respondent)
Toll Pty Limited t/as Toll Transport (Defendant/Applicant)

Representation:

Counsel:
M Neil QC; P Stockley (Applicant)
M Fraser, as amicus (Respondent)
Plaintiff in person

Solicitors:
Leigh Virtue & Associates (Applicant)
Maxwell Berghouse & Ives (Respondent)

File Number(s):

2009/297914 & 2009/297915

EX TEMPORE Judgment

(Revised from transcript)

1. Before the Court are two notices of motion filed 10 December 2020 on behalf of Toll Transport Pty Ltd (“Toll”). The notices of motion seek orders designed to finalise proceedings for damages arising out of personal injuries suffered by the plaintiff, Mr Anthony Craig, almost two decades ago. It has become clear the resolution has been complicated by a number of matters, including Mr Craig's disaffection with the outcome of the final hearing that was published in 2014.

2. Toll was represented at the hearing of these notices of motion by senior and junior counsel, Mr Neil QC and Mr Stockley. Mr Craig's position is more opaque. His solicitor, Mr Ives, remains on the record and was served with the notices of motion and supporting material. Mr Ives has sworn an affidavit in which he discloses advising Mr Craig of these motions, and for his troubles, receiving an “abusive tirade”. It is clear that Mr Ives is not currently receiving proper instructions. Nevertheless, Mr Ives instructed counsel, Ms Fraser, who filed submissions in the name of Mr Ives and appeared at the hearing, amicus. In these circumstances the status of those submissions is uncertain. However, given the difficult considerations involved, I received them and they were of great assistance.

3. Mr Craig also appeared himself at the hearing of the notices of motion. I endeavoured to advise him of the relevant points he needed to address as they arose, bearing in mind that they are not straightforward. Generally, Mr Craig repeated, with passion, his extreme disappointment and disgruntlement with the various judgments of the Court and the conduct of all involved.

4. As I will explain, in relation to one particular matter which affects whether he is entitled to receive a sum of $75,000, I sought to give Mr Craig every opportunity to either obtain that sum or, if he wished, to indicate that he proposed to make an application to the Personal Injury Commission for compensation under the Workers Compensation Act1987. His response revealed that his disgruntlement is so great that he would neither accept that sum or contemplate that course.

Background.

5. Given the various issues that have arisen, it is necessary to set out the relevant events in chronological order.

6. In November 2005, Mr Craig commenced proceedings in the District Court against Toll and Allianz Australia Insurance Limited (Allianz), concerning an incident that occurred on 19 September 2002 at his workplace with Toll, being proceedings 2009/297914 (“Proceedings 914”). Allianz was the compulsory third party insurer of a vehicle that was involved in the incident. As I understand it, the proceedings against Toll were governed by the Civil Liability Act 2002 (NSW).

7. In September 2007, Mr Craig commenced further proceedings in the District Court against Toll concerning an incident said to have occurred at his workplace on 4 February 2002, being proceedings 2009/297915 (“Proceedings 915”). Those proceedings were governed by the Workers Compensation Act1987 (NSW) (the “1987 Act”) and the Workplace Injury and Management Workers Compensation Act 1998 (NSW) (the “1998 Act”).

8. In October 2009, both matters were transferred into this Court. They were heard by RS Hulme AJ in November 2013. Principal judgment was delivered on 30 June 2014 (Craig v Toll Transport [2014] NSWSC 868). In summary, Mr Craig succeeded against Toll in both matters but obtained findings on damages which were far below what he believed reflected his true entitlement. In Proceedings 914, both the plaintiff and Toll failed against Allianz. Specifically, they did not establish that what occurred was a "motor accident" within the meaning of the Motor Accidents Compensation Act 1989 (NSW).

9. On 25 July 2014, RS Hulme AJ made orders as follows.

10. In Proceedings 914, his Honour ordered:

1.   Judgment for the plaintiff against the first defendant [Toll] in the sum of $67,641; as between those parties there will be no order for costs.

2.   Judgment for Allianz Australia Insurance Limited against the plaintiff.

3.   Order the plaintiff to pay the costs of Allianz Australia Insurance Limited.

4.   Order Toll Transport Pty Limited to pay the costs of Allianz Australia Insurance Limited.

11. In Proceedings 915, his Honour ordered:

1.   Judgment for the plaintiff against the defendant [Toll] in the sum of $75,899.

2.   The plaintiff pay the defendant's costs.

12. In addition, at some point in 2005, Mr Craig made a claim for workers compensation payments under the 1987 Act and the 1988 Act. In 2006, he was the subject of a whole person impairment assessment of 29% which, on its face, meant that he was entitled to receive compensation under s 66 of the 1987 Act. As I understand it, however, those proceedings were discontinued. Ultimately, his claims for compensation under s 66 and s 67 of the 1987 Act were not resolved by the time that RS Hulme AJ made orders in July 2014.

13. To explain the significance of that and the efforts made by the lawyers for both parties subsequently to address it, it is necessary to note the effect of certain statutory provisions. At all relevant times until around June 2012, s 66 and s 67 of the 1987 Act conferred a form of statutory entitlement to lump sum payments for permanent impairment and pain and suffering on injured workers. However, s 151A(1) of the 1987 Act had the effect that, if a person such as Mr Craig recovered damages from his employer, then his entitlement to statutory compensation would cease. At least to date it has been held that the “recovery” means the receipt of moneys (see Barnett v Country Rugby League of NSW Inc [2010] NSWWCCPD 73 at [59] to [60]).

14. Further, at all material times s 280B(1) of the 1998 Act provided:

“An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.”

15. In addition to that provision, it should also be noted that s 234 of the 1998 Act provides that that Act and the 1987 Act apply despite any contract to the contrary. Further, s 235 of the 1998 Act provides that compensation under those two Acts cannot be assigned, nor can it be the subject of set-off.

16. The effect of these provisions appears to be that Mr Craig could not recover, that is receive, damages in Proceedings 915 unless he was first paid any entitlement to compensation under s 66 and possibly s 67 of the 1987 Act he had in respect of the injury the subject of those proceedings. Further, subject to any statutory authority to the contrary, the parties could not agree between themselves as to what those entitlements were. Statutory authority to the contrary was conferred by s 66A of the 1987 Act, which, as applicable to at least such claim as was made by Mr Craig prior to June 2012, relevantly provided as follows:

66A Agreements for compensation

(1)   In this section, complying agreement means a written agreement:

(a)   under which a worker who has received an injury, and an employer or insurer, agree as to either or both of the following:

(i)   the degree of permanent impairment that has resulted from the injury,

(ii)   the amount of pain and suffering compensation to which the worker is entitled in respect of the injury, and

(b)   in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice before entering into the agreement.

(2)   If a worker enters into a complying agreement in relation to an injury:

(a)   the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed, and

(b)   the pain and suffering compensation to which the worker is entitled in respect of the injury is the amount so agreed.

(3)   The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:

(a)   the agreed degree of permanent impairment or the amount of pain and suffering compensation is manifestly too low, or

(b)   the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or

(c)   since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.

(4)   Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.

(5)   Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.

(6)   Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.

17. Following the delivery of judgment by RS Hulme AJ and the making of orders, the lawyers for the parties attempted to come to an agreement that conformed with s 66A to reflect Mr Craig's entitlements under s 66 and s 67 of the 1987 Act. The figures fixed upon by the lawyers were $50,000 for compensation under s 66, which reflected a whole person impairment assessment of 29%, and $25,000 for compensation under s 67.

18. On 7 November 2014, the solicitor for Toll sent to Mr Ives a draft agreement entitled, "Complying agreement under S 66A of the Workers Compensation Act 1987". The form of the proposed agreement referred to the date of injury being 4 February 2002 and specified that "this agreement relates to the claim made for the payment of lump sum compensation pursuant to s 66 and s 67 of the Act made in respect of the injuries referred to on 4 February 2002". The document purported to record the agreement of the parties as to the amount of compensation to which I have referred to earlier. It further stated that "the date of this agreement is the date on which it is signed by and on behalf of the applicant".

19. Under the heading "Independent legal advice", the proposed agreement stated:

“The Applicant and the Solicitor for the Applicant confirm that:

(a)   this agreement has been read and explained to the applicant by the solicitor for the applicant;

(b)   the applicant has obtained independent legal advice in respect of the agreement; and

(c)   The Applicant understands and agrees to all the terms of this agreement.”

20. The completion clause for the proposed agreement had a designated place for signing by the applicant as well as by the solicitor for the applicant and by the solicitor for the respondent.

21. Some time shortly thereafter, the proposed agreement was returned to the solicitors for Toll bearing the signature of Mr Ives above the description "solicitor for the applicant". It was also signed by the solicitor for Toll. However, the space for the signature of Mr Craig was left blank.

22. On 13 November 2014, Toll's solicitor replied to Mr Ives in a letter stating, inter alia:

“We note that, as discussed, your client has not signed the complying agreement. In those circumstances, our client is not in a position to forward your client a cheque for the settlement moneys.”

23. As I understand it, Toll perceived that the apparent absence of any concluded agreement meant that s 280B of the 1998 Act precluded it from paying to Mr Craig the damages in Proceedings 915, being the judgment sum of $75,899. Consequently, Toll applied to the Court to stay judgment in those proceedings.

24. Toll’s application for a stay came before RS Hulme AJ on 19 February 2015. Mr Craig appeared for himself. He expressed, as he did in this Court, his dissatisfaction with the judgment of his Honour and the state of the proceedings. In any event, on that day his Honour made the following orders in Proceedings 915, namely:

“The Court orders that:

1. Proceedings in the judgment be stayed until 28 days after the plaintiff executes a complying agreement pursuant to section 66A of the Workers Compensation Act 1987 or further order.

2.   Interest on the judgment in favour of the plaintiff dated 25 July 2014 from this time until further order be calculated at the rate of 5%.

3.   Decline to order the plaintiff to pay the defendant's costs of the application.”

25. Meanwhile, in Proceedings 914, Mr Craig had apparently not received his judgment sum and the costs were still to be assessed. Ultimately two costs certificates were issued in August 2017 in respect of Allianz's costs. On 1 November 2017, Toll paid the sum of $179,443.24 to Allianz on account of the entirety of its costs as assessed. On about 29 November 2017, Toll paid to Mr Craig the sum of $67,641 by way of electronic funds transfer. This was the judgment sum in Proceedings 914 but without any interest. Mr Craig returned that sum to Toll via a bank cheque for the same amount very shortly thereafter.

26. As noted, in Proceedings 915 RS Hulme AJ had ordered Mr Craig to pay Toll's costs of those proceedings. On 11 March 2019, a costs assessor assessed the amount of those costs as $34,347.05.

Toll’s Motion in Proceedings 914

27. By its notice of motion dated 10 December 2020, Toll seeks the following orders in Proceedings 914:

“1   That the Plaintiff contribute 50% to the payment of the costs of Allianz Australia Limited, the Second Defendant in the proceedings.

2   That 50% of the costs apportioned pursuant to Order 1 be quantified at $88,687.03 in accordance with the costs assessment certificate of Assessor PK Mansfield issued on 8 July, 2017 and the Certificate of Determination of Costs of Costs Assessment of Costs Assessor PK Mansfield issued on 20 July, 2017.

3   That Order 2 take effect from 25 July, 2014.

4   That the Judgment amount in Order 2 be set off against the Plaintiff’s Judgment against the First Defendant in the sum of $67,641.00 made by the Court on 25 July, 2014.

5   Judgment for the First Defendant against the Plaintiff in the sum of $21,046.03.

6   A declaration that the payment by electronic transfer on 29 November, 2017 by the Defendant to the Plaintiff constituted payment of the Judgment of the Court made 25 July, 2014.

7   That from 29 November, 2017 no interest accrued or was payable pursuant to s 101 of the CPA on the amount of $67,641.00.

8   In addition to the Judgment in Paragraph 5 above in the sum of $21,046.03 there be Judgment for the First Defendant against the Plaintiff for interest on the amount of costs paid by the First Defendant to Allianz from 25 October, 2017 to date and continuing, less interest on the Judgment in favour of the Plaintiff from 25 July, 2014 to 29 November, 2017.

9   The costs of this motion.”

28. One aspect of the orders that Toll seeks requires a contribution to it by Mr Craig of half the amount that it, that is Toll, paid to Allianz on account of costs. The orders of RS Hulme AJ on 25 July 2015 appear to create a joint and several liability on the part of Mr Craig and Toll to pay Allianz’s costs. From my reading of his Honour's judgment, I cannot discern any basis for differentiating between Toll and Mr Craig as to their respective contributions to the costs orders in favour of Allianz. Regardless of whether the orders have the effect of creating a joint and several liability, and without determining whether in these circumstances equity would confer a right of contribution on Toll against Mr Craig, it is sufficient to invoke the power of s 98 of the Civil Procedure Act2005 (NSW) which allows the Court to determine whose costs are to be paid and to whom.

29. In these circumstances, I consider it appropriate to order that Mr Craig, in effect, reimburse Toll for half of the costs that it has paid to Allianz and that, if necessary, declarations ancillary to any such order, or in lieu of such order, be made allowing for it to be done by way of set-off. Further, any calculation of interest on the respective balances owing to Toll or Mr Craig should be done on the basis that Toll expended funds on account of Allianz's costs not from 25 July 2014, as appears to be contemplated by proposed Order 3, but, instead, from the date of payment, namely, 1 November 2017.

30. The balance of the orders sought in the notice of motion appear to proceed on the assumption that Mr Craig either received his judgment sum on 29 November 2017 or reimbursed it. However, in the events that happened, given the money was paid out and then paid in, and that no stay was ordered, I consider the effect of those transactions to be neutral and any calculation of interest should reflect that interest would ordinarily accrue from the day of judgment, namely, 25 July 2014.

31. Toll prepared calculations that reflected the effect of these findings; namely, a calculation of interest on the judgment debt in Proceedings 914 in favour of Mr Craig from 25 July 2014 to 1 November 2017, as well as to 29 November 2017. While I consider the more appropriate date is 1 November 2017, Toll's ultimate position was that it would take that interest calculation to 29 November 2017. I will adopt those figures.

32. What follows is that the sum of the plaintiff's judgment, together with interest to 29 November 2017, yields a figure of $85,694.89; that 50% of the payment made to Allianz was $88,607.83; that the differential is $2,912.94 and interest on that amount to date is $734. The end result is that, as at today, in respect of Proceedings 914, the net amount owing to Toll by Mr Craig is the sum of $3,646.94.

33. To give effect to these findings, I will direct that Toll prepare draft orders in Proceedings 914 which will reflect the following:

34. First, that there is to an order under s 98 of the Civil Procedure Act 2005 that Mr Craig pay half of the costs in fact paid by Toll to Allianz.

35. Second, there will be a declaration to the effect that Toll is entitled to set-off that amount against the judgment amount owing by it to the plaintiff, including interest on that amount from 25 July 2014.

36. Third, there will be a declaration that the amount owing by Mr Craig to Toll as at today is the sum of $3,646.94 and an order that he pay that amount.

37. Fourth, that each party pay their own costs of the notices of motion filed by Toll on 10 December 2020.

38. Fifth, there will be an order that the notice of motion and the proceedings be otherwise dismissed.

Toll's Notice of Motion in Proceedings 915.

39. By its notice of motion filed on 10 December 2020 in Proceedings 915, Toll sought orders in those proceedings designed to allow the judgment amount ordered in favour of the plaintiff, Mr Craig, be set-off against the costs order that was made in its favour. However, given the issues that emerged with the plaintiff's workers compensation entitlements Toll sought, and was granted, leave to file in Court an amended notice of motion that sought relief as follows:

“1   That the Plaintiff pay the Defendant’s costs and disbursements in the sum of $34,347.05 in accordance with the Costs Assessment Certificate of Assessor Dulhunty dated 11 March, 2019.

2   That Order 1 take effect from 25 July, 2014.

3   That the Judgment for the Plaintiff dated 24 July, 2014 in the sum of $75,899.00 be set off against the Judgment in favour of the Defendant made pursuant to Order 1.

4   That the Defendant pay interest on the sum of $41,551.95 at the rate of 5% per annum from date of 25 July, 2014 to 3 June, 2021.

5   That the Defendant pay into Court the sum of $41,551.95 plus interest in the sum of $14,247.14 within fourteen (14) days.

6   A declaration that compliance with Order 5 will constitute a discharge of the orders of the Court made on 25 July, 2014.

7 A declaration that the agreement signed by the Plaintiff’s then solicitor and forwarded to the Defendant’s solicitor on 7 November, 2014 constitutes an agreement within the meaning of s 66A of the Workers Compensation Act 1987.

8 A direction that the Defendant pay into Court the sum of $75,000.00 in payment of the Plaintiff’s entitlement to lump sum compensation within the meaning of s 280B of the Workplace Injury Management and Workers Compensation Act 1998 within 14 days.

9   That the Registrar be directed to pay out from the sums paid into court pursuant to orders 5 & 8

a.   The sum of $109,753.06 to the Plaintiff, and

b.   The sum of $21,046.03 to Toll Transport Pty Limited, the First Defendant and Judgment Creditor in proceedings numbered 2009/00297914

10   The costs of this motion.”

40. A number of issues are bound up in the relief sought and it is appropriate to address them as follows.

41. First, implicit in these prayers for relief is that Toll can set-off the costs assessment in its favour against the judgment sum ordered in favour of Mr Craig. I agree that that is appropriate in respect of the judgment sum. However, if I was to conclude that Mr Craig had some entitlement to workers compensation payments under the 1987 Act, which I do not, then I do not consider that would be appropriate.

[Plaintiff interrupted]

42. Second, the notice of motion seeks to set-off the amount of costs assessed in the 2019 costs assessment against the judgment debt with effect from 25 July 2014. In effect, it seeks that interest effectively run on the costs from that date. I would not allow that if it appeared that the costs assessment itself included interest on costs. However, leaving aside whether the assessor had the power to do so, it does not appear that it did include interest. Ms Fraser made a number of submissions about the appropriate approach at common law in respect of interest on costs, although in this context it has been overtaken by the provisions of the Civil Procedure Act.

43. Given that what is being addressed is costs incurred by Toll during and prior to the hearing before RS Hulme AJ, it is appropriate to treat the costs assessment as crystallising the quantum of a liability that accrued in its favour against Mr Craig on and with effect from 25 July 2014. That means, in any "running account" assessment of the amounts owing between them, the net balance between the judgment sum of $75,899 and the amount of the assessed costs is to accrue interest on and from 25 July 2014.

44. Third, and perhaps most contentious, the relief sought includes a declaration that an agreement in conformity with s 66A of the 1987 Act was reached in November 2014. This relief is the antithesis of the contention that Toll put to RS Hulme AJ in February 2015, which assumed that no such agreement was effected to so that a stay of the proceedings pending such an agreement should be ordered. Nevertheless, on this application, Toll contended that there was in fact an agreement reached under s 66A of the 1987 Act in November 2014. Therefore, Toll submits that the stay should be set aside and that, in effect, this Court can, in determining the relevant respective rights of the parties, give effect to an agreement which provides for Mr Craig to have an entitlement to $75,000 compensation under ss 66 and 67 of the 1987 Act.

45. In support of that contention, Senior Counsel submitted that, even though Mr Craig did not sign the “complying agreement”, his solicitor had "both implied an ostensible authority to bind his client to a compromise", citing Donellan v Watson (1990) 21 NSWLR 355 at 342. Hence, it was submitted that Mr Ives' signature on the agreement was sufficient to bind Mr Craig, that a written agreement under s 66A was thereby reached and should now be given effect to in the manner contemplated by the balance of the proposed orders.

46. The difficulty with this contention is not any question over the scope of Mr Ives' authority but whether an agreement was in fact reached in the first place. Both the question of whether there is a contract and, if so, the meaning of its terms are assessed by reference to an objective assessment of the parties' communications and conduct and not by reference to their actual beliefs or intentions (see Equuscorp Pty Limited v Glengallan Investments (2004) 218 CLR 47 at [34]).

47. While I would prefer to find to the contrary, I cannot accept that, by the act of Mr Ives simply signing above his name in circumstances where there was no signature of Mr Craig, that meant that there was a meeting of minds between the parties sufficient to give rise to an agreement. It is clear from reading the proposed agreement that the only function served by the signature of Mr Ives was that he was giving his own confirmation in accordance with the clause headed "Independent legal advice". His execution, objectively considered, did not purport to be any execution of the agreement on behalf of the applicant.

48. A reading of the proposed agreement as a whole reveals that it was essential to there being a concluded agreement between the parties that the applicant himself sign the agreement. It is manifestly obvious why experienced solicitors would require that to occur. The end result is that I am not satisfied that any such agreement was reached.

49. What follows from that? From Toll's perspective, it is clearly concerned about any orders which might require it to pay money to Mr Craig in circumstances that might give to a risk of there being a contravention of s 280B(1) of the 1998 Act. Further, if such a payment was to be made, then whatever rights Mr Craig had under the 1987 Act and 1998 Act would be extinguished by s 151A(1) of the 1987 Act.

50. As at the present, however, and in the absence of any agreement under s 66A, it could not be said that, in terms of s 280B(1), that Mr Craig has any “entitlement” in respect of his injury to be paid permanent impairment compensation (or, to the extent it may be relevant, compensation under former s 67 of the 1987 Act). As I have stated, his proceedings seeking compensation were discontinued.

51. During the course of the morning, I attempted to raise this with Mr Craig with a view to him either now confirming his agreement to the receipt of $75,000 in accordance with what was proposed back in 2014 or him making a further application to the Personal Injury Commission to obtain compensation before there is any extinguishment under s 151A. I did my best to explain this to him repeatedly. It was clear from his responses that his disgruntlement with what has occurred to date has resulted in a proud defiance on his part to take any step that might be seen as acquiescing in any way with what he sees as a travesty of justice. In particular, he was dismissive of any suggestion that he should reach any agreement or accept anything like the sum of $75,000, even if that was only referable to his workers compensation entitlements under the 1987 or the 1998 Act. When I asked him if he sought to make an application under the Act, he was equally dismissive.

52. I am reluctant to proceed down the road of making orders which would bring his workers compensation entitlement to an end. Nevertheless, the position has been reached that these proceedings are now almost two decades old. It is almost seven years since the principal judgment, which was not appealed, was delivered. Mr Craig continues to have a solicitor on the record, who even today, without instructions, and having been subject to an abusive tirade, appears to have attempted to do his best to protect his client's position. Mr Craig’s attitude is generally one of contempt and defiance for any aspect of the proceedings.

53. In these circumstances, I can see no proper basis upon which I could take the unilateral step of granting Mr Craig an adjournment that he does not ask for so he can pursue some rights to compensation that he apparently does not want. Accordingly, with reluctance, the only way to complete this matter is to grant declaratory relief to the effect that he has no such entitlements as referred to in s 280B of the 1998 Act and that s 280B does not preclude the payment to, or the receipt by, him of damages in respect of his injuries in accordance with RS Hulme AJ’s orders.

54. Accordingly, I will direct Toll to bring in proposed orders that reflect the findings I have made in respect of proceedings 2009/297915 to the following effect:

1. An order in terms of Order 1 at page 10 of the court book;

2. a declaration that Toll may set-off the judgment sum in Proceedings 915 against the amount of its assessed costs with interest to run from 24 July 2014;

3. a declaration that the amount owing to Mr Craig as at today's date under that judgment is the net amount of $62,865.85;

4. a declaration that Mr Craig does not have any entitlement to permanent impairment compensation within the meaning of the 1987 Act (or compensation under s 67) in respect of the injury the subject of Proceedings 915;

5. a declaration that s 280B(1) of the 1998 Act does not prevent the payment by Toll, or the receipt by Mr Craig, of the net amount owing to him;

6. ancillary orders for the payment of those amounts into Court and out to the parties;

7. no order as to costs on the motion,

8. a declaration to the effect that a payment into Court is a discharge of Toll’s obligations under the judgment, and

9. orders for Toll’s motion and the proceedings to be otherwise dismissed.

   55. According, I direct that the defendant file and serve draft Short Minutes of Order to give effect to the judgment within 14 days hereof and that any such draft be sent to my Associate by email.

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Amendments

17 June 2021 - Paragraph 54(iv) amended to read "... in respect of the injury the subject of Proceedings 915"