Dyktynski v BHP

[2001] NSWCA 54

Reported Decision: (2001) 50 NSWLR 710
(2001) 21 NSWCCR 581

New South Wales

Court of Appeal

CITATION:	Dyktynski v BHP [2001] NSWCA 54
FILE NUMBER(S):	CA 40894/99
HEARING DATE(S):	14/02/01
JUDGMENT DATE:	14 February 2001
PARTIES :	Samuel Scott Dyktynski v BHP Titanium Minerals Pty Ltd
JUDGMENT OF:	Spigelman CJ at 15; Meagher JA at 2; Powell JA at 16

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	3969/96
LOWER COURT JUDICIAL OFFICER :	O'Toole CCJ

COUNSEL:	Appellant: McManamey Respondent: J Hislop QC & P Perry Appellant: McManamey Respondent: J Hislop QC & P Perry
SOLICITORS:	Appellant: Stacks The Law Firm Respondent: Sparke Helmore
CATCHWORDS:	Workers Compensation - Costs - s110 Workplace Injury Management and Workers Compensation Act 1998 - interest payable on costs not quantified at time order is made - date from which costs order operates - court's discretion to award interest.
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation Act 1998, s110
CASES CITED:	Minister Administering the Environmental Planning and Assessment Act, 1979 v Carson (1994) 35 NSWLR 342 Magick v Department of Health (1998) Taylor v TNT Australia Limited (1999) 18 NSW Comp CR 6
DECISION:	1) Judgment below set aside; in lieu thereof a declaration that the appellant is entitled to interest on the full amount of costs;; 2) Respondent to pay the appellant's costs of the appeal and in the court below.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA: 40894/99

SPIGELMAN CJ

MEAGHER JA

POWELL JA

Wednesday 14 February 2001

SAMUEL SCOTT DYKTYNSKI v BHP TITANIUM MINERALS PTY LTD

JUDGMENT

1   SPIGELMAN CJ: I invite Meagher JA to deliver the first judgment.

2   MEAGHER JA: This is an appeal from her Honour Judge O'Toole. It concerns the question of when interest runs on a costs order.

3   The position is that on 3 October 1997 her Honour made orders in favour of a worker which included the order that the respondent (that is the employer) pay the applicant's costs. The costs were never assessed but they were eventually agreed by the solicitors for the parties and payment was made fairly soon after that agreement, on 15 September 1998.

4   The solicitors for the worker, the present appellant, then sought interest on the costs. This request was refused by the employer, which led to the present application.

5   The application is a notice of motion whereby the worker seeks orders for interest on his costs calculated at various different dates. Her Honour dismissed the application and I shall come to her reasons in a moment. Before I do so I think it is necessary to set out briefly the statutory provisions governing the matter.

6 There is only one section of one Act which seems to me of any significance; namely, s 110 of the Workplace Injury Management and Workers Compensation Act (1998). It provides in sub-s (1):

"(1) Unless the Compensation Court orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Court as is from time to time unpaid.
(2) Interest payable under sub-section (1) in respect of any sum ordered to be
paid:
(a) is to be calculated as from the date when the order was made or from such later date as the Court in any particular case fixes."
Sub-section (3) states:
"Despite sub-sections (1) and (2), where:
(b) the amount of costs assessed is
paid in full within twenty-one
days after that amount is
assessed, interest is not
payable on the amount so paid,
unless the Court otherwise orders."

7 Her Honour gave a number of reasons why she refused to accede to the worker's application. The first one is that s 110(1) only refers to the amount of any sum ordered to be paid and when she ordered the employer to pay the worker's costs they were at that stage unquantified and being unquantified did not amount to “a sum”. In this matter her Honour's reasons are embodied in the following words:

"In broad summary, the employer's principal argument is the operation of the Act is confined relevantly to cases in which this court orders parties to pay a specified sum for costs and/or disbursements. The employer contends my order did not oblige the employer to pay the sum for costs and disbursements and therefore the attorney is not entitled to any of the orders sought in this motion."

8   In my view, that is a wholly incorrect analysis of the position. That an order for the payment of costs is an order to pay a sum of money is perfectly clear. It is true that at the stage when the order is made the sum of money is unquantified, but through various mechanisms it later becomes quantified. (Id certum est quod certum reddi potest.)

9   That this is true of the costs order is evident not only from first principles but also from a decision of this court in Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342. In truth, that case was dealing with a different section of a different Act, but it would seem to me one sufficiently similar to the present case to be entirely relevant to it. Apart from authority, the actual wording of the text of s 110 likewise seems to me to demolish her Honour’s argument because sub-s (3)(b) says the amount of costs assessed is to be paid within twenty-one days after the amount is assessed. That must be based on an assumption that the order covers an order for an amount which is not yet quantified. So the basic proposition that her Honour advocated seems to me to be beside the point.

10 The next point which is raised about the operation of the section in the present circumstances is the question of from what date the order for the payment of costs operates. In my view, it operates from the date of the making of the order. Again, that is in line with the normal principles applied in similar legislation, which is again set out in Carson's case and is the Incipitur rule. The fact that the sum was not quantified when the order was made does not stop the order operating from that date in this case any more than it did in Carson's case. Moreover, s 110(2), it seems to me, has the same result. It was sub-s (2) that said that interest ordered should be paid and be calculated from the day when the order was made. In the present case the interest is calculated from 3 October 1997.

11   I might add that although there are some slight differences, the view I advocate seems to have been taken in the Workers Compensation Court by his Honour Judge Geraghty which conflicts with what her Honour decided in the present case. I refer to the decision of Magick v Department of Health (unreported 14 December 1998) and Taylor v TNT Australia Limited (1999) 18 NSW Comp CR 6.

12 The next matter concerns the question of discretion. The worker was content to put his case either on the grounds of the necessity for an additional order as of right or, alternatively, by discretion. In my view, both applications were misconceived. The worker did not have to beg for an award of interest because s 110 already gave him one. Nor did he have to invoke the court's discretion to obtain such an order. The section does not say that an award of interest requires an exercise of the court's discretion. The section says quite to the contrary. I am of the view that the section shows that the recipient of an order for costs carrying with it interest is entitled to that interest as from the date the order was made, unless the court otherwise orders.

13   I cannot see how her Honour embarked upon the question of exercise of discretion unless there were a counter motion from the employer asking the court to disallow interest. There was no such counter motion before the court.

14   In those circumstances, I am of the view her Honour's order should be set aside and in lieu thereof there should be a declaration that the worker, the applicant below, is entitled to interest on the full amount of the agreed costs as from the date 3 October 1997, and until 15 September 1998. The respondent should pay the appellant’s costs of the appeal and of the motion before her Honour Judge O’Toole. These are the orders which I would recommend.

15   SPIGELMAN CJ: I agree.

16   POWELL JA: I also agree.

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